Could East Baton Rouge use public money to repair private sewer lines under an EPA consent decree?

Plain-English summary

East Baton Rouge's City-Parish was working under an EPA consent decree to reduce sewer discharge. Its pilot program addressed leaks in public collection lines and private service lines. The parish attorney asked whether the government could repair the lines on private land without seeking repayment from owners. The Attorney General said it generally could not: the City-Parish could require owners to make the needed repairs, so assuming their costs would be a prohibited donation of public funds.

The opinion identified two narrower paths. The City-Parish could undertake repairs and charge each landowner enough to cover its cost. It also could fund repairs for people classified as needy under a social welfare program with objective screening. The AG recalled an earlier opinion that had allowed municipal beautification spending on private property because it conflicted with this office's other guidance.

Currency note

This opinion was issued in 2000. 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.

Common questions

Did the EPA consent decree itself authorize free private-line repairs?
The AG said no. He reasoned the City-Parish could meet its discharge obligation by requiring property owners to repair their own lines.

Could the City-Parish do the work and bill the owner?
Yes. The opinion said it could repair private lines if it charged a fee sufficient to defray the repair cost.

Could public funds help an owner unable to pay?
The AG said Article VII, Sec. 14(B)'s social welfare exception could apply to repairs for people objectively screened and classified as needy.

Did the AG keep the earlier beautification opinion in effect?
No. He expressly recalled Opinion 92-575 because it conflicted with other opinions on spending public money on private property.

Background and statutory framework

The request described an EPA consent decree, a time-limited sewer repair project, and the City-Parish's power to require private repairs or recover emergency work costs through a lien. The AG applied La. Const. Art. VII, Sec. 14's restriction on donations and its social welfare exception. He distinguished governmental responsibility for reducing discharge from a legal duty to pay individual owners' repair bills.

Citations and references

• La. Const. Art. VII, Sec. 14
• L.S.A. RS 33:3981

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/00-0014

Original opinion text

July 5, 2000
OPINION NUMBER 00-14

Mr. Michael E. Ponder
Parish Attorney
Parish of East Baton Rouge
P. O. Box 1471
Baton Rouge, Louisiana 70821

Dear Mr. Ponder:

Reference is made to your request for an opinion of this office regarding potential improvements to private sewer service lines at the expense of the City-Parish of East Baton Rouge.

According to your correspondence, the City-Parish has been required by the Environmental Protection Agency (“EPA”) to substantially reduce sewer discharge. In conjunction with a consent decree between the City-Parish and the EPA, the City-Parish is undertaking a pilot program to correct all leaks in the main sewer collection lines, and the lateral and service lines in a particular geographic area. You further advise that the project requires that all leaks in said lines must be repaired within a limited time frame.

As noted in your letter:

“The City-Parish currently has the authority to require the property owner to make any necessary repairs to sewer lines on their property under penalty of fines and/or jail. In the event of an immediate threat to the public health, safety and welfare, the City- Parish also has the authority to make the necessary repairs and place a lien on the property to recover any associated costs. The City-Parish also has the authority under the provisions of L.S.A. RS 33:3981 and 3996 to construct a new system and pay all or a portion of the costs.”

However, even though the City-Parish has such authority, you have requested our opinion as to whether the City-Parish can make the necessary repairs to sewer lines that are on private property and absorb all or some of the repair costs. Specifically, you ask this office to examine whether the provisions of La. Const. Art. VII, Sec. 14 are violated if the City makes the repairs without seeking

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Mr. Michael E. Ponder
OPINION NUMBER 00-14
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to recover the cost of repairs made on private property, in light of the fact that the City-Parish has a legal duty, under its consent decree with the EPA, to conduct the pilot program.

As you are no doubt aware, La. Const. Art. VII, Sec. 14 generally prohibits the state and its political subdivisions from loaning, pledging, or donating public funds, credit, property, or things of value to or for any person, association or corporation, public or private. The Supreme Court has interpreted Art. VII, Sec. 14 to be violated whenever the state or a political subdivision seeks to give up something of value when it is under no legal obligation to do so. City of Port Allen v. Louisiana Municipal Risk Agency, 439 So.2d 399 (La. 1983).

This office has construed the “legal obligation” requirement referred to in the City of Port Allen decision to be a requirement that the purpose of and power for a particular expenditure of public funds be “sanctioned”, or “authorized by law”, or in the “discharge of a legal duty”. Op. Atty. Gen. No. 92-204. See also: Guste v. Nicholls College Foundation, 564 So. 2d 682 (La. 1990). The opinions of this office also refer to the requirement of “an underlying legal obligation or authority” for the transfer of public funds. Op. Atty. Gen. Nos. 92-543, 92-494, 92-402, 92- 204.

There can be no question but that the City-Parish of East Baton Rouge has no general obligation or authority to individual property owners or citizens to expend public funds to improve or repair the sewer lines located on their private property. Therefore, the issue that this office must address is whether the City-Parish’s agreement with the EPA provides sufficient legal obligation or authority for the City-Parish to make repairs to private sewer lines.

Respectfully, we must advise that in our opinion the City-Parish may not assume the cost of sewer line repairs to lines located on private property, as the assumption of those costs would be tantamount to a donation. In accord: Op. Atty. Gen. Nos. 98-432, 97- 99, 96-348, 90-498, 78-1562. By virtue of the City- Parish’s authority to compel private property owners to make necessary repairs, the City-Parish is not required or obligated to fund the repairs with public money. Although the City-Parish is obligated to the EPA to reduce sewer discharge, it can apparently accomplish what needs to be done on private property by requiring necessary repairs to be made by the property owners. Since the City- Parish has the authority to require private property owners to make sewer repairs, the need for the City-Parish to publicly fund the repairs is obviated. In accord: Op. Atty. Gen. No. 98-432, 97-99, 93-789.

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Mr. Michael E. Ponder
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Please note that La. Const. Art. VII, Sec. 14(B) contains an exception to the general rule of Art. VII, Sec. 14 in that the donation of public funds is permissible for programs of social welfare for the aid and support of the needy. Art. VII, Sec 14(B) has been construed to include the use of public property as well as funds for social welfare purposes. Op. Atty. Gen. Nos. 98-432, 98-238, 97-236, 87- 587, 84-161. Therefore, in our opinion, the City-Parish could, in accordance with Art. VII, Sec. 14(B), fund sewer line repairs located on private property if the public funds are utilized for those who can be classified as needy and if those who receive assistance are screened through objective criteria to ensure that they are truly needy. In Accord: Op. Atty. Gen. No. 98-432.

It is also our opinion that the City-Parish is not prohibited from undertaking the repair of sewer lines located on private property as long as the City-Parish charges each landowner a fee that is sufficient to defray the cost of the repairs. Op. Atty. Gen. Nos. 98-432, 97-99, 95-221.

As your letter indicated, Op. Atty. Gen. No. 92-575 provides that a municipality could undertake the cost of paint and repair to private property for purposes of municipal beautification. However, that opinion is in direct conflict with a number of other opinions issued by this office, to-wit: Op. Atty. Gen. Nos. 99-166, 94- 518A, 94-518, 92-780, 92-402. Op. Atty. Gen. No. 92-575 is hereby recalled.

We trust the foregoing to be responsive to your request. Please do not hesitate to contact this office if we can be of assistance in other areas of the law.

Yours very truly,

RICHARD P. IEYOUB
ATTORNEY GENERAL

BY: ________
JEANNE-MARIE ZERINGUE BARHAM
Assistant Attorney General

RPI:JMZB:jv

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Mr. Michael E. Ponder
OPINION NUMBER 00-14
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OPINION NUMBER 00-14

90-A-2 PUBLIC FUNDS – Loan, Pledge or Grants

Even though City-Parish of East Baton Rouge is obligated to the EPA to reduce sewer discharge, it can not publicly found the repair of sewer lines located on private property. Recalls Op. 92-575.

Mr. Michael E. Ponder
Parish Attorney
Parish of East Baton Rouge
P. O. Box 1471
Baton Rouge, Louisiana 70821

DATE RECEIVED:

DATE RELEASED: July 5, 2000

JEANNE-MARIE ZERINGUE BARHAM
ASSISTANT ATTORNEY GENERAL