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AGLO 1970 No. 144 - November 12, 1970
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Slade Gorton | 1969-1980 | Attorney General of Washington
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                                                               November 12, 1970
Honorable Myron H. Freyd
Prosecuting Attorney
Kitsap County
823 Bay Street
Port Orchard, Washington 98366
                                                                                                             Cite as:  AGLO 1970 No. 144
Attention:  !ttMr. Bruce D. Brunton
            Deputy Prosecuting Attorney
Dear Sir:
            This is written in response to your recent letter requesting our opinion as to the authority of a county to construct, maintain and operate a sewerage system within the boundaries of a water district.
            It is our understanding from your letter that the particular water district in question is currently operating a water distribution system; however, it is not presently operating any sewerage system, and has indicated its intention, by a formal resolution, not to do so. Instead, the board of commissioners of the subject water district has sought the active participation by Kitsap county to develop and operate a sewerage system within the district's boundaries.
            Basic authority for a county to construct, maintain and operate a sewerage system was granted by the provisions of chapter 72, Laws of 1967 (chapter 36.94 RCW).  See, in particular, subsection 2 thereof (RCW 36.94.020), which reads as follows:
            "The construction, operation and maintenance of a system of sewerage and/or water is a county purpose.  Subject to the provisions of this chapter, every county has the power, individually or in conjunction with another county or counties to adopt, provide for, accept, establish, condemn, purchase, construct, add to and maintain a system or systems  [[Orig. Op. Page 2]] of sanitary and storm sewers, including outfalls, interceptors, plans and facilities necessary for sewerage treatment and disposal, and/or system or systems of water supply within all or a portion of the county:  Provided, That counties shall not have power to condemn sewerage and/or water systems of any municipal corporation or private utility.
            "Such county or counties shall have the authority to control, regulate and manage such system or systems and to provide funds therefor by general obligation bonds, revenue bonds, utility local improvement district assessments and in any lawful fiscal manner."
            Insofar as the authority of other municipal corporations occupying the same area is concerned, § 17 (RCW 36.94.170) provides as follows:
            "The primary authority to construct, operate and maintain a system of sewerage and/or water within the boundaries of a municipal corporation which lies within the area of the county's sewerage and/or water general plan shall remain with such municipal corporation.  As may be permitted by other statutes, a city or town may provide water or sewer service outside of its corporate limits."
            And lastly, as also bearing upon the relationship between a county and the various other municipal corporations located therein, note should be made of § 19, chapter 72, Laws of 1967 (RCW 36.94.190) which reads as follows:
            "Every county in furtherance of the powers granted by this chapter shall be authorized to contract with the federal government, the state of Washington, or any city or town, within or without the county, and with any other county, and with any municipal corporation as defined herein or with any other municipal corporation created under the laws of the state of Washington and not limited as defined in RCW 36.94.010, or political subdivision, and with any person, firm or corporation in and for the establishment, maintenance and operation of all or a portion of a system or systems of sewerage and/or water  [[Orig. Op. Page 3]] supply.
            "The state and such city, town, person, firm, corporation, municipal corporation and any other municipal corporation created under the laws of the state of Washington and not limited as defined in RCW 36.94.010, and political subdivision, is authorized to contract with a county or counties for such purposes."
            It is, of course, a general rule of law in this state that no two public or municipal corporations are to exercise the same governmental function within the same territory at the same time.  Weatherwax v. Grays Harbor County, 116 Wash. 212, 199 Pac. 303 (1921); see, also, Alderwood Water Dist. v. Pope & Talbot, 62 Wn.2d 319, 382 P.2d 639 (1963).  However, this rule obviously pertains only in the absence of a grant of legislative authority to the contrary.
            The foregoing provisions of chapter 72, Laws of 1967, which we have quoted above constitute, in our judgment, such a grant of legislative authority to the contrary.  While primary authority to construct, operate and maintain a system of sewerage remains, under § 17, with the municipal corporation (water or sewer district) where one exists and occupies a particular area of a county, "primary" authority is by no means to be confused with "exclusive" authority.  Of course, a county could not properly go into a water or sewer district, unilaterally, and establish a sewerage system against the will or desires of the governing body of the water or sewerage district.  However, the legislature's express grant of authority in § 19 of the act (RCW 36.94.190), supra, for the execution of contracts between a county and any of the various municipalities located therein with respect to water or sewerage services makes it clear, in our judgment, that the legislature intended to allow a water or sewerage district to relinquish its "primary" authority, by agreement with the county, and thereby to authorize and sanction a county sewerage system within the area of the district.
            Accordingly, we may readily answer the first question set forth in your request, pertaining to the ability of a water district to relinquish its primary authority to the county in which it is located, in the affirmative; in so far as the manner by which this relinquishment is manifested, which is the subject of your second question, it would be our opinion that while a court might very well give effect  [[Orig. Op. Page 4]] to a unilateral waiver or relinquishment by water district board resolution, it would probably be better and more in conformity with legislative intent, as manifested in the act as a whole, if the relinquishment were to be accomplished by a bilateral contract between the district and the county executed pursuant to the provisions of § 19 (RCW 36.94.190), supra.
            It is hoped that the foregoing will be of assistance to you.
Very truly yours,
Philip H. Austin
Assistant Attorney General
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