B-165037, SEPTEMBER 18, 1968, 48 COMP. GEN. 132

B-165037, SEPTEMBER 18, 1968, 48 COMP. GEN. 132

STATES - MUNICIPALITIES - FLOOD PREVENTION PROJECTS - DAMAGE LIABILITY INCIDENT TO THE TAKING OF AN EASEMENT FOR THE ATTACHMENT OF DIKES TO A RAILROAD EMBANKMENT IN CONNECTION WITH A FLOOD PREVENTION PROJECT, WHICH NECESSITATES THE ALTERATION OF A RAILROAD BRIDGE AND ITS APPROACHES, ALTHOUGH IT WOULD BE PREFERABLE TO AMEND THE PROJECT AGREEMENT BETWEEN THE FEDERAL GOVERNMENT AND THE LOCAL FLOOD CONTROL DISTRICT ENTERED INTO UNDER THE AUTHORITY OF THE WATERSHED PROTECTION AND FLOOD PREVENTION ACT, WHICH PRECLUDES THE FEDERAL GOVERNMENT FROM ASSUMING THE COST OF LAND, EASEMENTS, AND RIGHTS-OF-WAY, AND TO HAVE THE DISTRICT IN TURN ENTER INTO A CONCOMITANT AGREEMENT WITH THE RAILROAD COMPANY FOR THE ALTERATION OF THE BRIDGE AND ITS APPROACHES AND A SECOND AGREEMENT TO ACQUIRE THE EASEMENT OF ATTACHMENT, THERE IS NO OBJECTION TO PAYING DAMAGES, WHETHER OR NOT THE RAILROAD COMPANY AGREES TO MAKE THE NEEDED ALTERATIONS, IN ORDER TO SECURE TITLE TO THE EASEMENT AND PROTECT THE GOVERNMENT'S INVESTMENT.

TO THE SECRETARY OF AGRICULTURE, SEPTEMBER 18, 1968:

THIS IS IN REPLY TO YOUR LETTER OF AUGUST 8, 1968, IN WHICH YOU REQUESTED A DECISION AS TO THE LEGAL PROPRIETY OF EXPENDITURES UNDER THREE ALTERNATIVES IN CONNECTION WITH A FLOOD PROTECTION PROJECT WHICH IS BEING CARRIED OUT BY THE DEPARTMENT OF AGRICULTURE AND THE MARSHLAND FLOOD CONTROL DISTRICT IN THE STATE OF WASHINGTON, UNDER THE WATERSHED PROTECTION AND FLOOD PREVENTION ACT, AS AMENDED, 16 U.S.C. 1001 NOTE.

IT APPEARS FROM YOUR LETTER THAT UNDER AUTHORITY GRANTED IN THE WATERSHED PROTECTION AND FLOOD PREVENTION ACT, AS AMENDED, PUBLIC LAW 566, 83RD CONGRESS, APPROVED AUGUST 4, 1954, 16 U.S.C. 1001-1009, A FLOOD PREVENTION WORK PLAN WAS AGREED TO BY THE SECRETARY OF AGRICULTURE AND THE MARSHLAND FLOOD CONTROL DISTRICT OF SNOHOMISH COUNTY, A MUNICIPAL CORPORATION, FOR THE MARSHLAND WATERSHED IN SNOHOMISH COUNTY, WASHINGTON. THE WATERSHED LIES ALONG THE WESTERLY SIDE OF THE SNOHOMISH RIVER FROM ABOUT 4 MILES SOUTH TO ABOUT 5 MILES NORTHWEST OF THE TOWN OF SNOHOMISH. YOUR LETTER STATES THAT THE PURPOSE OF THE PLAN WAS TO PROTECT THE MARSHLAND WATERSHED FROM DESTRUCTIVE FLOODING. THE PLAN, AMONG OTHER THINGS, CALLS FOR CONSTRUCTION OF A DIKE GENERALLY PARALLELING THE SNOHOMISH RIVER. THE DIKE WAS DESIGNED TO TIE INTO BOTH SIDES OF THE APPROACH EMBANKMENT BELONGING TO THE GREAT NORTHERN RAILWAY COMPANY NEAR THE EASTERLY END OF ITS BRIDGE NO. 1775 WHERE THE TRANSCONTINENTAL MAIN LINE CROSSES THE RIVER AT SNOHOMISH, WASHINGTON.

THE SECRETARY HAD ALSO AGREED TO A SIMILAR FLOOD PREVENTION WORK PLAN WITH THE FRENCH SLOUGH FLOOD CONTROL DISTRICT ON THE OTHER SIDE OF THE RIVER FOR THE PROTECTION OF THE FRENCH SLOUGH WATERSHED. THE DIKE CONSTRUCTED UNDER THAT PLAN TIED INTO THE GREAT NORTHERN RAILWAY EMBANKMENT NEAR THE EASTERLY END OF THE BRIDGE.

WHILE IT WAS CONTEMPLATED THAT THE TWO PROJECTS WOULD PROGRESS SIMULTANEOUSLY, NEITHER PLAN INCLUDED ANY FUNDS FOR ALTERATION OF THE RAILROAD BRIDGE AND ITS APPROACHES. YOUR LETTER STATES THAT AT THE TIME OF THE DEVELOPMENT OF THE RESPECTIVE PLANS THE BRIDGE WAS NOT THOUGHT TO HAVE BEEN INVOLVED IN EITHER OF THE TWO PROJECTS AND WAS NOT WITHIN THE WATERSHED AREA OF EITHER PROJECT. THE SOIL CONSERVATION SERVICE WAS WORKING WITH TWO ENTIRELY SEPARATE AND INDEPENDENT LOCAL ORGANIZATIONS AND WAS UNABLE COMPLETELY TO COORDINATE THE TWO PROJECTS.

THE FRENCH SLOUGH DIKES HAVE BEEN COMPLETED. THE GREAT NORTHERN RAILWAY COMPANY GRANTED AN EASEMENT FOR THE TIE-IN BY THE FRENCH SLOUGH FLOOD CONTROL DISTRICT FOR AN APPARENTLY NEGLIGIBLE CONSIDERATION. HOWEVER, WHILE A SUBSTANTIAL PORTION OF THE MARSHLAND DIKE HAS BEEN COMPLETED, THE UNCOMPLETED PORTION OF THE DIKE INVOLVES THE TIE-IN TO THE RAILROAD EMBANKMENT. WHEN CONSTRUCTION WAS COMMENCED ON THE MARSHLAND DIKE, NO PROBLEM WAS CONTEMPLATED WITH THE TIE-IN BECAUSE THE GREAT NORTHERN RAILWAY COMPANY, WITHOUT ANY OBJECTION, HAD GRANTED A SIMILAR EASEMENT ON THE OPPOSITE SIDE OF THE RIVER TO THE FRENCH SLOUGH FLOOD CONTROL DISTRICT. BUT AT THE TIME THE MARSHLAND FLOOD DISTRICT REQUESTED AN EASEMENT FOR THE TIE-IN TO THE RAILROAD EMBANKMENT, THE GREAT NORTHERN RAILWAY COMPANY REFUSED TO GRANT SUCH AN EASEMENT EXCEPT UPON PAYMENT OF THE COST OF RAISING THE BRIDGE AND APPROACHES. THIS WAS CLAIMED TO BE NECESSARY BECAUSE OF POSSIBLE DAMAGE TO THE BRIDGE FROM FLOATING LOGS STRIKING THE LOWER CHORDS OF THE BRIDGE AT THE HIGHEST FLOOD STAGE. WATERS RETAINED BY THE DIKES WOULD BE OVERTOPPED AT HIGHEST FLOOD STAGE WOULD TOUCH THE LOWER CHORDS OF THE BRIDGE.

UNDER THE PROVISIONS OF SUBSECTION 4 (1) OF PUBLIC LAW 566, 83RD CONGRESS, AS AMENDED, 16 U.S.C. 1004 (1), THE SECRETARY, EXCEPT IN CASES INVOLVING PUBLIC FISH AND WILDLIFE OR RECREATIONAL DEVELOPMENT, MUST REQUIRE, AS A CONDITION TO PROVIDING FEDERAL ASSISTANCE FOR THE INSTALLATION OF WORKS OF IMPROVEMENT, THAT THE SPONSORING LOCAL ORGANIZATION, WITHOUT COST TO THE FEDERAL GOVERNMENT, ACQUIRE, OR, WITH RESPECT TO INTERESTS IN LAND TO BE ACQUIRED BY CONDEMNATION, PROVIDE ASSURANCES SATISFACTORY TO THE SECRETARY THAT IT WILL ACQUIRE SUCH LAND, EASEMENTS, OR RIGHT-OF-WAY AS WILL BE NEEDED IN CONNECTION WITH WORKS OF IMPROVEMENT INSTALLED WITH FEDERAL ASSISTANCE.

BECAUSE OF THIS REQUIREMENT THE MARSHLAND FLOOD CONTROL DISTRICT BROUGHT AN ACTION OF CONDEMNATION FOR THE NEEDED LAND RIGHTS AGAINST THE GREAT NORTHERN RAILWAY COMPANY IN THE SUPERIOR COURT, SNOHOMISH COUNTY. THE GREAT NORTHERN RAILWAY COMPANY CLAIMED COMPENSATION FOR THE VALUE OF THE EASEMENT AND ALSO ASSERTED A RIGHT TO ANTICIPATE DAMAGES TO ITS BRIDGE AND ABUTMENTS FROM INCREASED VOLUME AND VELOCITY OF WATER, AND FLOATING LOGS BECAUSE OF CONSTRUCTION OF THE DIKES. THE SUPERIOR COURT ISSUED AN ORDER OF PUBLIC USE AND NECESSITY GRANTING THE DISTRICT THE RIGHT TO ANCHOR ITS DIKES TO THE RAILROAD EMBANKMENT, SUBJECT TO PAYMENT OF COMPENSATION THEREFOR. IT ALSO HELD, UNDER THE DOCTRINE OF OUTLAW SURFACE WATERS IN THE STATE OF WASHINGTON, THAT THE DISTRICT WAS NOT LIABLE TO THE RAILROAD FOR DAMAGES AND COSTS ARISING FROM THE NECESSITY OF KEEPING ITS RAILROAD BRIDGE AND ITS APPROACHES OPERATIONAL.

UPON APPEAL, THE SUPREME COURT OF THE STATE OF WASHINGTON IN THE CASE OF MARSHLAND FLOOD CONTROL DISTRICT OF SNOHOMISH COUNTY V GREAT NORTHERN RAILWAY COMPANY, 428 P.2D 531, DECIDED JUNE 1, 1967, REHEARING DENIED AUGUST 14, 1967, AFFIRMED THAT PORTION OF THE ORDER OF PUBLIC USE AND NECESSITY WHICH GRANTED THE DISTRICT THE RIGHT TO ANCHOR ITS DIKES TO THE RAILROAD EMBANKMENT UPON ITS RIGHT-OF-WAY. HOWEVER THAT PORTION OF THE ORDER WHICH HELD THAT THE DISTRICT WAS NOT LIABLE TO THE RAILROAD FOR ANY DAMAGES TO RAILROAD BRIDGE NO. 1775 AND ITS APPROACHES BY VIRTUE OF THE CONSTRUCTION OF THE DIKES WAS REVERSED. THE CAUSE WAS REMANDED TO THE TRIAL COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THE OPINION OF THE WASHINGTON SUPREME COURT.

YOUR LETTER STATES THAT BECAUSE THE MARSHLAND FLOOD CONTROL DISTRICT IS UNABLE TO PAY A CONDEMNATION AWARD OF ANY SUBSTANTIAL AMOUNT, IT HAS TAKEN NO STEPS IN THE SUPERIOR COURT TO TRY THE QUESTION OF DAMAGES. THEREFORE IT WILL NOT PROCEED UNLESS IT HAS ASSURANCE THAT THE FUNDS NECESSARY TO PAY THE DAMAGES AWARDED BY THE COURT, INCLUDING POSSIBLE ALTERATIONS OF THE RAILROAD BRIDGE AND ITS APPROACHES WILL BE FURNISHED BY THE SECRETARY OF AGRICULTURE. THE GREAT NORTHERN RAILWAY COMPANY HAS ESTIMATED DAMAGES OF SOME $400,000 FOR NECESSARY RAISING AND OTHERWISE PROTECTING THE RAILROAD BRIDGE AND ITS APPROACHES. IT IS ALSO STATED THAT THE NEARBY BRIDGE OF THE NORTHERN PACIFIC RAILWAY, UNDER WHICH THE TRACKS OF THE GREAT NORTHERN RAILWAY PASS, MAY ALSO HAVE TO BE RAISED AT AN ESTIMATED COST OF $77,000.

YOUR LETTER ALSO STATES THAT THE UNCOMPLETED MARSHLAND DIKES WITHOUT THE TIE-IN TO THE RAILROAD EMBANKMENT FURNISHES LITTLE PROTECTION TO THE MARSHLAND WATERSHED. ALSO, WITHOUT COMPLETION OF THE DIKES, THE GOVERNMENT'S INVESTMENT IN THE UNCOMPLETED PORTION, AS WELL AS IN OTHER WORKS OF IMPROVEMENT AND MEASURES IN THE PROJECT, WILL BE JEOPARDIZED AND MAY BE LOST.

MR. W. J. BRAY OF YOUR GENERAL COUNSEL'S OFFICE HAS INFORMED US THAT THE ESTIMATED FEDERAL CONTRIBUTION TO THE MARSHLAND PROJECT IS $2,968,212 OUT OF A TOTAL ESTIMATED COST OF $3,825,764. HE HAS ALSO FURNISHED INFORMATION WHICH SHOWS THAT THE PLAN FOR THE MARSHLAND PROJECT AS WELL AS THE PLAN FOR THE FRENCH SLOUGH (FRENCH CREEK) PROJECT WERE SUBMITTED TO CONGRESS FOR APPROVAL IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 2 AND 5 OF PUBLIC LAW 566, 83D CONGRESS, AS AMENDED, 16 U.S.C. 1002, 1005. THEY WERE APPROVED BY THE SENATE COMMITTEE ON AGRICULTURE AND FORESTRY AND BY THE HOUSE COMMITTEE ON AGRICULTURE IN 1959.

AS STATED IN YOUR LETTER, WITH CERTAIN EXCEPTIONS NOT HERE MENTIONED, THERE IS NO AUTHORITY IN PUBLIC LAW 566, AS AMENDED, FOR THE SECRETARY OF AGRICULTURE TO BEAR THE COST OF LAND, EASEMENTS, OR RIGHTS-OF-WAY. HOWEVER, YOU NOTE THAT SUBSECTION 4 (2) (B) OF THE ACT, 16 U.S.C. 1004 (2) (B), PROVIDES IN PART "THAT ANY PART OF THE CONSTRUCTION COST (INCLUDING ENGINEERING COSTS) APPLICABLE TO FLOOD PREVENTION AND FEATURES RELATING THERETO SHALL BE BORNE BY THE FEDERAL GOVERNMENT AND PAID FOR OUT OF FUNDS APPROPRIATED FOR THE PURPOSES OF THIS CHAPTER * * *.' AS YOU STATE, THIS REQUIREMENT WAS INCLUDED IN PUBLIC LAW 566, 83RD CONGRESS, PURSUANT TO THE LONG-ESTABLISHED POLICY THAT IN FLOOD PROTECTION PROJECTS THE COSTS OF FLOOD CONTROL AND FLOOD PREVENTION SHOULD BE ASSUMED AS A FEDERAL RESPONSIBILITY.

YOUR LETTER STATES THAT IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION 4 (2) (B) OF PUBLIC LAW 566 THE SECRETARY OF AGRICULTURE IN WORKS OF IMPROVEMENT INVOLVING DEEPENING OF CHANNELS HAS ALWAYS BORNE THE COSTS OF UNDERPINNING OF BRIDGE PIERS AND ABUTMENTS, ALTERATION AND STRENGTHENING OF PIERS, AND CERTAIN OTHER ALTERATION COSTS SUCH AS THOSE INVOLVING RECONSTRUCTION OF ABUTMENTS WHERE THESE MAY BECOME A PART OF A FLOOD WALL. LAND RIGHTS NEEDED FOR CHANNEL DEEPENING OR WIDENING, ETC., MUST BE ACQUIRED FROM THE LANDOWNERS BY THE LOCAL ORGANIZATION WITHOUT COST TO THE FEDERAL GOVERNMENT. TO ALTER A BRIDGE, HOWEVER, REQUIRES ONLY A CONTRACTUAL ARRANGEMENT WITH THE OWNER FOR THE CONSTRUCTION OF THE NEEDED CHANGES. NO INTEREST IN THE BRIDGE IS NEEDED.

YOU SUGGEST THAT IT IS ENTIRELY LOGICAL TO VIEW THE FRENCH SLOUGH DIKES AND THE MARSHLAND DIKES TOGETHER AS HAVING THE SAME EFFECT AS THE INSTALLATION OF A DEEPER AND WIDER FLOOD CHANNEL ACCOMPLISHED BY RAISING UP THE BANKS.

YOUR LETTER STATES THAT IT HAS BEEN CONSIDERED THAT THE SECRETARY IS AUTHORIZED TO BEAR THE COST OF ALTERATION OF APPROACHES REQUIRED IN CONNECTION WITH RAILROAD BRIDGE ALTERATIONS WHICH AUTHORITY STEMS FROM THE NATIONAL POLICY ADOPTED BY CONGRESS IN SECTION 3 OF THE FLOOD CONTROL ACT OF 1946, PUBLIC LAW 526, 79TH CONGRESS, APPROVED JULY 24, 1946, 33 U.S.C. 701P, WHICH ROVIDES:

SEC. 3. THAT AFTER JULY 24, 1946, FOR AUTHORIZED FLOOD PROTECTION PROJECTS WHICH INCLUDE ALTERATIONS OF RAILROAD BRIDGES THE CHIEF OF ENGINEERS IS AUTHORIZED TO INCLUDE AT FEDERAL EXPENSE THE NECESSARY ALTERATION OF RAILROAD BRIDGES AND APPROACHES IN CONNECTION THEREWITH.

ALSO IN SUPPORT OF THIS AUTHORITY OF THE SECRETARY WITH RESPECT TO BRIDGES YOUR LETTER REVIEWS THE LEGISLATIVE HISTORY OF THE FLOOD CONTROL ACT OF 1946 INCLUDING THAT PART OF H.REPT. NO. 2165, 79TH CONG., 2D SESS., DATED MAY 29, 1946, REFERRING TO SECTION 3 ABOVE WHICH STATES: STATES:

* * * AS THE COST OF RAILROAD BRIDGE CHANGES AND APPROACHES THERETO ARE USUALLY BEYOND THE ABILITY OF LEVEE DISTRICTS AND LOCAL COMMUNITIES TO BEAR, AND SINCE THE BENEFITS FROM MAINTAINING THE RAILROAD TRANSPORTATION NETWORK ACCRUE TO THE COUNTRY AS A WHOLE, IT IS CONSIDERED FAIR AND REASONABLE TO INCLUDE THE EXPENSE OF ALTERING THE RAILROAD BRIDGES AND APPROACHES AS A FEDERAL COST. * * *

YOUR LETTER ALSO REFERS TO SUBSEQUENT FLOOD CONTROL ACTS, AND AS FURTHER EVIDENCE OF NATIONAL POLICY OF FEDERAL PARTICIPATION IN BRIDGE ALTERATIONS YOU REFER TO THE ACT OF JUNE 21, 1940, 54 STAT. 497, AS AMENDED, 33 U.S.C. 511-524 WHICH AUTHORIZES THE SECRETARY OF THE ARMY TO SHARE WITH BRIDGE OWNERS THE COST OF ALTERATIONS AND RELOCATIONS.

THE AUTHORITY OF THE SECRETARY OF AGRICULTURE TO CARRY OUT FLOOD PREVENTION ACTIVITIES UNDER THE FLOOD CONTROL ACT OF 1936, APPROVED JUNE 22, 1936, 49 STAT. 1570, AS AMENDED, WITH CERTAIN EXCEPTIONS, WAS REPEALED BY SECTION 7 OF PUBLIC LAW 566, 83RD CONGRESS, 33 U.S.C. 701B. HOWEVER, YOU NOTE THAT PROJECTS CONTEMPLATED BY PUBLIC LAW 566 INCLUDE FLOOD PREVENTION ACTIVITIES SIMILAR TO THOSE THAT HAD BEEN CARRIED OUT BY THE DEPARTMENT OF AGRICULTURE UNDER THE FLOOD CONTROL ACTS. YOU STATE THAT IT IS ONLY REASONABLE TO ASSUME THAT WHEN CONGRESS IN PUBLIC LAW 566 PLACED ESSENTIALLY THE SAME REQUIREMENT FOR LOCAL COOPERATION WHICH PREVIOUSLY WAS CONTAINED IN THE FLOOD CONTROL ACTS, IT INTENDED TO REFLECT THE SAME NATIONAL POLICY AND CONTEMPLATED THAT THE SAME MEANING BE GIVEN TO SUCH REQUIREMENT THAT HAD BEEN GIVEN FOR MANY YEARS UNDER THE FLOOD CONTROL ACTS. BECAUSE YOU HAVE ALWAYS TAKEN THE POSITION THAT THE AUTHORITY WAS INTENDED TO BE COMPARABLE, YOU ARE OF THE OPINION THAT THE SECRETARY OF AGRICULTURE IS AUTHORIZED TO INCLUDE THE ALTERATION OF APPROACHES IN CONNECTION WITH ALTERATION OF BRIDGES AT FEDERAL EXPENSE.

AS YOU STATE, THE SUPREME COURT OF THE STATE OF WASHINGTON HAS CLEARLY INDICATED THAT DAMAGES TO THE BRIDGE ARE INCIDENTS OF THE CONSTRUCTION OF THE MARSHLAND DIKES. BECAUSE OF THE MANNER IN WHICH THE CASE HAS ARISEN THE DAMAGES WILL BE ASSESSED UNDER THE WASHINGTON STATE CONSTITUTION AS DAMAGES RESULTING FROM THE TAKING OF PROPERTY. YOU SUBMIT THAT WE MUST GO BEYOND MERE FORM AND CONSIDER THAT FACTUALLY IT IS THE RETENTION OF FLOOD WATERS BY THE DIKES AND NOT THE TAKING OF THE EASEMENT UPON THE RAILROAD'S RIGHT-OF-WAY WHICH WILL CAUSE THE DAMAGE TO THE BRIDGE. SINCE THE MARSHLAND AND FRENCH SLOUGH DIKES ARE WORKS OF IMPROVEMENT FOR FLOOD PREVENTION, IT APPEARS TO YOU THAT ANY ALTERATION OF THE RAILROAD BRIDGE REQUIRED THEREBY WOULD, AS IN THE CASE OF A CHANNEL IMPROVEMENT, BE A FEATURE OF FLOOD PREVENTION AND THAT PAYMENT OF CONSTRUCTION COSTS IN CONNECTION THEREWITH WOULD BE AN OBLIGATION OF THE SECRETARY. IN VIEW OF THE FACTS AND CONCLUSIONS AS SET OUT ABOVE YOU REQUEST DECISION AS TO THE LEGAL PROPERTY OF EXPENDITURES BY THE SECRETARY OF AGRICULTURE UNDER THE FOLLOWING ALTERNATIVES: 1. PAYMENT OF DAMAGES RESULTING FROM THE TAKING BY THE MARSHLAND FLOOD CONTROL DISTRICT OF THE EASEMENT FOR ATTACHMENT OF DIKES TO THE RAILROAD EMBANKMENT. WHILE THESE DAMAGES COULD BE RELATED TO SPECIFIED NEEDED ALTERATIONS OF THE BRIDGE AND ITS APPROACHES, THERE WOULD BE NO REQUIREMENT IN THE DECREE OR OTHERWISE THAT GREAT NORTHERN RAILWAY COMPANY MAKE ANY ALTERATION. 2. PAYMENT OF DAMAGES RESULTING FROM THE TAKING BY MARSHLAND FLOOD CONTROL DISTRICT OF THE EASEMENT FOR ATTACHMENTS OF THE DIKES TO THE RAILROAD EMBANKMENT, ACCOMPANIED BY AN AGREEMENT WITH THE GREAT NORTHERN RAILWAY COMPANY THAT THE COMPANY WOULD, WITHIN A REASONABLE TIME, MAKE THE SPECIFIED ALTERATIONS OF THE BRIDGE AND ITS APPROACHES FOR WHICH THE ASSESSMENT OF DAMAGES WAS MADE. 3. UNDER AN AMENDED PROJECT AGREEMENT BETWEEN THE SECRETARY AND THE DISTRICT, WITH A CONCOMITANT AGREEMENT BETWEEN THE DISTRICT AND THE RAILROAD COMPANY TO CARRY OUT ALTERATIONS OF THE BRIDGE AND ITS APPROACHES, AND PAYMENT OF THE ACTUAL CONSTRUCTION COSTS THEREOF, AS CONSTRUCTION IS ACCOMPLISHED, IN THE USUAL MANNER. THE DISTRICT WOULD THEN ACQUIRE THE EASEMENT OF ATTACHMENT, UNRELATED TO THE BRIDGE ALTERATION, IN ANOTHER ARRANGEMENT WITH THE RAILROAD COMPANY.

FOR THE REASONS GIVEN IN YOUR LETTER AS RECITED ABOVE WE CONCUR GENERALLY IN YOUR CONCLUSIONS AS TO THE AUTHORITY OF THE SECRETARY OF AGRICULTURE TO INCLUDE THE EXPENSE OF ALTERING THE RAILROAD BRIDGE AND ITS APPROACHES AS A FEDERAL COST. IN THIS PARTICULAR CASE, THE COSTS OF ALTERING THE BRIDGE AND ITS APPROACHES WHICH ARE TO BE BORNE BY THE FEDERAL GOVERNMENT AND PAID FOR BY THE SECRETARY OF AGRICULTURE IN ACCORDANCE WITH THE PROVISIONS OF SUBSECTION 4 (2) (B) OF PUBLIC LAW 566, 83RD CONGRESS, AS AMENDED, CLEARLY ARE SEPARABLE FROM THE COSTS OF ACQUIRING THE EASEMENT WHICH MUST BE ACQUIRED BY THE LOCAL ORGANIZATION WITHOUT COST TO THE FEDERAL GOVERNMENT IN ACCORDANCE WITH THE PROVISIONS OF SUBSECTION 4 (1) OF THAT ACT. THIS SEPARABILITY IS SHOWN BY THE ACTION OF THE SUPREME COURT OF THE STATE OF WASHINGTON IN SENDING THE CASE BACK TO THE SUPERIOR COURT OF SNOHOMISH COUNTY PRIMARILY FOR THE PURPOSE OF ASCERTAINING THE DAMAGES TO THE BRIDGE AND ITS APPROACHES.

WE AGREE THAT THE ACTUAL COSTS OF ALTERATIONS OF THE BRIDGE AND ITS APPROACHES REQUIRED BY THE FLOOD PREVENTION PROJECT ARE NECESSARY COSTS OF THE PROJECT. SUCH ALTERATIONS COULD HAVE BEEN INCLUDED IN THE ORIGINAL PLAN. WE THEREFORE HAVE NO OBJECTION TO ALTERNATIVE (3).

WE HAVE SOME QUESTION AS TO THE AUTHORITY TO PAY DAMAGES IN LIEU OF MAKING ALTERATIONS TO THE BRIDGE AND APPROACHES EVEN IF POSSIBLE SAVINGS IN ENGINEERING AND ADMINISTRATIVE COSTS WOULD BE EFFECTED AND NOTWITHSTANDING THAT THE RAILROAD COMPANY AGREES TO MAKE THE ALTERATIONS WITHIN A REASONABLE PERIOD OF TIME AS PROPOSED IN ALTERNATIVE (2). HAVE CONSIDERABLY MORE DOUBT IN THE ABSENCE OF SUCH AN AGREEMENT TO MAKE THE ALTERATIONS. IT APPEARS, HOWEVER, IN VIEW OF THE PRESENT STATUS OF THE CONDEMNATION PROCEEDINGS, THAT ALTERNATIVES (1) OR (2) MAY HAVE TO BE USED IN ORDER TO GET TITLE TO THE EASEMENT AND TO AVOID A LOSS OF A SUBSTANTIAL PORTION OF THE GOVERNMENT'S INVESTMENT IN THE PROJECT. VIEW THEREOF, WE WILL NOT OBJECT TO THE USE OF ALTERNATIVES (1) OR (2) IN THIS PARTICULAR CASE IF DETERMINED BY YOU TO BE IN THE INTEREST OF THE GOVERNMENT.

WE ASSUME THAT SIMILAR ALTERATIONS IN THE FUTURE WILL BE INCLUDED IN THE ORIGINAL PLAN AND THAT ALTERNATIVES (1) OR (2) WILL NOT BE USED IN THE ABSENCE OF CLARIFYING LEGISLATION.