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AGO 1965 No. 48 - October 19, 1965
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John J. O'Connell | 1957-1968 | Attorney General of Washington


DISTRICTS ‑- DIKING ‑- AUTHORITY ‑- ACQUISITION OF LAND ETC. OUTSIDE BOUNDARIES.

1. A diking district may improve a portion of the channel of a stream located outside its boundaries.

2. A diking district is authorized to operate a pumping plant which would evacuate waters from district lands into a river bordering the district.

3. A diking district may construct and operate a floodwater retarding structure located outside its boundaries.

                                                              - - - - - - - - - - - - -

                                                                October 19, 1965

Honorable H. Maurice Ahlquist
Director, Department of Conservation
335 General Administration Building
Olympia, Washington

                                                                                                                Cite as:  AGO 65-66 No. 48

Dear Sir:

            By letter previously acknowledged, you requested advice of this office on questions which we have paraphrased as follows:

            1. Where a stream flowing through a diking district originates on lands outside the district, may a district "improve" a portion of the channel of the stream located outside the district's boundaries?

            2. Is a diking district authorized to operate a pumping plant which would evacuate waters from district lands into a river bordering the district?

            3. May a diking district construct and operate a "floodwater retarding structure" located outside the district's boundaries?

            We answer your questions in the affirmative.

                                                                     ANALYSIS

            You have informed us that a diking district, which your office may assist financially, presently operates and maintains  [[Orig. Op. Page 2]] a "substandard" system of dikes.  In an attempt to improve its present system, the district proposes to undertake a construction and improvement program with regard to a natural watercourse that originates outside the district; flows through the district; and discharges into a large river which borders the district.

            The program is made up of three projects all of which are designed to supplement the existing diking system, and to prevent entirely or, at the least, substantially reduce the overflow of waters from the watercourse in question thereby reducing damage to lands in the district caused by such uncontrolled waters.  One part of the integrated program is the construction of a "retarding structure (dam and reservoir) to control upper watershed runoff into the lower, district lands."  The second is the "rectification" of the channel of the stream both within and without the district so as to provide "safe conveyance of floodwater and drainage water through the district."  The third part is the construction of a pumping plant for use in evacuating waters of the stream into the large river bordering the district at times when the levees of the district are holding back the river's waters and the waters of the stream in question cannot naturally flow into the river.

            Diking districts are quasi-municipal or public corporations organized for the primary purpose of establishing a system of dikes for the special benefit of lands within a designated area by restraining waters from coming upon said lands.  See, RCW 85.05.020; RCW 85.05.070;Columbia River T. & L. Co. v. Com'rs. of Diking Dist., 108 Wash. 148, 183 Pac. 134 (1919); Shimada v. Diking District No. 12, 139 Wash. 168, 245 Pac. 916 (1926).  As such they have only such powers as are expressly conferred on them by statute, or as are necessarily implied from the powers expressly conferred.  52 C.J.S. Levees and Flood Control § 24; also, Pacific 1st Fed. Sav. & Loan Ass'n v. Pierce Co., 27 Wn.2d 347, 178 P.2d 351 (1947).

            All of your inquiries relate to the extent of a diking district's powers.

            Question 1:

            You first inquire whether a diking district is authorized to straighten, deepen and otherwise improve the channel in question; said channel being located both within and without the district.

             [[Orig. Op. Page 3]]

            It is evidently contemplated that the structures, or some of them at least, will be located in whole or in part outside the boundaries of the district in question.  In the absence of legislative authority there would be a serious question as to the powers of the district in that regard.  However, it is stated as a general rule in 13 McQuillin, Municipal Corporations, § 37.11 (3rd Ed. 1950), p. 61, that:

            "It is competent for the legislature to confer power upon a municipality to act beyond its boundaries in making improvements and in other ways promoting municipal objects."

            Therefore, our inquiry is directed to the question of whether or not the legislature has conferred power upon diking districts in this state, either expressly or by necessary implication, to construct improvements outside their own boundaries.

            RCW 85.05.070 provides in part:

            ". . . All diking districts and the commissioners thereof now organized and existing, and all diking districts hereafter to be organized, and the commissioners thereof shall have in addition to the rights, powers and authority now conferred by any law of this state:

            "(1) The right, power and authority to straighten, widen, deepen and improve any and all rivers, watercourses or streams, whether navigable or otherwise, flowing through or located within the boundaries of such diking district, or any rivers, watercourses or streams which shall at any time by their overflow damage the land within the boundaries of any such diking district."

            Subsection (1) authorizes diking districts to improve rivers or streams of two different categories.  It relates first to all watercourses which are "flowing through or located within" a diking district, and second, to all watercourses the waters of which "shall at any time by their overflow damage land" within the district.

             [[Orig. Op. Page 4]]

            In our opinion RCW 85.05.070 (1) provides to diking districts authority not only to improve river and stream channels located within the district's boundaries, but, assuming that the waters of the river or stream in question "shall at any time by their overflow damage land" within the district, without the boundaries of the district as well.  See, also, RCW 85.05.230.

            Question 2:

            You next ask whether a diking district may operate a pumping plant which would evacuate waters from district lands into a river bordering the district.

            RCW 85.05.070 in subsection (2) thereof authorizes diking districts

            "To construct all needed and auxiliary dikes, drains, ditches, canals, flumes, locks andall other necessary artificial appliances, wherever situated, in the construction of a diking system and which may be necessary or advisable to protect the land in any diking district from overflow, or to provide an efficient system of drainage for the land situated within such diking district, or to assist and become necessary in the preservation and maintenance of such diking system."  (Emphasis supplied.)

            Webster's New International Dictionary (2nd Ed. 1950), p. 131, defines "appliance" as

            "3. A thing applied or used as a means to an end; a piece of apparatus; device; as, to use a mechanical appliance."

            Construing as we do that a pumping plant is an appliance within this definition, it is our opinion that a diking district is authorized by RCW 85.05.070 (2) to operate a pumping plant for the purpose of evacuating such waters.

            Question 3:

            Your final inquiry relates to whether a diking district may construct, operate and maintain a "floodwater retarding structure (dam and reservoir)" located outside the district which,  [[Orig. Op. Page 5]] as an integral part of the diking system, is designed "to control upper watershed runoff into the lower district lands."

            As we noted in answering Question 2, RCW 85.05.070 authorizes diking districts to construct all needed and auxiliary dikes, drains, ditches, canals, flumes, locks and all other necessary artificial appliances, wherever situated, in the construction of a diking system which may be necessary or advisable to protect land in a diking district from overflowing waters.  A water "retardation structure" (or dam) is in our opinion an appliance within the meaning of RCW 85.05.070 (2).1/   See the definition of "appliance,"supra.

            RCW 85.05.070 (2) states that such appliances may be constructed by a diking district "wherever located."  From this language it is clear that activities authorized to be conducted in subsection (2) are not limited to the specific area within the boundaries of the district but contemplates activities outside the district as well.

            Where, as you relate, a diking district proposes to improve upon the means of carrying out the purposes for which it was created by adding as an integral part of its system a "retardation structure" to be located outside the district's boundaries, it is our opinion that the district may undertake such a project.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

CHARLES B. ROE, JR.
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Webster's New International Dictionary 2nd Ed. 1950), p. 664, defines a "dam" as"  "1.  A barrier to prevent the flow of water . . . 3.  A device to prevent the course of anything moving . . ."

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