B-143075, JULY 19, 1960, 40 COMP. GEN. 21

B-143075, JULY 19, 1960, 40 COMP. GEN. 21

FEDERAL-AID HIGHWAYS - ROADS DAMAGED BY FLOODS, ETC. - GENERAL V. EMERGENCY FUNDS EMERGENCY FUNDS FOR THE REPAIR OR RECONSTRUCTION OF FEDERAL-AID HIGHWAYS, INCLUDING INTERSTATE SYSTEM HIGHWAYS, WHICH ARE DAMAGED AS A RESULT OF FLOODS, HURRICANES, TIDAL WAVES, AND OTHER CATASTROPHES PROVIDED UNDER 23 U.S.C. 125, ARE AVAILABLE FOR THE EMERGENCY REPAIR OR RECONSTRUCTION OF SUCH ROADS TO THE EXCLUSION OF OTHER FUNDS; THEREFORE, THE USE OF FUNDS AUTHORIZED FOR THE CONSTRUCTION OF THE INTERSTATE HIGHWAY SYSTEM UNDER 23 U.S.C. 120 (E) TO RECONSTRUCT A PORTION OF A COMPLETED FEDERAL-AID HIGHWAY, WHICH WAS SUBSEQUENTLY DAMAGED BY FLOOD, IS NOT AUTHORIZED, AND THERE IS NO BASIS FOR CONSIDERING A TWO-LANE HIGHWAY PROJECT COMPLETED AND ACCEPTED TWO YEARS PRIOR TO THE FLOOD AS A PROJECT UNDER CONSTRUCTION ON THE BASIS THAT IT WAS A STAGE PROJECT INCIDENT TO AN OVERALL PLAN FOR A FOUR-LANE HIGHWAY TO PERMIT THE USE OF GENERAL FEDERAL-AID HIGHWAY MONEYS WHICH ARE AVAILABLE FOR REPAIR OF DAMAGES AND INCREASED CONSTRUCTION COSTS OF PROJECTS UNDER CONSTRUCTION.

TO THE SECRETARY OF COMMERCE, JULY 19, 1960:

BY LETTER OF MAY 31, 1960, THE ASSISTANT SECRETARY FOR ADMINISTRATION REQUESTED OUR OPINION AS TO WHETHER A SECTION OF INTERSTATE SYSTEM HIGHWAY DESTROYED BY FLOOD DISASTER MAY BE RECONSTRUCTED WITH THE AID OF FEDERAL INTERSTATE SYSTEM FUNDS, NOTWITHSTANDING THE AVAILABILITY OF EMERGENCY FUNDS UNDER SECTION 125 OF TITLE 23, UNITED STATES CODE.

THE FACTS IN THE MATTER APPEAR TO BE ESSENTIALLY AS FOLLOWS:

DURING NOVEMBER 1959, CERTAIN SECTIONS OF HIGHWAYS ON THE FEDERAL AID SYSTEMS, INCLUDING THE INTERSTATE SYSTEM, IN THE WESTERN PART OF WASHINGTON STATE WERE DESTROYED BY WIDESPREAD FLOODS. THE GOVERNOR OF WASHINGTON DECLARED AN EMERGENCY WHICH DECLARATION HAS BEEN CONCURRED IN BY THE COMMISSIONER OF PUBLIC ROADS. A FINDING HAS BEEN MADE THAT AN ALLOCATION OF EMERGENCY FUNDS UNDER 23 U.S.C. 125 IS WARRANTED TO ASSIST THE STATE IN FINANCING REPAIR OR RECONSTRUCTION OF THE ROADS AND BRIDGES INVOLVED. WHILE THE STATE OF WASHINGTON PROPOSES TO USE THE EMERGENCY FUNDS TO AID IN REPAIRING OR RECONSTRUCTING PART OF THE HIGHWAYS ON THE FEDERAL-AID SYSTEM, ONE OF THE HIGHWAYS DESTROYED IS ON THE INTERSTATE SYSTEM, AND THE STATE DESIRES TO RECONSTRUCT THIS SECTION WITH THE AID OF FUNDS AUTHORIZED FOR THE INTERSTATE SYSTEM UNDER SECTION 108 OF THE FEDERAL-AID HIGHWAYS ACT OF 1956, 70 STAT. 374, 378. UNDER THE PROVISIONS OF 23 U.S.C. 120 (C), THE FEDERAL SHARE OF THE COST OF INTERSTATE SYSTEM PROJECTS IN WASHINGTON PROVIDED FOR BY FUNDS MADE AVAILABLE UNDER THE FEDERAL-AID HIGHWAY ACT OF 1956 IS 90.68 PERCENT. THE FEDERAL SHARE PAYABLE ON ACCOUNT OF ANY REPAIR OR RECONSTRUCTION OF THE INTERSTATE SYSTEM PROVIDED FOR BY FUNDS MADE AVAILABLE UNDER THE EMERGENCY PROVISIONS OF 23 U.S.C. 125 IS LIMITED TO 50 PERCENT. 23 U.S.C. 120 (F).

THE ASSISTANT SECRETARY POINTS OUT THAT THE SECTION OF INTERSTATE HIGHWAY DESTROYED BY THE SUBJECT FLOODS IS WITHIN THE LIMITS OF A SECTION RECENTLY IMPROVED UNDER PROJECT I-90-1 (7) 37, MIDDLE CROSSING SNOQUALMIE RIVER TO CAMP MASON; THAT THIS PROJECT WAS FINANCED WITH THE AID OF FUNDS MADE AVAILABLE UNDER SECTION 108 OF THE FEDERAL-AID HIGHWAY ACT OF 1956, WITH THE FEDERAL SHARE OF THE COST BEING 90.68 PERCENT; THAT THE STANDARDS ADOPTED FOR THE INTERSTATE SYSTEM UNDER 23 U.S.C. 109 REQUIRES A 4-LANE, DIVIDED HIGHWAY AT THIS LOCATION; AND THAT PROJECT I-90-1 (7) 37, REFERRED TO ABOVE, WAS FOR TWO LANES OF THE HIGHWAY. IT IS STATED AS BEING UNDERSTOOD THAT THE PROJECT FOR THE RECONSTRUCTION OF THE DESTROYED HIGHWAY WILL ALSO INCLUDED THE CONSTRUCTION OF THE ADDITIONAL TWO LANES REQUIRED BY THE INTERSTATE STANDARDS. IT IS FURTHER POINTED OUT THAT WHEN AN INTERSTATE HIGHWAY IS UNDER CONSTRUCTION AND NATURAL CAUSES OR UNANTICIPATED CONDITIONS SUCH AS SLIDES AND FLOODS CAUSE DAMAGE AND INCREASE THE COST OF CONSTRUCTION, SUCH INCREASED COSTS ARE CONSIDERED ELIGIBLE FOR PARTICIPATION BY FEDERAL INTERSTATE FUNDS, AND THAT WHILE IN THE INSTANT CASE, A PROJECT FOR IMPROVEMENT OF THE INTERSTATE HIGHWAY INVOLVED HAD BEEN COMPLETED, THE PROJECT WAS A STAGE CONSTRUCTION PROJECT FOR ONLY THE FIRST TWO LANES OF A LARGER HIGHWAY.

YOUR DEPARTMENT'S POSITION THAT FUNDS AUTHORIZED FOR THE INTERSTATE SYSTEM MIGHT PROPERLY BE USED TO RECONSTRUCT THE DESTROYED PORTION OF HIGHWAY, NOTWITHSTANDING THE AVAILABILITY OF EMERGENCY FUNDS FOR SUCH PURPOSE, IS BASED PRIMARILY UPON THE FACT THAT EMERGENCY FUNDS UNDER 23 U.S.C. 125 MAY BE EXPENDED ONLY UPON APPLICATION BY THE STATE HIGHWAY DEPARTMENTS, AND THAT THE SELECTION OF PROJECTS TO BE FINANCED WITH FEDERAL-AID FUNDS IS THE PREROGATIVE OF THE STATES, SUBJECT TO THE APPROVAL OF THE SECRETARY OF COMMERCE. ALSO THE FACT THAT THE CONGRESS HAS DECLARED THE PROMPT AND EARLY COMPLETION OF THE INTERSTATE SYSTEM AS BEING ESSENTIAL TO THE NATIONAL INTEREST AND ONE OF THE MOST IMPORTANT OBJECTIVES OF FEDERAL HIGHWAY LEGISLATION AND THAT THE INTERSTATE HIGHWAY INVOLVED IS AN IMPORTANT ROUTE OF THE INTERSTATE SYSTEM ARE RELIED UPON AS CIRCUMSTANCES THAT MIGHT POSSIBLY JUSTIFY A DECISION THAT THE RECONSTRUCTION WORK MAY BE FINANCED WITH FUNDS AUTHORIZED FOR THE INTERSTATE SYSTEM, NOTWITHSTANDING THE AVAILABILITY OF OTHER FUNDS.

WE UNDERSTAND THAT SHOULD WE DETERMINE INTERSTATE FUNDS ARE NOT ELIGIBLE FOR RECONSTRUCTING THE DESTROYED PORTION OF THE INTERSTATE SYSTEM WHICH HAD ALREADY BEEN CONSTRUCTED TO REQUIRED STANDARDS WITH INTERSTATE FUNDS, EMERGENCY FUNDS WOULD BE USED FOR SUCH PURPOSES AND THAT IN EITHER EVENT, INTERSTATE FUNDS WOULD BE USED FOR CONSTRUCTING THE TWO ADDITIONAL LANES HERETOFORE NOT CONSTRUCTED TO INTERSTATE STANDARDS. IT IS CLEAR THAT THE COST OF CONSTRUCTING THE ADDITIONAL TWO LANES MAY BE FINANCED OUT OF FUNDS AUTHORIZED UNDER SECTION 108 OF THE FEDERAL-AID HIGHWAY ACT OF 1956, AND THAT QUESTION NEED NOT BE FURTHER CONSIDERED. HOWEVER, TO ANSWER THE QUESTION AS TO WHETHER SUCH FUNDS MAY BE USED TO RECONSTRUCT THE PORTION OF COMPLETED FEDERAL-AID HIGHWAY DESTROYED BY FLOOD, WE SHALL EXAMINE THE HISTORY OF THE EMERGENCY FUND PROVISION.

SECTION 125 OF TITLE 23, U.S.C. PROVIDES, IN PERTINENT PART, THAT:

(A) AN EMERGENCY FUND IS AUTHORIZED FOR EXPENDITURE BY THE SECRETARY, SUBJECT TO THE PROVISIONS OF THIS SECTION AND SECTION 120, FOR THE REPAIR OR RECONSTRUCTION OF HIGHWAYS, ROADS, AND TRAILS WHICH HE SHALL FIND HAVE SUFFERED SERIOUS DAMAGE AS THE RESULT OF DISASTER OVER A WIDE AREA, SUCH AS BY FLOODS, HURRICANES, TIDAL WAVES, EARTHQUAKES, SEVERE STORMS, LANDSLIDES, OR OTHER CATASTROPHES IN ANY PART OF THE UNITED STATES. THE APPROPRIATION OF SUCH MONEYS, NOT TO EXCEED $30,000,000, AS MAY BE NECESSARY FOR THE INITIAL ESTABLISHMENT OF THIS FUND AND FOR ITS REPLENISHMENT ON AN ANNUAL BASIS IS AUTHORIZED. * * *

(B) THE SECRETARY MAY EXPEND FUNDS FROM THE EMERGENCY FUND HEREIN AUTHORIZED FOR THE REPAIR OR RECONSTRUCTION OF HIGHWAYS ON THE FEDERAL AID HIGHWAY SYSTEMS, INCLUDING THE INTERSTATE SYSTEM, IN ACCORDANCE WITH THE PROVISIONS OF THIS CHAPTER * * *.

AND SECTION 120 (F) OF TITLE 23, U.S.C. PROVIDES, SO FAR AS THE INTERSTATE SYSTEM IS CONCERNED, THAT:

(F) THE FEDERAL SHARE PAYABLE ON ACCOUNT OF ANY REPAIR RECONSTRUCTION PROVIDED FOR BY FUNDS MADE AVAILABLE UNDER SECTION 125 OF THIS TITLE SHALL NOT EXCEED 50 PERCENTUM OF THE COST THEREOF * * *.

LEGISLATION PROVIDING FOR THE FINANCIAL COOPERATION OF THE FEDERAL GOVERNMENT, ACTING THROUGH THE BUREAU OF PUBLIC ROADS, WITH THE STATE HIGHWAY DEPARTMENTS IN THE REPAIR OR RECONSTRUCTION OF HIGHWAYS DAMAGED BY FLOODS, HURRICANES, EARTHQUAKES OR LANDSLIDES MAY BE TRACED TO SECTION 9 OF THE FEDERAL-AID HIGHWAY ACT OF 1950, 64 STAT. 785, 789, 23 U.S.C. 13A. THAT SECTION AUTHORIZED THE USE OF NOT TO EXCEED $5,000,000 OF FEDERAL-AID HIGHWAY APPROPRIATIONS AS AN EMERGENCY RELIEF FUND FOR REPAIR OR RECONSTRUCTION OF HIGHWAYS AND BRIDGES ON THE PRIMARY OR SECONDARY FEDERAL -AID HIGHWAY SYSTEMS DAMAGED BY FLOODS OR OTHER CATASTROPHES. THE FEDERAL SHARE PAYABLE TOWARD ANY OF THIS EMERGENCY WORK WAS ALSO LIMITED TO 50 PERCENT OF THE COST. BY THE ACT OF OCTOBER 15, 1951, 65 STAT. 421, 23 U.S.C. 13A, THE AMOUNT AUTHORIZED WAS RAISED TO $15,000,000. IT IS MANIFEST FROM THE PROVISIONS OF SECTION 9 OF THE 1950 ACT, AS WELL AS FROM THE PROVISIONS OF OTHER RELIEF LEGISLATION GOING BACK AS FAR AS THE ACT OF MAY 16, 1928, 45 STAT. 539, 570, THAT FEDERAL-AID HIGHWAY FUNDS WERE NOT GENERALLY AVAILABLE WITHOUT LIMITATION FOR THE RECONSTRUCTION OF ROADS DAMAGED BY CATASTROPHE. THE CURRENT PROVISION ESTABLISHING A SEPARATE EMERGENCY FUND RATHER THAN PROVIDING FUNDS FOR SUCH RELIEF THROUGH DIRECT APPROPRIATION OR THROUGH A LIMITATION AGAINST REGULAR FEDERAL-AID HIGHWAY APPROPRIATIONS IS, EXCEPT IN AMOUNT, SUBSTANTIALLY THE SAME WITH RESPECT OF FEDERAL-AID ROADS AS SECTION 7 OF THE FEDERAL-AID HIGHWAY ACT OF 1952. IN COMMENTING ON THE 1952 EMERGENCY FUND PROVISION THE SENATE COMMITTEE ON PUBLIC WORKS STATED AT PAGE 5 OF REPORT NO. 1596, 82D CONGRESS, 2D SESSION, ACCOMPANYING S. 2437, THAT:

THE SECTION IN THE BILL DEALING WITH EMERGENCY REPAIR WORK ON FEDERAL-AID ROADS DAMAGED BY FLOODS OR OTHER DISASTERS HAS BEEN REWRITTEN BY THE COMMITTEE SO AS TO GIVE IT THE STATUS OF A STAND-BY FUND IN THE AMOUNT OF $15,000,000, WHICH WOULD BE AVAILABLE FOR EXPENDITURE WITHOUT FURTHER LEGISLATIVE ACTION OTHER THAN APPROPRIATION OF THE INITIAL FUND AND ITS REPLENISHMENT ON AN ANNUAL BASIS. THIS WILL PERMIT THE COMMISSIONER OF PUBLIC ROADS TO PROCEED PROMPTLY WHEN DISASTERS OCCUR AND IT WILL AVOID ANY DELAY IN CARRYING OUT THE EMERGENCY WORK SUCH AS COULD HAPPEN DUE TO TIME-CONSUMING PROCEDURES IN OBTAINING SEPARATE LEGISLATIVE AUTHORITY WHENEVER THE HITHERTO LIMITED EMERGENCY FUND SHOULD BECOME EXHAUSTED. THE NEW LANGUAGE RETAINS THE PREVIOUSLY ADOPTED REQUIREMENTS WITH RESPECT TO MATCHING OF FUNDS AND DECLARATION OF AN EMERGENCY BY THE GOVERNOR OF THE STATE AFFECTED. (ITALICS SUPPLIED.)

IT IS CLEAR FROM THE QUOTED PORTION OF THE LEGISLATIVE HISTORY THAT THE CONGRESS IN ESTABLISHING THE EMERGENCY FUND DID NOT INTEND TO MAKE FEDERAL -AID HIGHWAY FUNDS GENERALLY AVAILABLE FOR THE REPAIR OR RECONSTRUCTION OF DAMAGED OR DESTROYED HIGHWAYS. INDEED, IF FUNDS WERE GENERALLY AVAILABLE FOR SUCH PURPOSE THERE WOULD HARDLY BE ANY NEED FOR ESTABLISHMENT OF THE EMERGENCY FUND. THERE WOULD NOT APPEAR TO BE ANY QUESTION BUT THAT USE OF THE EMERGENCY FUND FOR THE PURPOSES AUTHORIZED WAS INTENDED TO BE EXCLUSIVE OF ANY OTHER FUNDS.

THE CONSTRUCTION OF TWO LANES OF HIGHWAY UNDER THE PROJECT IN QUESTION WAS COMPLETED AND ACCEPTED BY THE STATE IN NOVEMBER OF 1957. NOTWITHSTANDING THAT THE PROJECT WAS A STAGE PROJECT AND THE OVERALL PLAN FOR THE HIGHWAY INVOLVED CONTEMPLATED THE ULTIMATE CONSTRUCTION OF FOUR LANES, THE ONLY FEDERAL-AID HIGHWAY MONEYS AVAILABLE TO AID IN REPAIR OR RECONSTRUCTION OF THE DAMAGE ARE THOSE PROVIDED BY THE EMERGENCY FUND. WHERE AN INTERSTATE HIGHWAY IS UNDER CONSTRUCTION AND UNANTICIPATED CONDITIONS SUCH AS SLIDES AND FLOODS CAUSE DAMAGE AND INCREASE THE COST OF CONSTRUCTION, SUCH INCREASED COSTS MIGHT WELL BE ELIGIBLE FOR PARTICIPATION WITH FEDERAL INTERSTATE FUNDS. BUT WHERE A HIGHWAY OR ANY PORTION OF A HIGHWAY IS COMPLETED, IT MAY NOT BE SAID THAT HIGHWAY OR PORTION THEREOF IS UNDER CONSTRUCTION OR THAT ANY DAMAGE THERETO HAS INCREASED THE COST OF CONSTRUCTION.

ACCORDINGLY, THE ANSWER TO THE QUESTION PRESENTED MUST BE IN THE NEGATIVE.