Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1954 No. 354 -
Attorney General Don Eastvold


State may only reimburse a flood control district for 50% of the amount expended for flood control maintenance under a contract for state participation between the department of soil conservation and development and the flood control district.

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

                                                                December 2, 1954

Honorable George R. Thompson
Assistant Director
Department of Conservation
and Development
Transportation Building
Olympia, Washington                                                                                                             Cite as:  AGO 53-55 No. 354

Dear Sir:

            We have your letter of November 5, 1954, in which you asked our opinion as to whether the state, under contract with a flood control district, may pay a determined percentage of the completed cost of a flood control project, where the federal government, without the state's knowledge, furnished the remaining funds needed.

            It is our opinion that the state may not pay more than fifty percent of that portion of the completed cost which the flood control district expended from its flood control maintenance fund.


            In March, 1954, the Wenatchee‑Entiat Soil Conservation District applied to the State of Washington, Department of Conservation and Development, for state participation in flood control maintenance on Mission Creek.  The state agreed to pay 29% of the completed cost of the project which was estimated at $20,690.  In April 1954, without the knowledge or consent of the state, the  [[Orig. Op. Page 2]] district entered into an agreement with the federal government under which the federal government executed the project on a matching fund basis, the district paying a fixed percentage of the total cost.  The district, under the federal agreement, was required to deposit its portion of the total estimated cost with the Treasurer of the United States in a special trust fund account along with the federal funds allocated for the project.  Upon completion of the project, the district presented a claim to the state, under the original agreement, for 29% of the completed cost of the project.  If the claim is paid, the district will be fully reimbursed for its expenditures.

            The question is, how far may the state go in reimbursing the district under the contract and applicable statutes?

            The state is authorized by statute to participate in flood control projects which are affected with the public interest, and which shall bring about public benefits commensurate with the amount of state funds allocated for that purpose.  RCW 86.26.050.  State participation is specifically provided for in RCW 86.26.100, as follows:

            "State participation in the cost of any flood control maintenance project shall be provided for by a written memorandum agreement between the director of conservation and development and the corporate authorities of the local sponsoring party, which agreement, among other things, shall state the estimated cost and the percentage thereof to be borne by the state.  In no instance, except on emergency projects, shall the state's share exceed one‑half the cost of the project.  State participation in any soil conservation district shall not, in the aggregate, exceed ten thousand dollars in any fiscal year, and shall be only in projects approved and recommended by the district's board of supervisors."

             [[Orig. Op. Page 3]]

            The district, under RCW 86.26.070, is authorized to maintain a fund for flood control purposes.

            "* * * Such fund may be maintained by transfer thereto of moneys derived from regular or special lawful levies for flood control purposes, moneys which may be lawfully transferred to it from any other municipal fund; and gifts and contributions received for flood control purposes.  * * *"

            The section then requires that all the costs and expenses of flood control maintenance be paid out of this fund.

            RCW 86.26.110 provides the method for obtaining a warrant from the state for the amount of the state's contribution.  It provides:

            "No warrant shall be drawn by the state auditor to the credit of theflood control maintenance account of any participating local agency except on vouchers forreimbursement of expenditures therefor made and properly supported and approved by the local flood control engineer and by the supervisor of flood control."  (Emphasis supplied)

            Under these provisions, the state is authorized to reimburse the district's flood control fund for an amount up to fifty percent of the actual expenditures made therefrom for the flood control project.  It appears from the terms of the federal contract with the district that the project was not paid for out of the district flood control fund, but out of the federal trust fund.  The district fund, if there were one, did not consist of the whole amount available for the project, but merely consisted of the amount the district contributed to the project.  This amount was transferred from the district fund to the special trust fund.  The state is authorized only toreimburse the flood control maintenance account of the district.  The district expended an amount equal to 26.34% of the total cost of the project.  The state, under those circumstances, by statute may only reimburse the district for an amount not exceeding one‑half of the 26.34% of the total cost to the district, which is 13.17% of the total cost of the project.

             [[Orig. Op. Page 4]]

            The question has been raised whether the federal contribution may be considered a gift or contribution to the district flood control account.  It is apparent that even if it be considered a contribution of gift, it was not placed in the district fund, but was expended directly from the federal trust fund to the project itself.  Under these circumstances no warrant could issue to cover any percentage of that amount which was never placed in the district account, and was not an expenditure from the district fund.

            The logical result, therefore, is that the contract between the state and the district is abrogated under the statutes, by the subsequent action of the district and the state is thereby released of all liability under the agreement.  The state may, however, execute a new contract to reimburse the district in an amount not to exceed fifty percent of the cost to the district of this project.

Very truly yours,

Attorney General

Assistant Attorney General