Can a Mississippi county board of supervisors use county funds to repair a dam on private property when the dam threatens to wash out a nearby public road?

Plain-English summary

Clarke County had a problem. Beaver activity had compromised a dam on private property. If the dam breached, a nearby public road would wash out. The County asked whether it could use public funds to repair a privately owned dam.

AG Fitch said yes, the County may repair the dam, if the board meets the requirements of § 19-5-92.1(1)-(2). The opinion works through that statute rather than any general public-purpose doctrine.

Section 19-5-92.1(1) authorizes a county board of supervisors to perform certain water-related work "whenever the board determines that the health, comfort and convenience of the inhabitants of the county will be promoted." The authorized categories include altering or changing the channels of streams or water courses, and incurring costs to provide labor, materials, and supplies to clean or clear drainage ditches, creeks, channels, or conduits (both natural and man-made) and to prevent erosion of those features. The opinion does not declare that a dam repair fits those categories; it says the board must make that factual determination itself.

Section 19-5-92.1(2) explicitly allows that work to take place "on public or private property." So the private-property barrier is statutorily lifted, but only if the board complies with four procedural conditions:

1. Finding on minutes: The board must enter a finding on its official minutes that the work is necessary to promote public health, safety, and welfare. Not just a vote, but a formal documented finding.
2. Written notice to affected owners: All property owners affected by the work must receive written notice, for a period of time long enough to allow objections.
3. No written objection: If any affected owner files a written objection during the notice period, the project cannot proceed under § 19-5-92.1.
4. Access infrastructure: Unless the board and the landowner agree otherwise in writing, the county must build or install any culverts or bridges (at county expense) that the landowner needs to maintain the access to their property they had before the work.

The AG also flagged two practical points. First, the office cannot make the factual determinations the board needs to make. Whether the dam work fits § 19-5-92.1(1)'s list of authorized categories and whether the work will in fact promote public health, safety, and welfare are board judgments, not AG calls. Second, the AG recommends contacting the Mississippi Department of Environmental Quality (MDEQ) before doing dam work, both for permitting reasons and because watershed implications can extend beyond county lines.

For county boards of supervisors facing a private dam or drainage problem that threatens public infrastructure: The opinion reads § 19-5-92.1 as a path, conditioned on the four requirements in subsection (2): a finding on the minutes that the work is necessary to promote public health, safety, and welfare; written notice to all affected owners for a reasonable period to allow objections; no written objection from any affected owner within that period; and, unless otherwise agreed in writing, construction of any culvert or bridge needed to restore the landowner's prior access, at county expense. The opinion adds that the board must also determine the work falls within § 19-5-92.1(1)'s authorized categories, and recommends speaking with the Mississippi Department of Environmental Quality about the matter and any relevant watershed resources.

For private landowners receiving a § 19-5-92.1 notice: The statute, as the opinion describes it, lets you file a written objection during the notice period, and a written objection from any affected owner means the work cannot proceed under § 19-5-92.1(2)(c). It also entitles you, unless you agree otherwise in writing, to a culvert or bridge at county expense restoring the access you had before the work.

For attorneys advising counties: The opinion confines itself to § 19-5-92.1, which covers water-course, drainage, and erosion work as listed in subsection (1). It does not address dam construction or dam-safety regulation; on that, it only recommends contacting MDEQ. Note too that under § 7-5-25 the AG declined to decide whether this particular repair fits the statute's categories or in fact promotes public health, safety, and welfare; those are board determinations.

Common questions

Q: What kinds of work are authorized?
A: Section 19-5-92.1(1) covers altering or changing the channels of streams or water courses, and incurring costs to provide labor, materials, and supplies to clean or clear drainage ditches, creeks, channels, or conduits (natural and man-made) and to prevent erosion of such features. The opinion does not declare that the dam repair fits those categories; it states the board must determine that for itself.

Q: What is the "finding on minutes" requirement?
A: Section 19-5-92.1(2)(a) requires the board to make "a finding, as evidenced by entry upon its minutes, that such work and/or expenses are necessary in order to promote the public health, safety and welfare of the citizens of the county." A footnote to the opinion repeats that all findings should be evidenced by entry on the board's minutes.

Q: What counts as proper "written notice" to affected owners?
A: The statute, as quoted in the opinion, requires notice "in writing, to all owners of property that will be affected by the work for such period of time as is reasonable to allow such owners to express any objections." The opinion does not set a fixed number of days; it leaves the "reasonable" period to the statute's terms.

Q: What happens if one of multiple affected owners objects?
A: Section 19-5-92.1(2)(c) provides that the county must not receive written objection from any affected owner within the period allowed for objections. The opinion treats that as a condition of proceeding under the statute; it does not address any alternative route if an objection is filed.

Q: What is the culvert/bridge obligation?
A: Section 19-5-92.1(2)(d) requires the county, unless otherwise agreed in writing with the landowner, to construct or install a culvert or bridge at the county's expense to provide ingress and egress to all of the property the landowner could access immediately before the work.

Q: Why does the AG recommend contacting MDEQ?
A: The opinion's only statement on this is its recommendation that the County speak with the Mississippi Department of Environmental Quality "regarding this matter and any potentially relevant watershed resources." The opinion does not cite any specific dam-safety statute or permitting requirement.

Background and statutory framework

Section 19-5-92.1(1) authorizes a county board of supervisors to perform listed water-related work "whenever the board determines that the health, comfort and convenience of the inhabitants of the county will be promoted," including altering or changing the channels of streams or water courses and incurring costs to clean or clear drainage ditches, creeks, channels, or conduits and to prevent their erosion. Subsection (2) provides that this work "may take place on public or private property," and then sets four conditions where private property is involved: a finding on the board's minutes that the work is necessary for public health, safety, and welfare; written notice to all affected owners for a reasonable period to allow objections; no written objection from any affected owner within that period; and, unless otherwise agreed in writing, construction of a culvert or bridge at county expense to restore the landowner's prior access.

The AG's role here is limited. Section 7-5-25 authorizes the office to opine on prospective questions of state law only and bars it from making determinations of fact (citing the Barton opinion). Whether a specific dam repair fits § 19-5-92.1(1)'s categories and whether it will promote public health, safety, and welfare are factual determinations the opinion leaves to the board, which is why the opinion sets out the statutory conditions rather than approving the project outright.

Citations and references

Statutes: Miss. Code Ann. § 19-5-92.1 (the operative statute); § 19-5-92.1(1) (authorized water-related work); § 19-5-92.1(2) (private-property conditions: minutes, notice, no objection, culvert/bridge); § 7-5-25 (AG opinion scope).

Prior AG opinions referenced: Barton (May 17, 2021) (AG may not opine on determinations of fact).

External agency referenced: Mississippi Department of Environmental Quality (MDEQ) (the opinion recommends contacting MDEQ about the matter and any relevant watershed resources).

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2026/05/R.-Caves-May-11-2026-Repair-of-Dam-on-Private-Property-Under-Section-19-5-92.1.pdf

Original opinion text

May 11, 2026

Risher G. Caves, Esq.
Attorney, Clarke County Board of Supervisors
Post Office Drawer 167
Laurel, Mississippi 39441-0167

Re: Repair of Dam on Private Property Under Section 19-5-92.1

Dear Mr. Caves:

The Office of the Attorney General has received your request for an official opinion.

Background

According to your request, due to beaver activities in a pond, a dam on private property needs serious repair and bolstering. If left unrepaired, the breached dam threatens to wash out a nearby public road.

Question Presented

If the Clarke County ("County") Board of Supervisors ("Board") makes a finding by entry upon its minutes that such work to repair the dam and the expenses incurred thereby are necessary to promote the public health, safety, and welfare of the citizens of the County under Mississippi Code Annotated Section 19-5-92.1, may the County undertake the repair work and bear the expenses to repair the dam on private property?

Brief Response

If the Board meets the requirements set forth in Section 19-5-92.1(1)-(2), including but not limited to making the factual determinations that (a) the work to repair the dam falls within the category of allowances set forth in Section 19-5-92.1(1), and (b) doing so will (1) promote the "health, comfort and convenience of the inhabitants of the county," and (2) "promote the public health, safety and welfare of the citizens of the county," the County may repair the dam.

Applicable Law and Discussion

To begin, Section 7-5-25 authorizes this office to opine upon prospective questions of state law only; we are unable to opine upon determinations of fact. MS AG Op., Barton at *1 n.2 (May 17, 2021).

Section 19-5-92.1(1) authorizes a county board of supervisors to perform certain water-related work "whenever the board determines that the health, comfort and convenience of the inhabitants of the county will be promoted." This authority includes the ability to "[a]lter and change the channels of streams or other water courses" and "[i]ncur costs and pay necessary expenses for: . . . [p]roviding labor, materials and supplies to clean or clear drainage ditches, creeks or channels or conduits, both natural and man-made and to prevent erosion of such ditches, creeks or channels." Miss. Code Ann. § 19-5-92.1(1).

Subsection (2) makes clear that "[t]he work performed and the expenses incurred under subsection (1) of this section may take place on public or private property." Miss. Code Ann. § 19-5-92.1(2) (emphasis added). But in the instance that private property is involved, a county board of supervisors must meet certain requirements, including:

(a) Make a finding, as evidenced by entry upon its minutes, that such work and/or expenses are necessary in order to promote the public health, safety and welfare of the citizens of the county;

(b) Give notice, in writing, to all owners of property that will be affected by the work for such period of time as is reasonable to allow such owners to express any objections;

(c) Not receive written objection to the work by any owners of property that will be affected by the work within the period of time allowed to express objections; and

(d) Unless otherwise agreed, in writing, by the county and the landowner, construct or install a culvert or bridge, at the county's expense, at an appropriate location or locations to provide the landowner ingress and egress to all of the property to which the landowner had access immediately before performance of the work by the county.

Miss. Code Ann. § 19-5-92.1(2).

Based on the foregoing, if the Board (a) determines that work to repair the dam falls within the category of allowances set forth in Section 19-5-92.1(1), and (b) meets the requirements set forth in Section 19-5-92.1(1)-(2), including but not limited to making the factual determinations that doing so will (1) promote the "health, comfort and convenience of the inhabitants of the county," and (2) "promote the public health, safety and welfare of the citizens of the county," it may repair the dam.[1] Lastly, we recommend speaking to the Mississippi Department of Environmental Quality regarding this matter and any potentially relevant watershed resources.

If this office may be of further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General

[1] As noted in Section 19-5-92.1(2)(a), all findings should be "evidenced by entry upon [the board's] minutes."