AGO 1952 No. 222 - Jan 23 1952
STATE FLOOD CONTROL FUNDS.
No state flood control funds should be spent on the rehabilitation of a dam maintained solely for the detention or storage of flood waters, but the state may participate in any project to restore the natural condition of a stream, if such participation tends to lessen flood dangers.
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January 23, 1952
Honorable W. A. Galbraith,Director
Dept. of Conservation and Development
Olympia, Washington Cite as: AGO 51-53 No. 222
Attention: Mr. George R. Thompson,Assistant Director andSupervisor of Flood Control
On January 18, 1952, you inquired whether state flood control funds may be expended upon an abandoned dam which, unless rehabilitated, is likely to be washed out by spring thaw waters?
We are of the opinion that no state flood control funds should be spent on the rehabilitation of a dam maintained solely for the detention or storage of flood waters, but that the state may participate in any project to restore the natural condition of a stream, if such participation tends to lessen flood dangers.
The people of the town of Brewster and the Department of Game desire the preservation of the dam in question. Neither, however, have sufficient funds to construct the new spillway needed to save the structure and which would eliminate all danger of a washout. Hence, the precise question is whether state flood control funds may be used for the construction of a new spillway? The answer lies within section 11, chapter 240, Laws of 1951. This statute reads as follows:
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"The state shall participate with eligible local authorities in maintaining and restoring the normal and reasonably stable river and stream channel alignment and the normal and reasonably stable river and stream channel capacity for carrying off flood waters with a minimum of damage from bank erosion or overflow of adjacent lands and property; and in restoring, maintaining and repairing natural conditions, works and structures for the maintenance of such conditions. The state shall likewise participate in the restoration and maintenance of natural conditions, works or structures for the protection of lands and other property from inundation or other damage by the sea or other bodies of water. State flood control maintenance funds shall not be available for maintenance of works or structures maintained solely for the detention or storage of flood waters." (Emphasis supplied)
No person or organization admits owning, operating or controlling the dam. It is merely a relic and is not being "maintained" at all. But should the state expend flood control funds to rehabilitate the dam, it would be for the sole purpose of maintaining a structure "for the detention or storage of flood waters." This the law specifically prohibits. See the emphasized portion of section 11,supra.
The state may, however, join in any project to restore natural stream conditions when such participation tends to eliminate flood dangers. That is, section 11,supra, impliedly authorizes the expenditure of state flood control funds on an endeavor to remove the dam, or the dangers of the dam, as such would be participation in a project to restore natural stream conditions.
We trust that the above satisfactorily answers your inquiry.
Very truly yours,
ROBERT A. COMFORT
Assistant Attorney General