B-154561, AUGUST 6, 1964, 44 COMP. GEN. 59

B-154561, AUGUST 6, 1964, 44 COMP. GEN. 59

PUBLIC UTILITIES - RELOCATION - GOVERNMENT LIABILITY THE COST OF RELOCATING AND RECONSTRUCTING A MUNICIPAL SUPPLY PIPE LINE AND CHLORINATOR HOUSE LOCATED ON NATIONAL FOREST LAND UPON REVOCATION OF A SPECIAL USE PERMIT GRANTED BY THE FOREST SERVICE PURSUANT TO 16 U.S.C. 522, THE CONTINUED MUNICIPAL USE OF THE LAND INTERFERING WITH THE PARAMOUNT RIGHT OF THE UNITED STATES TO USE THE LAND, MAY NOT BE CHARGED TO APPROPRIATIONS AUTHORIZED FOR THE CONSTRUCTION OF FOREST DEVELOPMENT ROADS UNDER 23 U.S.C. 205, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, AND NEITHER MAY THE FOREST DEVELOPMENT ROAD FUNDS BE USED TO PAY THE COST OF AN ALTERNATE WATER SUPPLY NECESSITATED BY THE CONSTRUCTION REQUIRED TO RELOCATE THE PIPE LINE AND CHLORINATOR LOCATED ON THE NATIONAL FOREST LAND.

COMPTROLLER CAMPBELL TO THE SECRETARY OF AGRICULTURE, AUGUST 6, 1964:

REFERENCE IS MADE TO LETTER OF JUNE 24, 1964, FROM YOUR ASSISTANT SECRETARY REQUESTING OUR DECISION AS TO WHETHER APPROPRIATIONS FOR CONSTRUCTION OF FOREST DEVELOPMENT ROADS UNDER THE AUTHORITY OF SECTION 205 OF THE ACT OF AUGUST 27, 1950, AS AMENDED, 23 U.S.C. 205, ARE AVAILABLE, INCIDENT TO CONSTRUCTION OF A FOREST DEVELOPMENT ROAD, FOR PAYING THE COST OF RELOCATING AND RECONSTRUCTING A PORTION OF A MUNICIPAL WATER SUPPLY PIPE LINE OWNED BY THE CITY OF LEAVENWORTH, WASHINGTON. IS OUR UNDERSTANDING OF THIS MATTER, WHICH HAS BEEN CONFIRMED BY A MEMBER OF YOUR STAFF, THAT THE PORTION OF PIPE LINE REFERRED TO IS LOCATED ON NATIONAL FOREST LAND UNDER THE FOLLOWING FACTS AND CIRCUMSTANCES.

THE ASSISTANT SECRETARY STATES THAT THE CITY OF LEAVENWORTH OWNS A MUNICIPALLY OPERATED WATER SYSTEM WITH A PIPE LINE THAT EXTENDS APPROXIMATELY 6 MILES UP ICICLE RIVER. THE UPPER END OF THE CITY'S PIPE LINE, INCLUDING THE INTAKE AND A SMALL CHLORINATOR HOUSE, IS LOCATED ON NATIONAL FOREST LAND. THE CITY OCCUPIES THIS AREA UNDER AUTHORITY OF A SPECIAL USE PERMIT GRANTED BY THE FOREST SERVICE ON NOVEMBER 8, 1912. WHEN THE CITY CONSTRUCTED THE PIPE LINE IT ROUGHED OUT A NARROW, UNIMPROVED WORK ROAD TO GAIN ACCESS TO THE HEADWORKS OF THE WATER SYSTEM WITH THE DITCH OF THE ROAD BEING USED AS A BED FOR THE PIPE LINE. IN 1935 THE FOREST SERVICE CONSTRUCTED A LOW STANDARD FOREST SERVICE ROAD ON THE LOCATION OF THE UNIMPROVED WORK ROAD TO PROVIDE ACCESS FOR ADMINISTERING AND PROTECTING NATIONAL FOREST LANDS LYING UPSTREAM IN THE ICICLE RIVER DRAINAGE. IT IS STATED THAT THERE IS NO ALTERNATE ACCESS ROUTE INTO THIS MOUNTAINOUS AREA AND, THE INCREASING USE OF THE NATIONAL FOREST LANDS IN THE AFOREMENTIONED AREA NOW DICTATES THE WIDENING AND IMPROVEMENT OF THE LOW STANDARD ROAD CONSTRUCTED IN 1935. IN ORDER TO DO THIS IT WILL BE NECESSARY TO RELOCATE AND RECONSTRUCT THE CITY'S PIPE LINE AND CHLORINATOR HOUSE, SINCE IT IS NOT FEASIBLE TO CONSTRUCT THE NEW ROAD WITHOUT RELOCATING BOTH THE PIPE LINE AND CHLORINATOR HOUSE.

THE FIRST QUESTION REGARDING THIS MATTER IS, IN PART, AS FOLLOWS:

1. MAY THE FOREST SERVICE, INCLUDE IN ITS ROAD CONSTRUCTION CONTRACT, TO BE PAID FOR FROM FOREST DEVELOPMENT ROAD FUNDS, A REQUIREMENT FOR RELOCATION OF THE CITY-OWNED PIPELINE AND CHLORINATOR HOUSE, INCLUDING ESSENTIAL CLEANING, TESTING, AND STERILIZING MEASURES FOR THE RELOCATED PIPE? * * *

THIS QUESTION WILL BE CONSIDERED ON THE BASIS OF OUR UNDERSTANDING THAT IT CONCERNS RELOCATING AND RECONSTRUCTING ONLY THAT PORTION OF THE PIPE LINE, INCLUDING THE CHLORINATOR HOUSE, THAT IS LOCATED ON NATIONAL FOREST LAND.

THE CITY OF LEAVENWORTH APPARENTLY IS AGREEABLE TO THE RELOCATION OF THE PIPE LINE, BUT IS UNWILLING TO PAY THE COST OF MOVING THE LINE AND HOUSE. THE ESTIMATED COST OF THIS WORK IS $12,000. IT IS THE CITY'S POSITION THAT ANY SUCH RELOCATION IS THE RESPONSIBILITY OF THE FOREST SERVICE INCIDENT TO ITS ROAD CONSTRUCTION.

APPARENTLY THE SPECIAL USE PERMIT INVOLVED HERE WAS ISSUED PURSUANT TO 16 U.S.C. 522, WHICH PROVIDES, IN PART, AS FOLLOWS:

THE SECRETARY OF AGRICULTURE IS AUTHORIZED AND EMPOWERED, UNDER GENERAL REGULATIONS TO BE FIXED BY HIM, TO PERMIT THE USE OF RIGHTS OF WAY THROUGH THE NATIONAL FORESTS FOR * * * PIPES AND PIPE LINES * * * OR OTHER WATER CONDUITS * * * TO PROMOTE * * * THE SUPPLYING OF WATER FOR DOMESTIC, PUBLIC, OR ANY OTHER BENEFICIAL USES * * *. ANY PERMISSION GIVEN BY THE SECRETARY OF AGRICULTURE UNDER THE PROVISIONS OF THIS SECTION MAY BE REVOKED BY HIM OR HIS SUCCESSOR IN HIS DISCRETION, AND SHALL NOT BE HELD TO CONFER ANY RIGHT, OR EASEMENT, OR INTEREST IN, TO, OR OVER ANY NATIONAL FOREST.

SECTION 8 OF THE SPECIAL USE PERMIT INVOLVED HERE PROVIDES:

THIS PERMIT IS NOT TRANSFERABLE (SEC. 3737, U.S. REV. STAT.), AND SHALL TERMINATE UPON BREACH OF ANY CONDITIONS HEREIN, OR AT THE DISCRETION OF THE FORESTER.

WHILE UNDER 16 U.S.C. 522 AND SECTION 8 OF THE SPECIAL USE PERMIT IN QUESTION THE SECRETARY OF AGRICULTURE AND THE FORESTER MAY, AS INDICATED ABOVE, REVOKE OR TERMINATE THE PERMIT AT THEIR DISCRETION, IT APPEARS THAT IT IS THE CURRENT POLICY OF THE FOREST SERVICE, DEPARTMENT OF AGRICULTURE, NOT TO TERMINATE OR REVOKE SUCH PERMITS UNLESS THERE HAS BEEN A VIOLATION OF THE CONDITIONS OF THE PERMIT OR THE LAND IS REQUIRED FOR A HIGHER PUBLIC USE. THE ASSISTANT SECRETARY STATES THAT IN THE INSTANT CASE THERE HAS BEEN NO BREACH AND IT IS UNDESIRABLE TO TERMINATE THE PERMIT BECAUSE THE EXISTING USE IS FOR A PUBLIC PURPOSE AND IS OF A HIGH PRIORITY.

IT CONSISTENTLY HAS BEEN HELD BY THIS OFFICE THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY APPROPRIATIONS FOR THE CONSTRUCTION OF ROADS AND TRAILS COULD NOT BE USED FOR THE PURPOSE OF PAYING THE COST OF REMOVING AND RELOCATING PUBLIC UTILITY LINES ON PUBLIC PROPERTY WHEN THEY INTERFERED WITH THE PARAMOUNT RIGHT OF THE UNITED STATES TO USE THE LANDS. SEE DECISIONS A-44362, DATED DECEMBER 1, 1932; A-38299, DATED SEPTEMBER 8, 1931; AND A-36464, DATED JULY 22, 1931. THE RULE APPLICABLE TO SUCH CASES WAS STATED IN A-38299 AS FOLLOWS:

* * * THE PLACING OF SUCH LINES ON PUBLIC LANDS MUST BE UNDERSTOOD AS SUBJECT TO THE PARAMOUNT NEEDS OF THE UNITED STATES, AND WHEN THEIR REMOVAL BECOMES NECESSARY BECAUSE OF INTERFERENCE THEREWITH THE EXPENSES OF SUCH REMOVAL MAY NOT BE CHARGED TO THE UNITED STATES IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY TO THAT EFFECT.

IN OUR VIEW THE ABOVE-CITED RULE REGARDING THE REMOVAL AND RELOCATION OF PUBLIC UTILITY LINES IS EQUALLY APPLICABLE TO THE RELOCATION OF THE PIPELINE IN THE INSTANT CASE. THEREFORE, IN ANSWER TO THE FIRST QUESTION OF THE ASSISTANT SECRETARY, FOREST DEVELOPMENT ROAD FUNDS MAY NOT BE USED TO PAY FOR THE RELOCATION OF THE CITY-OWNED PIPE LINE AND CHLORINATOR HOUSE LOCATED ON NATIONAL FOREST LAND. ALSO, SUCH FUNDS MAY NOT BE USED TO PAY FOR CLEANING, TESTING, AND STERILIZING OF PIPE RELOCATED ON NATIONAL FOREST LAND.

THE SECOND QUESTION SUBMITTED BY THE ASSISTANT SECRETARY PROVIDES AS FOLLOWS:

2. MAY THE FOREST SERVICE PROVIDE, IN ITS ROAD CONSTRUCTION CONTRACT TO BE PAID FOR FROM FOREST DEVELOPMENT ROAD FUNDS, THAT THE CONTRACTOR MAINTAIN AN UNINTERRUPTED ALTERNATE WATER SUPPLY INTO THE WATER MAINS BELOW THE CONSTRUCTION AREA DURING PERIODS WHEN THE EXISTING SUPPLY IS NECESSARILY DISRUPTED BY THE CONSTRUCTION WORK?

THE LETTER DISCLOSES THAT THE COST OF AN ALTERNATE WATER SUPPLY FOR THE CONSTRUCTION PERIOD WILL BE $2,000 WHICH WOULD BE PRIMARILY PUMPING COSTS. ASSUMING THAT THE ALTERNATE WATER SUPPLY WOULD BE NECESSITATED BY RELOCATION OF THE CITY-OWNED PIPELINE LOCATED ON NATIONAL FOREST LAND, FOREST DEVELOPMENT ROAD FUNDS MAY NOT BE USED TO PAY FOR THE ALTERNATE WATER SUPPLY.