Could a Kentucky city pay to maintain a flood-control waterway beyond its city limits?

Plain-English summary

Middlesboro's mayor asked whether the city could pay to maintain a flood-control waterway extending beyond its limits after the Army Corps of Engineers sought maintenance of the whole project. The Kentucky Attorney General said in 2012 that the city could not unilaterally spend its funds on the portion outside its boundaries. Kentucky's municipal home-rule provision, as the opinion quoted it, authorized city functions within city boundaries; the AG identified no statute allowing this unilateral spending beyond them.

The opinion identified a joint route. KRS 65.240 allowed public agencies to exercise powers together, so Middlesboro could enter an interlocal agreement with the agency whose territory contained the outside portion. The AG also said a federal agency acting under valid authority had to direct any compelled maintenance to the political subdivision with jurisdiction over that portion, not to a city lacking it.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Cities with projects crossing their borders

The AG distinguished paying alone for an outside waterway from acting jointly with the public agency responsible for that territory. It said KRS 82.082 gave cities home-rule powers within their boundaries, while KRS 65.240 allowed an interlocal arrangement for jointly exercising a public agency's authority.

Agencies overseeing flood-control work

The opinion treated the Corps' requested maintenance as outside Middlesboro's unilateral power for the portion north of city limits. Assuming a federal agency had valid power to compel maintenance, the AG said it would have to direct that requirement to the state subdivision with territorial jurisdiction.

Common questions

Could Middlesboro alone maintain the whole Yellow Creek project with city funds?

The AG said no for the portion beyond its boundaries. The city had contracted to fund the portion within its limits, but the opinion found no authority for unilateral spending on the outside portion.

Could the city share the outside maintenance cost with another public agency?

Yes, the AG said an interlocal agreement with the political subdivision containing that waterway could allow joint maintenance spending under KRS 65.240.

Did the opinion accept the Corps' demand that the city alone maintain the outside portion?

No. The AG said a federal agency could not require a city to perform an act outside its state-law authority. It conditioned any compulsion of another political subdivision on the federal agency's having valid authority.

Background and statutory framework

The request arose after a federal flood-control project along Yellow Creek extended about five miles beyond Middlesboro's limits. The AG read KRS 82.082's municipal powers alongside KRS 65.240's authority for joint exercise of public-agency powers. It also cited KRS 178.010(1)(b)'s inclusion of waterways in the definition of county roads when drawing an analogy to earlier AG opinions about bridge maintenance across county lines.

Citations and references

• KRS 82.082: city home-rule powers within municipal boundaries.
• KRS 65.240: joint exercise of public-agency powers through an interlocal arrangement.
• KRS 178.010(1)(b): waterways within the county-road definition quoted by the AG.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_1d102d53-ddab-4109-a813-a7f83d5bfa6f/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_1d102d53-ddab-4109-a813-a7f83d5bfa6f

Original opinion text

OAG 12-009
June 6, 2012
Subject:

Whether a city may expend funds to maintain a waterway that is not within its boundaries

Requested by:

William Kelley
Mayor, City of Middlesboro

Written by:

Matt James
Assistant Attorney General

Syllabus:

A city may not unilaterally expend funds to maintain
a waterway that is not within its boundaries.

Statutes construed:
OAGs cited:

KRS 65.240; KRS 82.082; KRS 178.010(1)(b)

OAG 80-642; OAG 83-340

Opinion of the Attorney General
William Kelley, Mayor of Middlesboro, has requested an opinion
from this office on whether a third class city in Kentucky may expend
significant funds to maintain that portion of a waterway that continues
beyond its corporate boundaries. Mayor Kelley informs us that the
Army Corps of Engineers had previously completed a flood control
project in the Yellow Creek area, beginning from the south limits of Middlesboro and continuing to a point approximately five miles north of the city limits. Middlesboro had entered into a contract with the Army Corps of Engineers to provide funds for the portion of the project within its boundaries, but not for the entire project. The Inspection of Completed Works program, a subdivision of the Army Corps of Engineers, is

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Page 2

now requiring Middlesboro to bear the costs of maintaining the entire
area covered by the project, including the area outside its city limits.
Failure to do so may result in an unacceptable rating, which could result in removing Middlesboro from the federal Inspection of Completed Works program. We advise that a city may not unilaterally expend funds to maintain an area not within its boundaries, although it may join with another public subdivision with jurisdiction over the area in expending funds to maintain the area. Accordingly, a federal agency may not require a city to maintain a waterway that is not within the city’s boundaries, and may only require the state political subdivision with jurisdiction over the waterway to maintain it, provided the federal agency has the authority to do so. “A municipal corporation possesses no powers except those expressly granted or those essential to the accomplishment of its declared objectives and purposes.” City of City of Bowling Green v. Gasoline Marketers, Inc., 539 S.W.2d 281, 284 (Ky. 1976). The primary grant of authority to cities is the “home-rule” provision of KRS 82.082, which provides that “A city may exercise any power and perform any function within its boundaries… that is in furtherance of a public purpose of the city and not in conflict with a constitutional provision or statute.” There is no grant of authority for a city to perform any function outside of its boundaries, so a city may not perform any function outside of its boundaries without express statutory authorization. However, KRS 65.240 provides that “Any power or powers, privileges or authority exercised or capable of exercise by a public agency of this state may be exercised and enjoyed jointly with any other public agency of this state.” So if some state agency may validly exercise a power, another state agency may exercise that power jointly with it. In OAG 80-642 and OAG 83-340, we addressed the issue of whether a county may expend funds to maintain a bridge that is located entirely in another county. In both opinions, we advised that a county may not unilaterally spend money to maintain a bridge in another county, but the two counties could enact an interlocal agreement to jointly expend funds to maintain the bridge. Although those opinions dealt with the authority of counties over bridges, and not cities over

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waterways, OAG 83-340 applied the definition of county roads in KRS
178.010(1)(b), which provides that “’county roads' includes necessary
bridges, culverts, sluices, drains, ditches, waterways, embankments or
retaining walls. While there are no parallel provision for cities, KRS
178.010(1)(b) indicates that waterways are to be treated as other public roads, and the reasoning of OAG 80-642 and OAG 83-340 that a county may not unilaterally expend funds to maintain roads in other counties should similarly apply to cities. Therefore, a city may not unilaterally expend funds to maintain waterways outside its boundaries without express statutory authorization; the obligation to maintain an area of a waterway must fall on the public agency that contains the area within its boundaries. However, a city may enter into an interlocal agreement with the public agency that contains the waterway within its boundaries to expend funds for the maintenance of the waterway. Since a city cannot make a unilateral expenditure of funds to maintain a waterway outside its boundaries, federal authorities may not compel a city to do so because the action would be ultra vires. “How power shall be distributed by a state among its governmental organs is commonly, if not always, a question for the state itself.” Highland Farms Dairy v. Agnew, 300 U.S. 608, 612 (1937). It is a state’s prerogative to determine the jurisdiction of its political subdivisions. “Unless a statute expressly provides otherwise, the exercise of a police power by a municipality is limited to its territorial boundaries.” Smeltzer v. Messer, 225 S.W.2d 96, 97 (Ky. 1949). Federal agencies acting under valid authority may compel state agencies to perform actions within their jurisdiction, but they cannot compel a state agency to perform an ultra vires action in the absence of statutory authority to do so. We are not aware of any statute or regulation allowing the Army Corps of Engineers to order a municipality to pay the cost of maintaining territory that is not within its borders. Assuming the federal agency has valid authority, it may compel the state political subdivision that contains the waterway within its boundaries to perform the maintenance of the waterway, but it may not compel not state political subdivisions that do not have jurisdiction over the waterway to do so.

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In sum, a city may not unilaterally expend funds for the maintenance of a waterway that is not within its boundaries, although it may enter into an interlocal agreement with the political subdivision that has the waterway within its boundaries to maintain the waterway. A federal agency seeking to compel maintenance of the waterway under valid authority must compel the political subdivision that has jurisdiction over the waterway.

JACK CONWAY
ATTORNEY GENERAL

Matt James
Assistant Attorney General