Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1956 No. 238 - Apr 2 1956
Attorney General Don Eastvold


Chapter 86.12 RCW, which is derived from chapter 204, Laws of 1941, empowers the various counties of this state to condemn land for and make culverts and waterways to alleviate flood conditions caused by "flood waters" only, but does not empower counties to alleviate flood conditions caused by "surface waters" comprising rain water moving across country and not coming from any definite source.  Expenditures for flood water improvements must be made out of a county river improvement fund and not out of the general or current expense fund.

County road funds may not be used for drainage of private property within the county, except the county may provide adequate drainage for its roads which may incidentally benefit adjacent private property.

Chapter 36.43 RCW does not give counties the power to drain private property within a county merely because county officials have issued building permit for such property.

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                                                                    April 2, 1956

Honorable Mark Litchman, Jr.
State Representative, 45th District
800 American Building
Seattle 4, Washington                                                                                                              Cite as:  AGO 55-57 No. 238

 Dear Sir:

             In your letter of March 1, 1956, previously acknowledged, you have requested the opinion of this office on the following questions:

              [[Orig. Op. Page 2]]

            1. Would chapter 86.12 RCW allow a county to condemn, make culverts, waterways, etc. out of the general fund so as to rid a certain area of surplus waters brought about by excessive rains and flood waters?

             2. Can county road funds or flood water funds be used for the purpose of eliminating water hazards in residential areas in King County?

             3. Does the fact that a county issues a building permit for single family residences in such a residential area allow the county to provide funds for drainage of this area?

             Our answer to questions 1 and 3 is in the negative.  Our answer to question 2 is in the negative, except that (1) flood water funds may be used to alleviate conditions caused by "flood waters" but not "surface waters," and that (2) the county may provide funds for adequate drainage of county roads from the county road fund which may incidentally provide drainage for private property adjacent to such roads.


             1. With regard to your first question, we must consider whether a county has the power to spend general funds or current expense funds to control surplus waters brought about by heavy rains within the county.  Our opinion is that it lacks this power.  Counties are local subdivisions of the state created by the sovereign power of the state, without the consent of the inhabitants and with direct exclusive reference to the policy of the state, and are but a branch of the general administration of that policy.  State v. Vantage Bridge Co., 134 Wash. 568.  As instrumentalities of the state, they have no powers except those expressly conferred by the constitution and state laws, or those which are reasonably or necessarily implied from the granted powers.  State ex rel. Taylor v. Superior Court of King County, 2 Wn. (2d) 575.  County commissioners have only such powers as are expressly granted to them or necessarily implied from those given.  State ex rel. Becker v. Wiley, 16 Wn. (2d) 340.

             Powers of counties relating to disbursement of public funds are wholly regulated by statute.  State ex rel. Thurston County v. Department of L. & I., 167 Wash. 629.  At common law a municipal corporation is under no obligation to provide drainage or sewerage for its inhabitants.  18 McQuillin on Municipal Corporations (3rd ed.) 471, § 53.119.

              [[Orig. Op. Page 3]]

            We have been unable to discover any authority, statutory or constitutional, empowering a county to provide for surface drainage of private property lying within the county from current expense or general funds.  We refer you to our opinion of March 7, 1956, AGO 55-57 No. 218 [[to Charles O. Carroll, Prosecuting Attorney, King County]], a copy of which is enclosed herewith.

             You suggest, however, that chapter 86.12 RCW may give counties this power.  The preamble to chapter 86.12 RCW (§ 1, chapter 204, Laws of 1941), which is not contained in the Revised Code of Washington, sets forth the policy behind the enactment of this chapter as follows:

             "It is hereby recognized that destructive floods upon the streams and other bodies of water in the State of Washington, subject to flood conditions, upsetting orderly processes and causing loss of life and property, including erosion of lands and impairing and obstructing navigation, highways and railroads and other channels of commerce, constitute a menace to general welfare.  It is the purpose of the State of Washington in the exercise of its sovereign and police powers, and in the interests of public welfare, to establish a state and local participating flood control maintenance policy."

             RCW 86.12.010 and 86.12.020 are derived from §§ 8 and 9, chapter 204, Laws of 1941.  As there is some variance between the code and session law, we quote from the latter as follows:

             ". . .

             "The County Commissioners of any county may annually levy a tax, beginning with the year 1907, in such amount as, in their judgment they may deem necessary or advisable, but not to exceed one (1) mill upon all taxable property in such county, for the purpose of creating a fund to be known as 'river improvement fund.'  There is hereby created in each such river improvement fund an account to be known as the 'flood control maintenance account.'"

             ". . .

             "Said fund shall be expended for the purposes in this act provided.  Any county, for the control of waters subject  [[Orig. Op. Page 4]] to flood conditions from streams, tidal or other bodies of water affecting such county, may inside or outside the boundaries of such county, construct, operate and maintain dams and impounding basins and dikes, levees, revetments, bulkheads, riprap or other protection; may remove bars, logs, snags and debris from and clear, deepen, widen, straighten, change, relocate or otherwise improve and maintain stream channels, main or overflow; may acquire any real or personal property for the prosecution of such works; and may construct, operate and maintain any and all other works, structures and improvements necessary for such control; and for any such purpose may purchase, condemn or otherwise acquire land, property or rights, including beds of non-navigable waters and state, county and school lands and property and may damage any land or other property for any such purpose, and may condemn land and other property and damage the same for any other public use after just compensation having been first made or paid into court for the owner in the manner prescribed in this act.  The purposes in this act specified are hereby declared to be county purposes."

             There is a clear distinction between "flood waters" and mere "surface waters."  "Surface waters" comprising rain water moving across the county and not coming from any definite source are clearly distinguished from "flood waters." or waters spreading out from overflowing streams having definite channels.  Alexander v. Muenscher, 7 Wn. (2d) 557; Dahlgren v. Chicago M. & St. P. Ry. Co., 85 Wash. 395; Miller v. Eastern Railway and Lumber Co., 84 Wash. 31, 35;Seufert v. Cook, 241 Pac. 418, 420, 74 Cal.App. 528;Poole v. Sun Underwriters Ins. Co. of New York, 274 N.W. 658, 660, 65 S.D. 422.

             A reading of the statutes cited above indicates that they were intended by the legislature to apply to waters subject to flood conditions from streams, watercourses and other bodies of water.  We must emphasize the apparent intention of the legislature to exclude from the scope of these statutes all waters except flood waters.  Drainage of surface waters may be undertaken through local improvement districts organized pursuant to chapter 85.04 RCW.

              [[Orig. Op. Page 5]]

            We conclude that a county does not have the power to use general funds or flood water funds for drainage of surface waters within the county.  The flood water account of the river improvement fund may only be used by the county for alleviation of flood conditions caused by the overflow of rivers, streams, watercourses or bodies of water having definite channels or courses.

             2. Your second question is whether or not county road funds may be used for drainage of private property within the county.

             RCW 36.82.070 authorizes the county to use road funds for maintenance of county roads.  If the roads in the area you have referred to are county roads, then the county may use road funds to maintain these roads in a normal, usable condition and may thereby incidentally provide beneficial drainage to the private property in this area.  However, we have not discovered any authority which would allow a county to use road funds for drainage of private property within the county.  See AGO 55-57 No. 218 [[to Charles O. Carrol, Prosecuting Attorney, King County on March 7, 1956]].

             3. Your third question is whether the granting of a building permit by county officials for the construction of a residence in an area within the county would authorize the county issuing such permit to provide funds for drainage of the area.

             The county commissioners have authority by virtue of chapter 36.43 RCW to regulate construction of new buildings by means of enacting building codes and issuance of building permits.  See 47 OAG 24 [[to Stanley J. Krause, Prosecuting Attorney, Grays Harbor County on March 31, 1947]].  Such building codes are penal issuance of building permits.  See 47 OAG 24.  Such building codes are penal or regulatory in nature, and their primary purpose is to secure to the municipality as a whole the benefits of a well-ordered municipal government and not to protect the personal or property interests of individuals.  Building codes require strict construction.  7 McQuillin on Municipal Corporations (3rd ed.) 493, § 24.507.  Chapter 36.43 RCW contains no language authorizing counties to undertake any type of drainage improvement on property where such permits have been granted.

             We conclude that the fact that county officials have granted a building permit to a landowner within the county does not empower the county to provide drainage for the property on which the building permit was granted.

             We hope that the above information will be of assistance to you.

 Very truly yours,
Attorney General 

Assistant Attorney General