# In the United States Court of Federal Claims

No. 20

- 288C

(Filed: June 21 , 202 1 )

STATE OF OHIO
,
Plaintiff,

v.

UNITED STATES
,

Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Suit for breach of contract; contract based on Water Supply Act of 1958, as amended

, 43 U.S.C. § 390(b); cross

motions for partial summary judgment

Ian F. Gaunt, Assistant Attorney General, Environmental Enforcement Division, State of Ohio, Columbus, Ohio, for plaintiff. With him on the briefs were Dave Yost, Ohio Attorney General, Daniel J. Martin, and Amber Wootton Hertlein, Assistant Attorneys Gen eral, State of Ohio, Columbus, Ohio.

Ioana Cristei, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With her on the briefs were Brian M. Boynton, Acting Assistant Attorne y General, Robert E. Kirschman, Jr., Director, and Deborah A. Bynum, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., as well as Daniel Inkelas, Assistant Counsel, Office of the Chief Counsel, and Lauren R. Horner, Assistant District Counsel, Louisville District, United States Army Corps of Engineers.

OPINION AND ORDER

LETTOW, Senior Judge.

The State of Ohio seeks redress f or the United States Army Corps of Engineers ’ alleged violat ion of a contract relating to flood control and water supply at the Caesar Creek Project ( the

“ Project”) in Southwestern Ohio. The contra ct, executed by Ohio and the Corps in 1970 pursuant to the W ater Supply Act of 1958, Pub. L. No. 85

- 500, Title III, § 301 (codified at 43 U.S.C. § 390b) , stipulated that the parties would share the “annual experienced joint

- use operation and maintenance costs of the Project.” First Am. Compl. Ex. A Art. 5.c. ( 1 ) (th e “Contract”), ECF No. 23

- 2. Ohio alleges

, inter alia , that “[t]he United States has charged

— and continues to charge

— the State of Ohio for costs not authorized by the . . . Contract.” First Am. Compl. ¶ 45 , ECF No. 23

- 1

.2 Pending before the court are the pa rties’ cross

- motions for partial summary judgment. See Pl.’s Mot. for Partial Summ. J. ( “ Pl.’s Mot. ” ), ECF No. 26; Def.’s Resp. & Cross

- Mot. for Partial Summ. J. ( “ Def.’s Cross

- Mot. ” ), ECF No. 32. Following the completion of briefing, see Pl.’s Reply & Resp. (“Pl.’s Reply”), ECF No. 33 ; Def.’s Reply, ECF No. 36
, the court held a hearing on May 21 , 2021. The court concludes that “joint

- use operation and maintenance costs of the P roject,” Contract Art. 5.c. ( 1 )

, are those necessary “to maintain [the Project] as an efficient going concern,” Nampa & Meridian Irrigation Dist. v. Bond , 268 U.S. 50, 53 (19 2 5), i.e
., “to operate [the P roject] effectively ” for water storage, water availability, and flood control, id.

, and “to remedy injurious effects result ing from the [P]roject’s subsequent operation

, ” Casi tas Municipal Water Dist. v. United States , 543 F.3d 1276, 1284 (Fed. Cir. 2008) . Because allegedly extraneous costs are at issue, plaintiff’s motion is GRANTED IN PART and the government’s cross

- motion is DENIED.

BACKGROUND 1

A. The Flood Control Act and the Water Supply Act

T he Flood Control Act of 1938 “[a]uthoriz [ed] the construction of certain public works on rivers . . . for flood control, and for other purposes.” Pub. L. No. 7 5

- 761 , 52 Stat. 1215

. Congress passed t he Act in response to the Ohio River flood of 1937, see Ohio v. United States

, 150 Fed. Cl. 173, 176 (2020), and the Little Miami River in Ohio , of which Caesar Creek is a tributary

, was identified as an appropriate site for a future reservoir in the Ohio River Basin

, s ee id. ; see also H.R. Rep. No. 75

- 2353, at 11 (1938). The Act specifically references the plan for the O hio River Basin as a “general comprehensive plan for flood control and other purposes.” 52 Stat. at 1 217

. Congress further adopted the Water Supply Act of 1958 , and the Act’s 1963 amendments, for a similar purpose

, see Pub. L. No. 85

- 500, § 301(a) (1958) (codified as amended at 43 U.S.C. § 390 b (a)); Pub. L. No. 88

- 140, 77 Stat. 249 , a nd “authorized the U.S. Army Corps of Engineers ‘to impound water for present or anticipated future demand or need for municipal or industrial water’ in its reservoir projects

. ” Ohio

, 150 Fed. Cl. at 176 (quoting 43 U.S.C. § 390b(b)). The Water Supply Ac t, as amended, briefly addre sses operation and maintenance costs, asserting that a state such as Ohio can obtain permanent rights to water storage space so long as the state “continue [s] payment of annual operation and maintenance costs allocated to water su pply.” Pub. L. No 88

- 140, § 3 (codified at 43 U.S.C. § 390e).

B. The Contract

In January of 1970, t he parties established a flood control contract related to the Caesar Creek Reservoir Project in Ohio. Cont ract at 1

. The C ontract was entered pursuant to the Flood Control Act of 1938 and the Water Supply Act of 1958 to manage water supply needs and reduce flooding risks along various rivers, including the Little Miami River in Ohio. See id

. The Corp s

1 The recitations that follow are not finding s of fact but rather are recitals attendant to the pending motions and ref l ect ed matters drawn from the complaint, the parties’ briefs, and the records and documents appended to the complaint and briefs.3 agreed to operate and enhance the Caesar Creek P roject by adding water storage capabilities and supply. See id. Art. 1. d. Under the C ontract, Ohio gained “the right . . . to utilize an undivided 48.7 percent of the storage space in the Projec t between ele vations 800.0 and 846.0 feet above mean sea level as deemed necessary by the State to impound water for municipal and industrial use and to m a ke withdrawals therefrom at any time ,” a storage space “estimated to be 80,400

acre

- feet.” Id. Art. 1

. a.

Ar ticle 5 of the C ontract provided that Ohio agreed to pay the United States a variety of costs, including a portion of the P roject’s operation and maintenance costs. Contract Art. 5. Specifically, the C ontract stated that “[t]he State shall pay 12.70 perc ent of the annual experience d joint

- use operation and maintenance costs of the Project” on an annual basis. Id. Art. 5.c. ( 1 )

. The C ontract did not define what costs could be considered operation and maintenance costs, but it did provide that t he United States’ contracting officer possessed discretion to determine the appropriate amount of operation and maintenance costs. Id. Art. 5.c. ( 3 ) . Ohio could request additional operation and maintenance, but the S tate would be responsible for “the entire cost of such additional expense.” Id.

C. Procedural History

Ohio filed suit in this court in March 2020

. See C ompl

., ECF No. 1 . Among other

c laims, Ohio dispute d numerous “facially improper line items” charged by the Corps as operation and maintenance expen ses. Compl. ¶ 30; see also First Am. Compl. ¶ 30. Ohio specifically challenge d charges related to “birdseed, parking lots, pedestrian bridges, environmental management, water quality testing, travel order s , tree removal, and community outreach.” First A m. Compl. ¶ 30. Ohio anticipated identify ing additional improper charges because “[m]any other expense items lacked sufficient detail to determine whether they relate to operation and maintenance for the flood control and water supply [P] roject.” First A m. Comp l . ¶ 31.

The government subsequently moved to dismiss the complaint

. Def.’s Mot. to Dismiss, ECF No. 9. The court granted the government’s motion in part, dismissing Ohio’s takings claim, but otherwise denied the motion. See Ohio , 150 Fed. C l. 17 6

. Ohio filed its first amended complaint on February 8, 2021. See First Am. Compl .; Order of February 8, 2021, ECF No. 24. The government filed its answer to the amended complaint on February 22, 2021. See ECF No. 25. Four days later, Ohio filed its motion for partial summary judgment, contend ing that it “is entitled to partial summary judgment on the scope of the water supply contract’s definition of ‘joint

- use operation and maintenance costs of the Proje ct’ as a matter of law.” Pl.’s Mot. at 5. The government filed a response and cross

- motion for partial summary judgment, in which it countered that “Ohio is obligated to pay 12.7 percent of the annual joint

- use operation and maintenance expenses that the contracting officer deems necessary to operate and maintain the [P] roject for its authorized purposes.” Def.’s Cross

- Mot. at 12

- 13 . The cross

- motions were fully briefed, see Pl.’s Reply; Def.’s Reply, and the court held a hearing on May 21, 2021. 2

2 The transcript of the hearing was filed on June 1, 2021 and will be cited as “Hr’g Tr. Page Number:Line Number

, ” omitting t he hearing date from the citation.4 STANDARDS FOR DECISION

A. Summary Judgment

S ummary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a) of the Rules of the Court of Fed eral Claims (“RCFC”). A material fact is one that “might affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986) (interpreting Fed. R. Civ. P. 56). 3 A genuine dispute exists when the finder of fact may reasonably reso lve the dispute in favor of either party. Id. at 250.

The movant bears the burden of demonstrating the absence of any genuine disputes of material fact, s ee Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986), and must “cite[] to particular parts of materi als in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials,” RCFC 56(c)(1)(A). The court may consider other materials in th e record even if not cited by the parties. RCFC 56(c)(3). “[T]he inferences to be drawn . . . must be viewed in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986) (quot ing United States v. Diebold, Inc. , 369 U.S. 654, 655 (1962)). If the record taken as a whole “could not lead a rational trier of fact to find for the

non

- moving party, there is no ‘genuine issue for trial’” and summary judgment is appropriate. Id. (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co. , 391 U.S. 253, 289 (1968)).

When both parties have moved for summary judgment, “the court must evaluate each party’s motion on its own merits, taking care in each instance to draw al l reasonable inferences against the party whose motion is under consideration.” Mingus Constructors, Inc. v. United States , 812 F.2d 1387, 1391 (Fed. Cir. 1987) (citation omitted). “The fact that both parties have moved for summary judgment does not mean that the court must grant judgment as a matter of law for one side or the other.” Id . “To the extent there is a genuine issue of material fact, both motions must be denied.” Marriott Int’l Resorts, L.P. v. United States , 586 F.3d 962, 969 (Fed. Cir. 2009) (citation omitted)

.

B. Interpretation of Contracts on Summary Judgment

The meaning of contract terms properly can be evalu ated on summary judgment, provided that the contractual language is not ambiguous. See Lucent Techs

. , Inc

. v. Gateway, Inc. , 543 F.3d 710, 717 (Fed. Cir. 2008) ; Crown Laundry & Dry Cleaners v. United States , 29 Fed. Cl. 506, 515 (1993) (citation omitted) ( “Pure contract interpretation is a question of law which may be resolved on summary judgment.”)

. I n interpreting a contract

, a court begins with the language of the agreement. Jowett, Inc

. v. United States , 234 F.3d 1365, 1368 (Fed. Cir. 2000 ); Record St eel & Constr., Inc. v. United States , 62 Fed. Cl. 508, 513 (2004). If the terms of

3 Because RCFC 56 mirrors Fed. R. Civ. P. 56, the rules should be interpreted in pari
materia

.5 the contract are unambiguous, the court must give effect to the plain meaning and may not look to extrinsic evidence as an interpretative guide. Barron Bancshares, Inc. v. United States , 366 F.3d 1360, 1375 (Fed. Cir. 2004). In interpreting a contract, the court is to read the contract as a whole and endeavor to give a reasonable meaning to all its provisions. Jowett , 234 F.3d at 1368 (citations omitted).

Further, w here a contract fulfills or implements a statutory require ment, the underlying statute must guide the court’s interpretation of the contract. Dalles Irrigation Dist. v. United States , 82 Fed. Cl. 3 46, 355 (2008). In these circumstances, “the express terms of the . . .
contract are illuminated by the authorizing legislation . . . and, to a lesser extent, by other background legislation.” Id. at 3 55

- 56. As the Federal Circuit has explained: “ [W]hen

. . . the contract implements a statutory enactment, it is appropriate to inquire int o the governing statute and its purp ose. ” Columbus Reg ’ l Hosp. v. United States , 990 F. 3d 1330, 1345 (Fed. Cir. 2021) (quoting Roedler v. Department of Energy , 255 F.3d 1347, 1352 (Fed. Cir. 2001) )

.

ANALYSIS

A. Ohio’s Motion for Summary Judgment

Ohio seeks partial summary judgment, requesting that the court adopt a definition of the
contract ual term “joint

- use operation and maintenance costs of the Project .” Pl.’s Mot. at 5. Ohio argues that the C ontract imposes two limitations on the operation and maintenance costs: first, that “[t]he costs charge d to the State must be for operation and maintenance,” and second, that “ the costs charged to the State for operation and maintenance must be for the shared Caesar Creek Project.” Id. Under Ohio’s definition, operation and maintenance costs must be “related to flood control, water storage, and water supply,” id. at 7, and be spent “to operate and keep the [P] roject in working order or fix problems caused by the [P] roject ,” id. at 5. Ohio avers that the plain language of the C ontract control s , a nd that the authorizing statutes and their legislative histories inform its arguments. Id. at 5

- 13. The United States counters tha t , in support of its proposed def inition, Ohio relies on extrinsic evidence . Def.’s Cross

- Mot. at 7

- 11. By using this evidence, the United States asserts that Ohio implicitly concedes that the contract language is ambiguous. Id

. at 7

- 11.

The starting point for this analysis is the contract ual language. The C ontract provides that the Project is “the Caesar Creek Reservoir on Caesar Creek, a tributary of the Little Miami River, ” construction of which “was authorized by the Floo d Control Act” of 1938 and would include “storage for municipal and industrial water supply.” Contract at 1. The P roject is listed as a “multi

- purpose project” with the goals of “flood control,” “water quality control,” and “water supply.” Id. Ex. B (emphasis omitted). Ohio agreed to pay costs in accordance with the provisions of the Water Supply Act of 1958 , as amended. Id. at 1. Among other costs, t he C ontact specified that Ohio “shall pay 12.70 percent of the annual experienced joint

- us e operation and maintenance costs of the Project

. ” Id. at Art. 5.c. ( 1 ) . Furth er, the contracting officer had discretion to determine “ [ t ] he extent of operation and maintenance of the Project ” and would provide records of such costs to Ohio “for inspection an d examination.” Id. at Art. 5.c. ( 3 )

. Ohio would “bear the entire cost” of operation and maintenance expenses that were above those “deemed necessary by the Contracting Officer.” Id.6 The parties’ arguments center around question s of the proper scope of t he Project, the definition of operation and maintenance costs

, an d the definition of joint use. Ohio argues that the plain language of the C ontract, binding precedent, and the associated statutes should guide the court’s analysis. 4 The government avers, however, that the plain language of the C ontract provides substantial discretion to the contracting officer to decide what charges count as operation and maintenance.

The court finds that the contractual language plainly places requirements on what can b e operation and maintenance costs for which Ohio is obligat ed to pay. Operation and maintenance
costs must be “joint

- use” an d they must be “of the P roject.” Contract Art. 5.c. ( 1 )

. While the United States is correct that the contracting officer retains discretion as to the appropriate amount of operation and maintenance costs to charge Ohio, see Def.’s Cross

- Mot. at 12

- 13; Contract Art. 5.c. ( 3 ) , the contracting officer does not have d iscretion to determine the definition of the Project and attendant joint

- use costs. Accordingly, the contracting officer cannot charge Ohio for costs that are not joint use, not for operation and maintenance, or not related to the Caesar Creek Project.

T h e parties focus on the d efinition of “joint use” in delineating the operating and maintenance expenses that can be charged to Ohio under the contract. The government states that joint use means that the costs can have “two or more purposes,” Hr’g Tr. 23:3

- 4, while Ohio implies that joint

- use instead should be understood in the context of the shared P roject at Caesar Creek

, s ee Pl.’s Reply at 4; see also Hr’g Tr. 21:4

- 8 (United States: “[Ohio] also name[s] something that [it] call[s] the ‘shared project ,’ but that’s not actually found anywhere in the contract, and nor does Ohio explain what this mean or if this is something that’s different from ‘joint use,’ which is, in fact, found in the [C] ontract

. ”)

.

The C ontract contrasts “joint

- use” with “specifi c

- use

. ” See, e.g.
, Contract Ex. B, Sheet 5 (line item 23 “Allocated c onstruction costs of joint

- use lands & facilities” lists multiple purposes, such as flood control, water quality and water supply, and recreation, while line item 24 “Construction costs of specific

- use lands & facilities” has a single purpose, recreation)

. 5 In short, j oint

- use costs refer to expenses which s erve multiple purposes, while specific

- use costs

4 The language defining the Project, including the incorporation of the authorizing

statutes , is stated in the contract’s recitals. See Contract at 1. Ohio indica ted that it believes the recitals “comport with [its] analysis of the rest of the contract

. ” Hr’g Tr. 9:24 to 10: 1

. While courts generally “do not interpret recitals as binding contractual obligation s,” Rocky Mountain Helium, LLC v. United States , 145 Fed. Cl. 662, 666 n.6 (2019) (citation omitted), recitals “ may be read in conjunction with the operative portions of a contract in order to ascertain the intention of the parties. ” KMS Fusion, Inc. v. United States , 36 Fed. Cl. 68, 77 (1996), aff’d

, 108 F.3d 1393 (Fed. Cir. 1997)

. Therefore, the court will read the recitals together with the contract language to discern the meaning of the contract ual terms at issue

.

5 At this juncture, the court need not resolve the question of whether the sheets appended to Exhibit B of the Contract are actually part of the Contract itself. For purposes of the cross

motions, the court will take them into account.7 refer to expenses for recreational purposes only. See i d. Looking at the C ontract as a whole, Jowett , 234 F.3d at 1368

, the court determines that the C ontract defines “ joint

- use ” as pertaining to more than one contractually spec ified use and that this definition applies throughout the C ontract.

The court next turns to the core argument

— the definition of operation and maintenance. The C ontract does not provide a direct definition of operation and maintenance costs , other than the s tatements included in Article 5

. See Contract Art 5.c. Both parties rely on Nampa & Meridian Irrigation District v. Bond , 268 U.S. 50 (1925), and Casitas Municipal Water District v. United States , 543 F.3d 1276 (Fed. Cir. 2008), in support of their argum ents. See, e.g.
, Pl.’s Mot. at 6; Def.’s Cross

- Mot. at 12. In Nampa , the Supreme Court of the United States provided a definition for what could be considered an operation and maintenance charge. Nampa , 268 U.S. at 53. Generally, costs are considered “ maintenance and operating expenses” when those “expenditure s [are] made to maintain [the system] as an efficient going concern, and to operate it effectively to the end for which it was designed.” Id. The Federal Circuit, relying upon Nampa
, further stat ed that “costs . . . incurred after the project was completed to remedy injurious effects resulting from the project’s subsequent operation” were properly characterized as operation and maintenance costs. Casitas , 543 F.3d at 1284

. Costs of the initial c onstruction of the P roject, for example, could not be charged as operation and maintenance, but later remedial con struction could be c lassified as such. See id. at 1283

- 84. Accordingly, expenses charged to Ohio as operation and maintenance costs must be (1) “to maintain [the Project] as an efficient going concern,” Nampa , 268 U.S. at 53, (2) “to operate [the P roject] effectively to the end[s] for which it was designed,” id.

, or ( 3) “to remedy injurious effects resulting from the [P]roject’s subsequent operation

, ” Casitas , 543 F.3d at 1284

. The purposes and goals of the P roject a re relevant to this analysis both as to the scope “of the Project” as well as to whether expenses a re, in fact, “operation and maintenance costs

. ” See Contract Art. 5.c. ( 1 )

. The C ontract provides that “construction ” of the Project and “storage” of water “for municipal and industrial water supply,” id. at 1, as well as “flood control,” and “water quality cont rol,” id. Ex. B, a re purposes of the Project. The court’s analysis is further informed by the authorizing statutes referenced by the contract. See Dalles Irrigation , 82 Fed. Cl. at 355 (“[T ] he express terms of the . . . contract are illuminated by the authorizing legislation.”). The parties agree that the underlying legislation is relevant and important to proper resolution of this issue. See Hr’g Tr. 25:4

- 6 (United States: “ [T] he underlying legislation is absolutely important to look at in making this determination.”); id. 11:2

- 5 (Ohio: “Our position is that [the statutes] . . . are helpful guidance in interpreting the contract.”). The Flood Control Act of 1938 authorized construction, such as the Caesar Creek Project, “for flood control, and for other purposes.” Pub. L. No. 25

- 761, 52 Stat. 1215. The declared policy of the Water Supply Act of 1958 was to “develop[] water supplies for domestic, municipal, industrial, and other purposes” and to facilitate cooperation “in connection with construction, maintenance, and operation of Federal navigation, flood control, irrigation, or multiple purpose projects.” 4 3 U.S.C. § 390b(a). The statutory provisions authorizing the parties to e nter into this C ontract , combined with Nampa and Casitas
, indicate that “operation and maintenance costs” should be interpretated as those necessary “to maintain [the Project] as an efficient going concern ” “to operate [the P roject] effectively ” for the P roject’s water storage, water availability, and flood control purposes, or “ to remedy injurious effects resulting from the [P]roject’s subsequent operation

. ” Nampa , 268 U.S. at 53; Casit as , 5438 F.3d at 1284. 6 Expenses that fit within the above def inition can be properly charged a s operation and maintenance expenses.

The United States suggests that the definition of operation and maintenance cannot be determined absent discovery as t o the specific charges Ohio alleges it was wrongly charged as
ope ration and maintenance. Def.’s Cross

- Mot

. at 12 (“Additional discovery is needed to determine both the costs at issue and any facts rendering those costs not properly chargeable under the contract.”) The government argues that, as the Supreme Court stated in Na mpa , “ [t]he same kind of work under one set of facts may be chargeable to construction and under a different set of facts may be chargeable to maintenance and operation.” Nampa , 268 U.S. at 54 (citation omitted) ; see also Nampa & Meridian Irrigation Dist. v. Bond , 288 F. 541, 541 (9th Cir. 1923), (“[T]he term ‘operating expense’ is a broad and comprehensive one, and its meaning in a given case depends on the nature and amount of the expenditure, and all the surrounding circumstances.”)

, aff’d , 268 U.S. 50

. Therefore, the United St ates avers that the court cannot establish a definition for this contract term absent knowledge of the specific costs alleged to be inappropriately charged. Def.’s Cross

- Mot. at 12

. The court finds, however, tha t adopting a definition for joint

- use opera tion and maintenance costs does not run afoul of Nampa

. Contrary to the government’ s suggestion that granting summary judgment for Ohio requires this court to decide “what costs this contract language applies to,” Def.’s Reply at 2, p roviding a working d efinition of the contract ual term at issue here does not determine whether the specific charges Ohio challenges are properly chargeable as operation and maintenance. T hose determinations require a factual record c urrently being developed through discovery and , as such, would be inappropriate for the court to evaluate on summary judgment. See And erson , 477 U.S. at 248 ( “ [T]he requirement is t hat there be n o genuine dispute of material fact. ” ) (emphasis omitted).

The United States further contends that by granting summary judgment , the court is issuing an advisory opinion because it does n ot resolve “any claim or part of a claim.” Def.’s Cross

- Mot. at 11. The United States is correct that Rule 56 of the Rules of the Court of Federal Claims provides that a party moving for summary judgment must “identify[] each claim or defense

— or the part of each claim or defense

— on which summary judgment is sought.” RCFC 56(a) ; see Def.’s Cross

- Mot. at 11

. Nonetheless, a grant of partial summary judgment to Ohio would not offend Rule 56. Ohio’s su it seeks to establish that the United States is incorrectly overcharging it for joint

- use operation and maintenance costs under the C ontract, see First. Am. Compl. ¶¶ 23

- 36, 43

- 45, and Ohio’s motion for summary judgment clarifies part of this claim by establishing a d efinition for this contract ual term, see generally Pl.’s Mot. The government’s argument as to Rule 56 , therefore, lacks merit.

6 The C ontract provi des that the costs must be for operation and maintenance of the
P roject. T hus, operation and maintenance costs can apply to “only . . . expenses necessary to operate and maintain the flood control, water supply, and water storage [P]roject

. ” Pl.’s Mot. at 7

.9 B. United States ’ Motion for Summary Judgment

The government seeks partial summary judgment, requesting that the court find “that Ohio is obligat ed to pay 12.7 percent of the annual joint

- use operation and maintenance expenses that the contracting officer deems necessary to operate and maintain the [ P ] roject for its authorized
purposes. ” Def

. ’ s Cross

- Mot

. at 12

- 13. Ohio agrees with the United Stat es’ interpretation in so far as it correctly quotes the contractual language. Pl.’s Reply at 2 (“To the extent that the Government quotes the language of the [C] ontract, Ohio agrees that the [C] ontract says what the [C] ontract says.”) Ohio suggests that t he United States’ request comports with a grant of summary judgment for Ohio because “the Government does not identify any interpretation other than the one Ohio asks this Court to confirm.” Id. The court agrees. As the court previously stated, see supr a , the C ontract does not grant the contracting officer discretion to define operation and maintenance or joint use as contractual term s , but rather he or she can determine the appropriate amount of expenses necessary to operate and maintain the P roject and then charge Ohio accordingly. The United States’ request, therefore, goes beyond the plain language of the C ontract.

CONCLUSION

Under the C ontract, joint

- use operation and maintenance costs are those necessary “to maintain [the Project] as an efficient going concern,” Nampa , 268 U.S. at 53, “to operate [the P roject] effectively ” for water storage, water availability, and flood control, id.

, or “to remedy injurious effects resulting from the [P]roject’s subsequent operation ,” Casitas , 543 F.3d at 1284,
t ha t pertain to more than one purpose of the Project. Therefore, plaintiff’s motion is GRANTED IN PART, and the government’s cross

- motion is DENIED.

I t is so ORDERED

.

s/ Charles F. Lettow Charles F. Lettow Senior Judge