B-144887, MARCH 16, 1961, 40 COMP. GEN. 520

B-144887, MARCH 16, 1961, 40 COMP. GEN. 520

HIGHWAYS - CONSTRUCTION - REPLACEMENT ROADS CONSTRUCTED BY CORPS OF ENGINEERS THE PROVISION IN SECTION 207 (B) OF THE FLOOD CONTROL ACT OF 1960, 33 U.S.C. 701R-1, THAT REPLACEMENT ROADS MADE NECESSARY AS THE RESULT OF THE CONSTRUCTION OF WATER RESOURCE PROJECTS SHOULD BE COMPARABLE IN DESIGN AND STANDARDS TO THOSE OF THE STATE AND OF THE SAME CLASSIFICATION AS THE ROAD BEING REPLACED, MAKES OBSOLETE THE CORPS OF ENGINEERS POLICY OF "MANIFESTATION OF INTENT" UNDER WHICH EXTRA COSTS FOR IMPROVED ROADS BEYOND EXISTING DESIGN STANDARDS WOULD BE BORNE BY THE CORPS; THEREFORE, IN THE REPLACEMENT OF AN OREGON HIGHWAY, THE CORPS OF ENGINEERS SHOULD NOT CONTRIBUTE THE AMOUNT OF EXCESS COSTS INCURRED IN COMPLETING THE RELOCATED ROAD TO INTERSTATE STANDARDS OVER WHAT WOULD HAVE BEEN REQUIRED TO COMPLETE THE ORIGINAL ROAD TO INTERSTATE STANDARDS. UNDER SECTION 207 (B) OF THE FLOOD CONTROL ACT OF 1960, 33 U.S.C. 701R-1, WHICH AUTHORIZES THE CHIEF OF ENGINEERS TO CONSTRUCT SUBSTITUTE ROADS REQUIRED INCIDENT TO WATER RESOURCES PROJECTS TO DESIGN STANDARDS COMPARABLE TO THOSE OF THE STATE IN WHICH THE ROAD IS LOCATED FOR ROADS OF THE SAME CLASSIFICATION AS THE ROAD BEING REPLACED BASED ON THE EXISTING TRAFFIC AT THE TIME OF TAKING, THE CORPS OF ENGINEERS IS NOT REQUIRED TO CONTRIBUTE TO COSTS OF REAL ESTATE ACQUISITION TO CONSTRUCT A REPLACEMENT ROAD TO INTERSTATE STANDARDS BASED ON 1975 TRAFFIC BUT ONLY TO THE COST OF REAL ESTATE REQUIRED FOR A ROAD BUILT TO CURRENT DESIGN STANDARDS.

TO THE SECRETARY OF THE ARMY, MARCH 16, 1961:

BY LETTER OF JANUARY 18, 1961, THE FORMER ASSISTANT SECRETARY OF THE ARMY (1MANPOWER, PERSONNEL AND RESERVE FORCES) REQUESTED OUT OPINION AS TO THE INTERPRETATION AND APPLICATION OF THE PROVISIONS OF SECTION 207 (B) OF THE FLOOD CONTROL ACT OF 1960, 74 STAT. 501, 33 U.S.C. 701R-1, IN THE PROPOSED RELOCATION OF OREGON U.S. HIGHWAY NO. 30 AT JOHN DAY LOCK AND DAM PROJECT ON THE COLUMBIA RIVER. SECTION 207 (B), WHICH APPLIES TO THE PROJECT HERE INVOLVED, PROVIDES:

(B) THAT, FOR SUCH WATER RESOURCES PROJECTS, UNDER CONSTRUCTION OR TO BE CONSTRUCTED, WHEN THE TAKING BY THE FEDERAL GOVERNMENT OF AN EXISTING PUBLIC ROAD NECESSITATES REPLACEMENT, THE SUBSTITUTE PROVIDED WILL AS NEARLY AS PRACTICABLE SERVE IN THE SAME MANNER AND REASONABLY AS WELL AS THE EXISTING ROAD. THE CHIEF OF ENGINEERS IS AUTHORIZED TO CONSTRUCT SUCH SUBSTITUTE ROADS TO DESIGN STANDARDS COMPARABLE TO THOSE OF THE STATE IN WHICH THE ROAD IS LOCATED, FOR THE ROADS OF THE SAME CLASSIFICATION AS THE ROAD BEING REPLACED. THE TRAFFIC EXISTING AT THE TIME OF THE TAKING SHALL BE USED IN THE DETERMINATION OF THE CLASSIFICATION.

U.S. HIGHWAY NO. 30 AS IT NOW EXISTS IS A TWO-LANE HIGHWAY, 22 FEET WIDE, WELL CONSTRUCTED AND MAINTAINED, CARRYING AN AVERAGE DAILY TRAFFIC OF APPROXIMATELY 3,000 VEHICLES. IT HAS BEEN INCORPORATED AS INTERSTATE NO. 80N INTO THE NATIONAL SYSTEM OF INTERSTATE AND DEFENSE HIGHWAYS UNDER AUTHORITY OF SECTION 7 OF THE FEDERAL AID HIGHWAY ACT OF 1944, 23 U.S.C. 60. THE DESIGN STANDARDS FOR HIGHWAY 30 UNDER INTERSTATE SYSTEM CRITERIA CALL FOR CONSTRUCTION OF THAT PORTION OF THE HIGHWAY WHICH WILL BE INUNDATED BY THE JOHN DAY DAM AND RESERVOIR TO A FOUR-LANE DIVIDED HIGHWAY WITH FULL CONTROL OF AND INTERCHANGES AT ALL POINTS OF ACCESS. THESE STANDARDS ARE DESIGNED TO ACCOMMODATE THE TYPES AND VOLUMES OF TRAFFIC FORECAST FOR THE YEAR 1975. MINIMUM STANDARDS FOR THE INTERSTATE SYSTEM HIGHWAYS IN OREGON WITH LOW 1975 TRAFFIC VOLUMES REQUIRE THE CONSTRUCTION OF TWO-LANE HIGHWAYS WITH FOUR LANES PROVIDED ON ALL GRADES IN EXCESS OF THREE PERCENT, AT ALL INTERCHANGES, AND ON ALL SECTIONS LESS THAN TWO TWO- LANE SECTIONS MUST BE SUFFICIENT TO PERMIT FUTURE DEVELOPMENT OF A DIVIDED HIGHWAY.

ON THE BASIS OF THE FOREGOING, THE STATE OF OREGON AND THE FEDERAL BUREAU OF PUBLIC ROADS TAKE THE POSITION THAT THE CORPS OF ENGINEERS CONTRIBUTE TO THE COST OF RELOCATING U.S. 30 (I-80N), AS NECESSITATED BY THE CONSTRUCTION OF JOHN DAY LOCK AND DAM, ON THE FOLLOWING BASIS: (A) THE COST OF CONSTRUCTING THE REQUIRED SECTIONS TO MINIMUM INTERSTATE STANDARDS FOR OREGON; PLUS (B) THE EXCESS COST TO BE INCURRED FOR ADDING TWO TRAFFIC LANES TO SUCH MINIMUM CONSTRUCTION IN THE NEW LOCATION OVER WHAT WOULD HAVE BEEN INCURRED FOR THE ADDITIONAL TWO LANES WERE THEY ADDED TO A MINIMUM STANDARD INTERSTATE HIGHWAY ON THE PRESENT ALIGNMENT IF THE JOHN DAY DAM WERE NOT BUILT. THE REQUEST FOR CONTRIBUTION AS TO PART (A) IS BASED UPON THE FACT THAT U.S. 30 IS CLASSIFIED AS ,1INTERSTATE" AND UPON THE VIEW THAT SUCH CLASSIFICATION IS CONTROLLING FOR THE PURPOSE OF APPLYING SECTION 207 (B). PART (B) OF THE REQUEST IS BASED UPON LONG- STANDING CORPS OF ENGINEERS POLICY WITH RESPECT TO HIGHWAY RELOCATIONS. THAT POLICY AND ITS BACKGROUND MAY BE SUMMARIZED AS FOLLOWS:

DURING THE PERIOD 1946-49 THE CORPS HELD TO "REPLACEMENT IN KIND" IN RELOCATING HIGHWAYS. THIS POLICY WAS RESTATED IN 1949 TO PERMIT PAYMENT OF THE COST OF ADJUSTMENTS AND RELOCATIONS, TYPE FOR TYPE, BUT IN ACCORDANCE WITH MODERN CONSTRUCTION AND ENGINEERING PRINCIPLES. FOR EXAMPLE, A GRAVEL ROAD WOULD BE REPLACED WITH A MODERN GRAVEL ROAD.

ALSO, IN 1949 RECOGNITION WAS ACCORDED TO "MANIFESTATION OF INTENT" ON THE PART OF THE ROAD OWNER. THE CHIEF OF ENGINEERS, IN PROPER CASES, WHERE A STATE MANIFESTED AN INTENTION TO IMPROVE A HIGHWAY BEYOND ITS EXISTING STANDARD, COULD AUTHORIZE PAYMENT FOR EXCESS COSTS WHERE CONSTRUCTION OF THE WATER RESOURCE PROJECT OPERATED TO INCREASE THE COST OF THESE IMPROVEMENTS ON THE RELOCATION ROUTE. THE INTENTION OF A STATE OR POLITICAL SUBDIVISION THEREOF TO IMPROVE A ROAD COULD BE MANIFESTED BY (A) AN APPROPRIATION OR ALLOCATION OF FUNDS FOR THE IMPROVEMENT; (B) AN AGREEMENT FOR CONSTRUCTION OF THE IMPROVEMENT; (C) ISSUANCE OF INVITATIONS TO BID; OR (D) IMPROVEMENT OF A MAJOR PORTION OF THE HIGHWAY AND A FIRM PROGRAM FOR COMPLETION THEREOF, INCLUDING THE SECTION TRAVERSING THE RESERVOIR PROJECT. THIS MANIFESTATION OF INTENT POLICY WAS EXTENDED IN 1959 TO INCLUDE HIGHWAYS IN THE INTERSTATE SYSTEM.

IN JULY 1960, THE HIGHWAY RELOCATION POLICY OF THE CORPS WAS AGAIN RESTATED TO INCLUDE THE PROVISIONS OF SECTION 207 (B). THE LANGUAGE OF SECTION 207 (B) WAS INTERPRETED IN CORPS OF ENGINEERS REGULATIONS TO MEAN THAT AFTER THE CLASSIFICATION OF THE HIGHWAY HAS BEEN DETERMINED BY THE TRAFFIC EXISTING AT THE TIME OF TAKING, THE OBLIGATION OF THE CORPS IS CONFINED TO PROVIDING A NEW HIGHWAY TO THIS CLASSIFICATION AND THERE CANNOT BE INCLUDED AS A PROJECT COST, ANY CONSTRUCTION WHICH CONTEMPLATES PROJECTION FOR FUTURE INCREASE IN TRAFFIC. THE MANIFESTATION OF INTENT CONCEPT WAS CONTINUED. THE TOTAL EFFECT WAS TO ACCEPT AS A FEDERAL COST NOT ONLY CURRENT DESIGN STANDARDS BUT ALSO ALL EXTRA COSTS WHICH WOULD BE OCCASIONED THE OWNER AS A DIRECT RESULT OF THE CONSTRUCTION OF THE WATER RESOURCE PROJECT.

HOWEVER, NOTWITHSTANDING ITS OWN INSTRUCTIONS, THE CORPS OF ENGINEERS IS NOW OF THE VIEW THAT THERE IS NO ROOM FOR THE MANIFESTATION OF INTENT POLICY UNDER THE PROVISIONS OF SECTION 207 (B) AND THAT THE CORPS' CONTRIBUTION TOWARD RELOCATING U.S. 30 CANNOT EXCEED THE ESTIMATED COST OF CONSTRUCTING A REPLACEMENT DESIGNED UNDER CURRENT STATE STANDARDS TO CARRY THE CURRENT TRAFFIC LOAD. AND THE CURRENT STATE STANDARDS APPLIED SHOULD NOT IN THE CORPS' VIEW BE THOSE APPLICABLE TO THE INTERSTATE SYSTEM WHICH IS DESIGNED TO ACCOMMODATE 1975 RATHER THAN EXISTING TRAFFIC VOLUMES.

OUR OPINION IS REQUESTED CONCERNING THE FOLLOWING SPECIFIC QUESTIONS AND PROPOSALS OF THE CHIEF OF ENGINEERS:

1. IS APPLICATION OF THE MANIFESTATION OF INTENT PRINCIPLE AS OUTLINED HEREIN AND, AS REQUESTED BY THE STATE OF OREGON, PROPER IN VIEW OF THE LANGUAGE OF SECTION 206 (B/? THE CHIEF OF ENGINEERS PROPOSES TO ELIMINATE THE PRINCIPLE OF MANIFESTATION OF INTENT FOR THE REASON THAT HE NOW HAS NO AUTHORITY FOR THE PAYMENT IN HIGHWAY RELOCATIONS OF ANY EXCESS COST UNDER MANIFESTATION OF INTENT. THOSE COSTS WOULD RELATE TO PROVISION OF FUTURE TRAFFIC AND PAYMENT THEREOF BY THE CHIEF OF ENGINEERS WOULD CONTRAVENE THE EXPRESS LIMITATION IN SECTION 207 (B) THAT THE TRAFFIC EXISTING AT THE TIME OF TAKING BE USED IN DETERMINING CLASSIFICATION OF THE ROAD.

2. IF YOUR DECISION ON ELIMINATION OF MANIFESTATION OF INTENT IS IN CONCURRENCE WITH THE PROPOSAL OF THE CHIEF OF ENGINEERS, IT IS PROPOSED FURTHER THAT (A) REQUEST OF THE BUREAU OF PUBLIC ROADS FOR FULL PAYMENT BY THE WATER RESOURCE PROJECT OF REAL ESTATE ACQUISITION COSTS IS TO BE DENIED FOR THE REASONS STATED IN THE PRECEDING PARAGRAPH.

3. WOULD THE CHIEF OF ENGINEERS EXCEED THE AUTHORITY GRANTED IN SECTION 207 (B) IF HE PROVIDES FROM WATER RESOURCE PROJECT FUNDS A SUBSTITUTE HIGHWAY FACILITY TO STANDARDS DESIGNED, AS IN THIS CASE BY THE STATE OF OREGON TO MEET INTERSTATE HIGHWAY REQUIREMENTS AND WHICH STANDARDS HAVE BEEN APPROVED BY THE BUREAU OF PUBLIC ROADS PURSUANT TO 23 U.S.C. 109 AS MEETING THE TYPES AND VOLUMES OF TRAFFIC FORECAST FOR THE YEAR 1975. THE VIEW OF THE CHIEF OF ENGINEERS IS THAT IN THE PROPOSED RELOCATION OF A HIGHWAY (SUCH AS U.S. 30 IN OREGON) TO STANDARDS APPROVED BY THE BUREAU OF PUBLIC ROADS UNDER 23 U.S.C. 109 AS MEETING THE INTERSTATE HIGHWAY REQUIREMENT FOR TRAFFIC FORECAST 1975, THE CHIEF OF ENGINEERS IS PRECLUDED FROM PARTICIPATION IN THE COST OF SUCH RELOCATION BEYOND THAT ESSENTIAL TO CONSTRUCT A SUBSTITUTE HIGHWAY FOR TRAFFIC EXISTING AT THE TIME OF TAKING. THE STANDARDS OF THE STATE OF OREGON PUBLISHED IN 1953 ARE CONSIDERED TO BE THE PROPER CRITERIA FOR DETERMINING CLASSIFICATION AND DESIGN STANDARDS TO WHICH THE STATE WOULD BUILD IF THE INTERSTATE PROBLEM WAS NOT PRESENT.

PRIOR TO ENACTMENT OF THE FLOOD CONTROL ACT OF 1960, THERE WAS NO STATUTE SETTING FORTH THE BASIS UPON WHICH THE CHIEF OF ENGINEERS WAS REQUIRED TO REPLACE ROADS ON ACCOUNT OF CONSTRUCTION OF WATER RESOURCE DEVELOPMENT PROJECTS. BEFORE THE 1960 ACT ROADS WERE REPLACED UNDER GENERAL PROJECT AUTHORITY IN ACCORD WITH POLICIES ESTABLISHED IN REGULATIONS ISSUED BY THE CHIEF OF ENGINEERS. SEE 33 U.S.C. 701C-1, ID. 701Q. BUT REGARDLESS OF CORPS POLICY IN DETERMINING THE MEASURE OF COMPENSATION TO BE PAID BY THE UNITED STATES FOR CONDEMNING PUBLIC ROADS, IT MAY BE STATED AS A GENERAL RULE THAT IF IT IS NECESSARY FOR THE CONDEMNEES TO PROVIDE SUBSTITUTE ROADS IN ORDER TO READJUST THEIR SYSTEM OF HIGHWAYS THEY ARE ENTITLED TO THE COST OF CONSTRUCTING ADEQUATE SUBSTITUTE ROADS. UNITED STATES V. DES MOINES COUNTY, IOWA, 148 F.2D 448, 160 ALR 953; JEFFERSON COUNTY V. TENNESSEE VALLEY AUTHORITY, 146 F.2D 564, CERT. DEN. 324 U.S. 871, REH. DEN. 324 U.S. 891. THE MEASURE OF COMPENSATION HAS BEEN HELD TO TURN UPON WHAT A STATE WOULD BE LEGALLY COMPELLED TO DO BY WAY OF IMPROVING EXISTING OR CONSTRUCTING NEW ROADS FOR THE PROPERTY OWNERS LIVING IN THE NEIGHBORHOOD AFFECTED, THE COURT SAYING THAT "1THE QUESTION IS WHAT IS THE REASONABLE THING UNDER ALL THE CIRCUMSTANCES," AND "NOT WHAT THE STATE WANTS TO BUILD; NOT WHAT THE PROPERTY OWNERS WANT FOR THEIR PROPERTIES; AND NOT WHAT IS THE DESIRABLE THING TO DO.' UNITED STATES V. ALDERSON, 53 F.1SUPP. 528. STATE OF WASHINGTON V. UNITED STATES, 214 F.2D 33. SEE ALSO UNITED STATES V. WHEELER TOWNSHIP, 66 F.2D 977, WHEREIN DAMAGES WERE CONSIDERED TO INCLUDE THE EXCESS COST OF CONSTRUCTING SUBSTITUTE HIGHWAYS WHERE THE HIGH COST WAS BROUGHT ABOUT BY REASON OF CERTAIN WATER

CONDITIONS.

APPARENTLY, THE CORPS OF ENGINEERS ROAD REPLACEMENT POLICY PRIOR TO THE ENACTMENT OF SECTION 207 (B) WAS BASED GENERALLY UPON THE REQUIREMENTS FOR JUST COMPENSATION AS DEVELOPED BY JUDICIAL DETERMINATIONS. AND WHILE PROVISION FOR "MANIFESTATION OF INTENT" MAY HAVE GONE SOMEWHAT BEYOND WHAT WAS REQUIRED IN SOME CASES, IT APPEARS THAT THE POLICY WAS PREDICATED UPON THE DESIRE TO DO FULL EQUITY, PARTICULARLY IN THOSE CASES WHERE REPLACEMENT ROADS TO FULL CURRENT LOCAL STANDARDS WERE NOT BEING PROVIDED. BUT SECTION 207 (B) IN PROVIDING FOR SUBSTITUTE ROADS "TO DESIGN STANDARDS COMPARABLE TO THOSE OF THE STATE IN WHICH THE ROAD IS LOCATED, FOR ROADS OF THE SAME CLASSIFICATION AS THE ROAD BEING REPLACED," RENDERS THE MANIFESTATION OF INTENT POLICY OBSOLETE. THE FOLLOWING LANGUAGE ON PAGE 193 OF SENATE REPORT NO. 1524, 86TH CONGRESS, 2D SESSION, SHOWS CLEARLY THE PURPOSE OF ENACTING SECTION 207 (B), AND IT IS READILY APPARENT THAT SUBSTITUTION ROADS PROVIDED IN ACCORDANCE WITH THE CRITERIA SET FORTH FULLY MEET THE JUST COMPENSATION REQUIREMENTS LAID DOWN BY THE COURTS:

THIS SECTION ALSO CLARIFIES THE RESPONSIBILITY OF THE CHIEF OF ENGINEERS WITH RESPECT TO REPLACEMENT OF EXISTING PUBLIC ROADS NECESSITATED BY CONSTRUCTION OF WATER RESOURCE DEVELOPMENT PROJECTS, AS TO SERVICE TO BE PROVIDED AND DESIGN STANDARDS. IT IS NOT THE INTENTION OF THE COMMITTEE TO CONSTRUE THAT EVERY ROAD TAKEN IN A RESERVOIR AREA SHALL BE REPLACED, BUT WHERE A REPLACEMENT ROAD IS PROVIDED, IT SHOULD SERVE AS NEARLY AS PRACTICABLE, IN THE SAME MANNER AND AS WELL AS THE ROAD IT REPLACES. SHOULD SERVE THE EXISTING TRAFFIC OF THE LOCALITY, AS DIRECT AS POSSIBLE WITHOUT WIDE DETOURS, WITH ADEQUATE DESIGN STANDARDS TO ACCOMMODATE SUCH TRAFFIC. THE DESIGN STANDARDS FOR THE SUBSTITUTE ROAD WILL BE BASED ON THE TRAFFIC EXISTING AT THE TIME OF TAKING, IN DETERMINATION OF THE CLASSIFICATION OF THE SUBSTITUTE ROAD.

ACCORDINGLY, THE POSITION OF THE STATE OF OREGON AND THE BUREAU OF PUBLIC ROADS--- THAT THE CORPS OF ENGINEERS SHOULD CONTRIBUTE THE AMOUNT OF EXCESS COSTS TO BE INCURRED IN COMPLETING THE RELOCATED ROAD TO INTERSTATE STANDARDS OVER WHAT WOULD HAVE BEEN REQUIRED TO COMPLETE THE ORIGINAL U.S. 30 TO INTERSTATE STANDARDS--- IS NOT JUSTIFIED; AND THE ANSWER TO THE FIRST QUESTION PRESENTED IS IN THE NEGATIVE, ELIMINATION OF THE MANIFESTATION OF INTENT PRINCIPLE BEING PROPER.

WITH RESPECT TO THE CONTENTION THAT THE CORPS OF ENGINEERS SHOULD BE HELD LIABLE FOR RELOCATING U.S. 30 TO MINIMUM INTERSTATE STANDARDS, WHICH INCLUDES THE PROVISION OF RIGHT OF WAY FOR TWO ADDITIONAL LANES ON THOSE STRETCHES WHERE ONLY TWO LANES ARE CONSTRUCTED, THE BUREAU OF PUBLIC ROADS MAKES THE FOLLOWING ANALYSIS, QUOTING FROM REPLY DATED FEBRUARY 9, 1961, BY THE BUREAU TO OUR REQUEST FOR COMMENTS ON THE QUESTIONS PRESENTED:

(1) THIS HIGHWAY IS A PART OF THE NATIONAL SYSTEM OF THE INTERSTATE AND DEFENSE HIGHWAYS OFTEN TERMED THE INTERSTATE SYSTEM. IT WAS SO DESIGNATED ON AUGUST 2, 1947, UNDER THE AUTHORITY OF SECTION 7 OF THE FEDERAL-AID HIGHWAY ACT OF 1944. (2) ON JULY 12, 1956, THE STATES, ACTING THROUGH THE AMERICAN ASSOCIATION OF STATE HIGHWAY OFFICIALS, ADOPTED THE ENCLOSED DESIGN STANDARDS FOR THE INTERSTATE SYSTEM.

(3) THESE STATE STANDARDS WERE APPROVED BY THE COMMISSIONER OF PUBLIC ROADS ON JULY 17, 1956. THEY WERE LATER INCORPORATED INTO BUREAU OF PUBLIC ROADS POLICY AND PROCEDURE MEMORANDUM 40-2.

(4) THESE STATE STANDARDS SUPERSEDE ALL OTHERS, FEDERAL OR STATE, ON ROUTES THAT ARE SELECTED AS THE FINAL LOCATION OF THE INTERSTATE SYSTEM. THEY ARE, IN FACT, STATE STANDARDS FOR THE INTERSTATE SYSTEM.

(5) THESE STATE STANDARDS PROVIDE, IN ACCORDANCE WITH THE BASIC STATUTES, THAT INTERSTATE HIGHWAYS SHALL BE ADEQUATE TO ACCOMMODATE THE TYPES AND VOLUMES OF TRAFFIC FORECAST FOR THE YEAR 1975.

(6) THESE STATE STANDARDS AS SUPPLEMENTED AND APPLIED IN THE INTEREST OF SAFETY AND OVERALL CONSTRUCTION ECONOMY UNDER THE CONDITIONS EXISTING IN OREGON PROVIDE THAT THE INTERSTATE SYSTEM SHALL BE CONSTRUCTED AS A MULTILANE DIVIDED HIGHWAY WITH FULL CONTROL OF ACCESS, EXCEPT THAT CERTAIN PORTIONS WITH LOW 1975 DHV'S (1DESIGN HOURLY VOLUMES) MAY BE CONSTRUCTED AS TWO-LANE HIGHWAYS WITH FOUR LANES PROVIDED ON ALL GRADES IN EXCESS OF THREE PERCENT, AT ALL INTERCHANGES, AND ON ALL SECTIONS BETWEEN THE FOUR- LANE SECTIONS THAT ARE LESS THAN TWO MILES IN LENGTH. THE CONTROLLING DHV USED TO DETERMINE WHETHER A TWO-LANE OR A MULTILANE HIGHWAY IS NECESSARY IS DEPENDENT UPON THE CONDITIONS EXISTING AT THE PARTICULAR LOCATION BUT IS ALWAYS LESS THAN 700. THE RIGHT-OF-WAY OF THE TWO-LANE SECTIONS MUST HAVE SUFFICIENT WIDTH IN ALL CASES SO THAT AN ADDITIONAL TWO LANES CAN BE ADDED IN THE FUTURE AND THE TWO LANES THAT ARE CONSTRUCTED INITIALLY MUST BE LOCATED ON THE RIGHT-OF-WAY IN A POSITION THAT WILL PERMIT THE FUTURE DEVELOPMENT OF A DIVIDED HIGHWAY.

(7) THE 1975 DHV ON THE SECTION OF INTERSTATE 80N THAT WILL BE INUNDATED BY THE JOHN DAY DAM AND RESERVOIR VARIES FROM 950 TO 1070. ALL OF THIS SECTION WILL, THEREFORE, BE BUILT AS A FOUR-LANE DIVIDED HIGHWAY WITH FULL CONTROL OF ACCESS IN ACCORDANCE WITH THE CURRENT PUBLISHED STATE STANDARDS FOR CONSTRUCTION ON THE INTERSTATE HIGHWAY SYSTEM.

(8) EVEN SO, HOWEVER, THE STATE OF OREGON HAS NOT ASKED THE CORPS OF ENGINEERS TO FINANCE THE CONSTRUCTION OF THIS HIGHWAY TO FULL INTERSTATE STANDARDS BUT HAS ASKED ONLY THAT THE CORPS OF ENGINEERS TAKE THE RESPONSIBILITY FOR THE FULL FINANCING OF THE CONSTRUCTION OF A TWO-LANE HIGHWAY ADEQUATE TO ACCOMMODATE THE PRESENT TRAFFIC VOLUME BUT DESIGNED TO PERMIT THE CONSTRUCTION OF THE FOUR-LANE DIVIDED HIGHWAY NEEDED TO ACCOMMODATE THE FORECAST 1975 TRAFFIC VOLUME. THIS HAS BEEN DONE IN DEFERENCE TO THE LANGUAGE CONTAINED IN SECTION 207 (B) OF PUBLIC LAW 86- 645 WHICH PROVIDES FOR THE CONSTRUCTION OF THESE SUBSTITUTE ROADS TO CURRENT DESIGN STANDARDS FOR THE TRAFFIC EXISTING AT THE TIME OF THE TAKING; AND HAS BEEN DONE EVEN THOUGH THE CURRENT STATE STANDARDS FOR THE INTERSTATE HIGHWAY SYSTEM ARE BASED ON FUTURE RATHER THAN CURRENT TRAFFIC VOLUMES.

SECTION 207 (B) AUTHORIZES THE CHIEF OF ENGINEERS TO CONSTRUCT SUBSTITUTE ROADS TO DESIGN STANDARDS COMPARABLE TO THOSE OF THE STATE IN WHICH THE ROAD IS LOCATED, FOR ROADS OF THE SAME CLASSIFICATION AS THE ROAD BEING REPLACED. AND IT IS READILY APPARENT, SINCE THE STATE OF OREGON HAS ADOPTED THE INTERSTATE STANDARDS FOR U.S. 30 HIGHWAY, THAT A TECHNICAL ARGUMENT CAN BE MADE FOR REPLACEMENT OF U.S. 30 TO INTERSTATE STANDARDS BY THE CORPS, UNDER THE PLAIN WORDING OF THE PORTION OF SECTION 207 (B) REFERRED TO. BUT THIS TECHNICAL ARGUMENT MUST FAIL FOR TWO REASONS. FIRST, THE STATUTE SETS FORTH AS A BASIS FOR DETERMINING THE CLASSIFICATION OF A STATE'S HIGHWAY THAT THE TRAFFIC EXISTING AT THE TIME OF THE TAKING SHALL BE USED. WHILE U.S. 30 HAS BEEN CLASSIFIED AS AN INTERSTATE HIGHWAY, THE DESIGN STANDARDS ADOPTED FOR SUCH CLASSIFICATION RELATE TO 1975 RATHER THAN CURRENT TRAFFIC; AND SUCH CLASSIFICATION IS, THEREFORE, MEANINGLESS SO FAR AS THE APPLICATION OF SECTION 207 (B) IS CONCERNED. THE CLASSIFICATION OF U.S. 30 AS AN INTERSTATE HIGHWAY IS IN CONNECTION WITH A PROGRAM OF HIGHWAY IMPROVEMENT INVOLVING THE FEDERAL AS WELL AS STATE GOVERNMENTS. THIS CLASSIFICATION IS NOT IN ANYWAY RELATED TO THE CLASSIFICATION REQUIRED IN CONNECTION WITH SECTION 207 (B). SECOND, THE STATUTE AND THE LANGUAGE QUOTED FROM SENATE REPORT NO. 1524 CLEARLY ESTABLISH THAT THE BASIC PURPOSE IS TO PROVIDE SUBSTITUTE ROADS THAT AS NEARLY AS PRACTICABLE SERVE IN THE SAME MANNER AND REASONABLY AS WELL AS THE ORIGINAL, SUCH PROVISION MAY BE SAID TO BE, IN ESSENCE, MERELY A STATUTORY EXPRESSION OF WHAT THE COURTS HAVE HELD IS GENERALLY REQUIRED AS JUST COMPENSATION FOR THE TAKING OF A PUBLIC HIGHWAY. IN OUR OPINION, IT IS UNREASONABLE TO CONSTRUE SECTION 207 (B) AS REQUIRING THE REPLACEMENT OF A ROAD TO INTERSTATE STANDARDS SOLELY BECAUSE THE ROAD INVOLVED LIES ON THE INTERSTATE SYSTEM. SECTION 207 (B) WAS NOT INTENDED TO RELIEVE EITHER THE STATES OR THE BUREAU OF PUBLIC ROADS FROM THE BURDEN OF IMPROVING HIGHWAYS TO INTERSTATE STANDARDS WHERE THE CORPS OF ENGINEERS RELOCATES A ROAD ON THE SYSTEM. UNLESS CURRENT STATE STANDARDS FOR ROADS OUTSIDE THE INTERSTATE SYSTEM ARE COMPARABLE TO INTERSTATE STANDARDS, REPLACEMENT OF A ROAD BY THE CORPS TO INTERSTATE STANDARDS WOULD GO BEYOND ANY REASONABLE COMPENSATION REQUIREMENT FOR THE ROAD TAKEN. WE DO NOT BELIEVE THAT SUCH A RESULT SHOULD BE READ INTO SECTION 207 (B), A STATUTE DERIVING ESSENTIALLY FROM EQUITABLE CONSIDERATIONS.

ACCORDINGLY, THE PROPOSAL CONTAINED IN PARAGRAPH NUMBERED 2, ABOVE, TO DENY PAYMENT FOR REAL ESTATE ACQUISITION COSTS BEYOND SUCH REAL ESTATE AS IS REQUIRED FOR A REPLACEMENT ROAD TO CURRENT OREGON DESIGN STANDARDS, IS CONCURRED IN; AND THE THIRD QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.

WE UNDERSTAND THAT THERE MAY BE SOME DISPUTE CONCERNING OREGON HIGHWAY DESIGN STANDARDS. APPARENTLY, THE ONLY APPLICABLE DESIGN CRITERIA WHICH CAN BE RELIED UPON ARE THOSE CONTAINED IN THE PUBLISHED "1OREGON STATE HIGHWAY DEPARTMENT, STANDARD ROADBED SECTIONS FOR TWO LANE HIGHWAYS," REVISED NOVEMBER 1953, AND TECHNICAL BULLETIN NO. 19. PERTINENT PAGES OF THE TECHNICAL BULLETIN WERE ENCLOSED WITH THE ASSISTANT SECRETARY'S LETTER, AND THEY DISCLOSE THAT FOR A CLASS A HIGHWAY CARRYING AVERAGE DAILY TRAFFIC OF 3,000-5,000 VEHICLES, THE STANDARD IS TWO 12-FOOT LANES WITH 4-FOOT SHOULDERS IN MOUNTAINOUS TOPOGRAPHY AND 10-FOOT SHOULDERS OTHERWISE. NO PROVISION IS SET FORTH FOR CONTROLLED ACCESS WITH FOUR LANES AT INTERCHANGES OR AT GRADES OF 3 PERCENT OR MORE. THE ASSISTANT SECRETARY POINTS OUT, HOWEVER, THAT OREGON STATE HIGHWAY DEPARTMENT OFFICIALS ADVISE THAT THESE CRITERIA ARE BEING REVISED TO MEET PRESENT TRAFFIC DEMANDS; THAT THE PURPOSE OF THESE STANDARDS IS ONLY TO FURNISH GUIDELINES; AND THAT IN EACH PARTICULAR HIGHWAY RELOCATION OR IMPROVEMENT A PROSPECTUS IS PREPARED WHICH GIVES THE DESIGN STANDARDS TO BE USED AS THE ROADBED SECTION, THE NUMBER OF TRAFFIC LANES, THE TYPE OF INTERCHANGES AND OTHER CRITERIA. TO DEMONSTRATE THE NEW STANDARDS, THE STATE INFORMS THAT IT IS PRESENTLY CONSTRUCTING THE EXISTING NORTH SANTIAM HIGHWAY OUT OF SALEM TO THE STANDARD OF THE MODIFIED INTERSTATE CLASSIFICATION PROPOSED FOR U.S. 30.

FROM THE EVIDENCE OF RECORD WE ARE NOT IN POSITION TO RENDER AN OPINION WITH RESPECT TO THE DESIGN CRITERIA TO BE FOLLOWED IN CALCULATING THE COSTS FOR WHICH THE CORPS OF ENGINEERS IS LIABLE. IT WOULD APPEAR, HOWEVER, THAT IF THE STATE OF OREGON WISHES TO IMPOSE DESIGN CRITERIA OF STANDARDS HIGHER THAN THOSE CONTAINED IN THE PUBLISHED DOCUMENTS REFERRED TO, THE STATE SHOULD BE REQUIRED TO SHOW, AT THE VERY LEAST, THAT THE HIGHER DESIGN CRITERIA HAVE BEEN AND ARE BEING MAINTAINED ON COMPARABLE ROADS. THIS DECISION DOES NOT ADDRESS ITSELF TO A RESOLUTION OF THE QUESTION BUT HOLDS ONLY IN THAT REGARD THAT THE CLASSIFICATION OF U.S. 30 AS AN INTERSTATE HIGHWAY DOES NOT CONTROL SO FAR AS ITS CLASSIFICATION UNDER THE PROVISIONS OF SECTION 207 (B) IS CONCERNED.