B-125935 February 7, 1955

B-125935 February 7, 1955

Honorable John Marshall Butler United States Senate

Dear Senator Butler

Reference is made to your letter of October 28, 1955, and subsequent correspondence, relative to the dam being constructed by the Corps of Engineers, Department of the Army, on the Potomac River at Little Falls as a part of the water supply system of the District of Columbia, and requesting a determination as to whether funds have been appropriated for the inclusion of a fish ladder at said dam. Reports on the matter which were requested by this Office from the Department of the Army and the Board of Commissioners of the District of Columbia havbe been received and considered together with the report from the Department of the Interior transmitted with your letter of October 28.

It is clear that the plans for the Little Falls Dam as first proposed to and accepted by the Congress did not contemplate the inclusion of a fish ladder or other means of permitting fish to pass over the dam. Likewise, no fish ladder was included in the original estimate of $6,985,000 for the cost of this dam and its associated pumping station and tunnel. However, this estimate was increased at the time congressional hearings were being held on the District of Columbia appropriations for 1954 by the sum of $912,000. The following descussion appears on pages 607 and 608 of the "Hearings before a Subcommittee of the Committee on Appropriations, House of Representatives, 83d Congress, 1st Passion, District of Columbia Appropriations, 1954":

"Mr. Wilson. The next one is the Little Falls pumping station dam and tunnel.

"Mr. Spith. We are not so fortunate with this one. The budget exitimate was made in 1951 and since then there have been increased costs in labor, materials, machinery, and electrical operating and control equipment, and so forth.

"This project is of prime importance for the supply of water to the District. We find now that our original estimated cost of $6,988,000 has been increased to $7,900,000.

"There are several reasons for this increase. The one I have mentioned, the increase in cost. At the time of the original estimate it was thought that National Capital Planning Commission would acquire lands along the Potomac River where a part of out works would be situated but the contrary has been the case and now Washington aqueduct has to acquire the lands.

"The Fish and Wildlife Service has indicated that a fishway must be built in connection with the dam and no prevision was made heretofore, for that item.

"The designs, plans, and specifications will be ready in the spring, the early spring of 1954 for advertising for bids to let this project for construction under a contract.

"Mr. Wilson. How much of an increase is this you are requesting over your original esitmate?

"Mr. Smith. We are requesting $912,000.

"Mr. Wilson. Percentagewise, that is what?

"Mr. Smith. Approximately one-seventh, or about 13 percent.

"Mr. Hunter. Included in your new estimate are some additional items, such as land and a fish ladder.

"Mr. Smith. Yes.

"Mr. Hunter. How much will that cost?

"Mr. Smith. The lands will cost approximately $70,000. Ths fish ladder can go from $50,000 to $250,000, depending on what the Fish and Wildlife Service will approve. They have you by the tail on a downhill pull, there."

Also, there appears on page 609 of those hearings the following justification of the increased estimate:

"The budget estimate for the Little Falls pumping station, dam, and tunnel was made during the summer of 1951 ans was in the amount of $6,988,000. In the intervening time to the present date, costs have increased considerably in such fields as labor, construction materials, and electrical and mechanical equipment. Also, at the time the budget estimate was made, it was anticipated that the National Capital Planning Commission would have acquired certain lands along the Potomac River by the Time it would be required for the Little Falls project. Ths contrary has been the same and the Washington Aquaduct now must acquire the necessary lands. Since the budget esitmate was made, the Fish and Wildlife Service has indicated that a fishway must be built in connection with the dam. These conditions makt it necessary to revise the budget estimate to $7,900,000 of by an increase of $912,000. The designs, plans, and specifications for the construction of the Little Falls project will be completed in the early spring of 1954 ready for advertisement. The $2,510,000 should be appropriated for the fiscal year 1954 so that the procurement of pumping machinery, valves, piping, electrical swithgear and control equipment, lands, and the project construction may proceed. It is estimated now that a balance of $2,900,000 will be required for appropriation in 1955 to complete the project."

In view of the above, there can be no doubt that the $912,000 increase is the estimated cost of construction of the Little Falls Dam project was for the express purpose, among other things, of building a fishway in connection with the dam. Moreover, the hearings on the District of Columbia appropriations for 1954, 1955, and 1956 and the District of Columbia appropriation acts for these years indicate that the sums appropriated in these acts for capital outlay of the Washington Aquaduct have been made on the basis of the revised estimate for the Little Falls Dam without such reduction as must have been made had the Congress rejected the fishway.

Where there has been included in budget estimates submitted to the congressional committees as amount expressly requested for a specific purpose not otherwise prohibited by law, such amount has been appropriated by the Congress--as appears to be the case here--the accounting officers of the Government generally have recognized the availability of the appropriation for such purpose even though no express provision therefore is made. 35 Comp. Gen. 306; 28 id. 296; 26 id. 545; B-1251?4, September 16, 1955 B-51630; September 11, 1945; B-21125, August 7, 1942. Cf. B- 76841; August 23, 1948. Indeed, it has been said that the use of appropriated funds for a purpose other than that presented to the Congress in justification of the request for funds wloud be sufficiently questionable as to require this Office to make a complete report of the facts to the Congress, even though the language contained in the appropriation act itself was brad enough that the money possibly could be considered as legally available for such purpose. B-118357; February 17, 1954. While the full amount of the revised estimate has not as yet been appropriated, it is apparent from the hearings on the District of Columbia appropriation acts involved that this is due not to a rejection of the fishway by the Congress but rather to the customary practice in connection with construction projects of this nature of appropriation for such fiscal year only such portion of the total estimate as it is believed will be needed for that fiscal year.

Accordingly, it is our opinion that the Congress has both approved and appropriated money for a fishway at the Little Falls Dam. However, it is apparent that this authorization and appropriation is permissive only and not mandatory and does not constitute a positive direction from the Congress that a fishway be constructed. In the event that the Department of the Army still adheres to the views expressed in its letter of December 9, 1955, copy of which was sent to you with uor letter of December 16, 1955, it is apparent that further action by the Congress is necessary if the construction of a fishway is desired.

Sincerely yours,

Joseph Campbell Comptroller General of the United States