Does sponsoring a federally-funded dike project make a West Virginia county commission the owner of the dike, and how long does the commission's duty to maintain the dike last?

Plain-English summary

After a 1985 flood, the Tucker County Commission sponsored several recovery projects, including a dike now legally owned by the City of Parsons. The City had used Emergency Watershed Protection (EWP) program funds, with the Commission as sponsor, to repair the dike multiple times, including in 2014. A prior Tucker County prosecuting attorney had concluded the Commission "owned" the dike because it had served as project sponsor. The dike now needed more repairs, and the City was insisting the Commission was responsible. The new prosecuting attorney asked the AG for clarity.

The AG split the question into two parts.

Ownership. The Commission does not own the dike. Federal EWP regulations distinguish between project "sponsors" (which provide local responsibility for the project) and "landusers" (the actual owners of the land). 7 C.F.R. §§ 624.4(g) and 654.2 use those two terms separately. Under Pulsifer v. United States (U.S. 2024), different terms in a statute usually carry different meanings. Sponsorship and ownership are distinct. The City of Parsons holds title; the Commission's sponsorship role does not transfer ownership.

Maintenance. The Commission likely accepted at least some maintenance responsibility when it sponsored EWP-funded work in 1986. 7 C.F.R. § 624.6(a)(2)(iii) requires sponsors to "[a]gree to provide for any required operation and maintenance of the completed emergency measures." The word "must" carries a "mandatory connotation" (Guido v. Guido, W. Va. 2008). The State Conservationist determines whether an O&M agreement is necessary based on whether the project requires operation and maintenance to serve its intended purpose or to ensure it does not become hazardous (7 C.F.R. § 654.41). For a flood-control dike, both prongs almost certainly apply.

But the duration of that maintenance is limited. Two pieces of West Virginia law cap it.

First, the O&M agreement itself sets a duration tied to the project's evaluated life or useful life (7 C.F.R. § 654.14). The duration is not perpetual.

Second, even if the agreement says otherwise, West Virginia public policy bars one county commission from tying the hands of all future commissions. Rogers v. City of South Charleston (1979), Barbor v. Mercer County Court (1920), Town of Davis v. Filler (1900), and Bradford v. W. Va. Solid Waste Management Board (2021) all reject long-term commitments that "cramp the powers" of successor governing bodies. A 1986 Commission could not, consistent with public policy, bind every future Commission to maintain a dike forever. The line is fact-specific (no bright-line "no contracts over X years"), but a perpetual obligation almost certainly crosses it.

The AG could not give a definitive answer on duration without the actual O&M agreement. The Commission had not produced one, and the only related document the AG had reviewed (a project agreement between the Soil Conservation Service and the Commission) did not contain operation-and-maintenance specifics. The opinion ends as a roadmap: locate the O&M agreement, identify its duration clause, evaluate whether public policy invalidates an unreasonably long commitment, and then determine the Commission's actual ongoing responsibilities.

What this means for you

If you are a Tucker County official

Find the 1986 O&M agreement before resolving the dispute with the City of Parsons. The opinion lays out the legal framework, but the dispositive document is the agreement itself. Likely places to look: the Commission's archived files, the City of Parsons' files, the regional Soil Conservation Service / NRCS records, and the State Conservationist's office (now the State Conservationist's office under USDA NRCS).

If the agreement caps the Commission's responsibility at the project's "evaluated life" or "useful life," determine whether that cap has been reached. The 1985 dike has now been in service for 40 years and has needed repeated repairs. Engineering testimony on remaining useful life is the practical fact question.

If the agreement purports to bind the Commission perpetually, raise the public-policy defense from Rogers, Barbor, Davis, and Bradford. A West Virginia court is unlikely to enforce a forever-obligation against a county commission.

If you are an official of the City of Parsons (or any West Virginia municipality holding title to flood-control infrastructure)

The Commission is not the owner; you are. That means primary responsibility for the asset sits with the City under property law, even if the Commission accepted some O&M responsibility through its sponsorship role. Plan your capital budget around that reality. A County Commission's O&M sponsorship is supplementary, time-limited, and possibly limited further by public policy.

If you are negotiating new EWP-funded work with the County or another sponsor, document maintenance responsibilities expressly in the O&M agreement, including duration. Get the State Conservationist to set the duration in writing. That avoids the ambiguity Tucker County now faces.

If you are a county commissioner deciding whether to sponsor a federal flood-recovery project

Sponsorship does not equal ownership. But sponsorship does come with maintenance obligations through the O&M agreement, even though those obligations are bounded in time. Before signing, ask the State Conservationist for the duration of the proposed O&M obligation. Read the contract. Calibrate the County's ongoing budget commitment to the duration the agreement specifies.

Be cautious about agreeing to commitments longer than your term plus a reasonable transition. West Virginia public policy disfavors long-term commitments that constrain successor commissions.

If you are the NRCS State Conservationist

When you set up new O&M agreements with West Virginia conservation districts or county commissions as sponsors, write the duration clause clearly. The AG opinion's emphasis on duration as the central fact question suggests that contracting practice should make duration explicit. "Useful life of the project" can be supplemented with an outside-date or a renewal-required-after-X-years approach.

When NRCS pursues enforcement under 7 C.F.R. § 654.20, expect West Virginia sponsors to raise the public-policy defense if the obligation has been running for decades. Consider how that affects your enforcement strategy.

If you are a downstream landowner concerned about an unrepaired flood-control dike

The accountability path runs through both the title-holder (typically a city) and the project sponsor (often the county). Section 7 C.F.R. § 654.20 gives the State Conservationist enforcement authority. State law may give you tort claims against either entity for negligent maintenance. Consult counsel about the specific dike, its current status, and the actual O&M agreement.

If you are a private attorney advising a county commission on long-term contractual obligations

This opinion adds another data point to the line of cases (Rogers, Barbor, Davis, Bradford) limiting commission ability to bind successors. A long-term operation-and-maintenance agreement is at risk if it constrains successor discretion to a degree the courts would find against public policy. The analysis is fact-specific; document the policy considerations in the contract or in a separate writing.

Common questions

Q: Does sponsoring a federally-funded project make the sponsor the owner?
A: No. Federal regulations distinguish "sponsor" from "landuser" (the owner). The sponsor accepts certain operational responsibilities; ownership stays with whoever holds title.

Q: What is an O&M agreement?
A: An Operation and Maintenance agreement is a legally binding contract between the project sponsor and NRCS that specifies the sponsor's responsibilities for ongoing operation, inspection, and maintenance of the completed federal-funded project. Federal regulations require these agreements when the project needs ongoing maintenance to serve its purpose or avoid becoming hazardous.

Q: How long does the maintenance obligation last?
A: The agreement sets the duration, which can run through the project's evaluated life, the evaluated life of measures evaluated as a unit, or the useful life of cost-shared land conservation measures. The duration is not perpetual under federal regulation, and West Virginia public policy adds an additional constraint against tying successor commissions' hands forever.

Q: Can a 1986 county commission bind a 2025 commission to maintain a dike?
A: For some period, yes. For perpetuity, almost certainly no. The line between enforceable and unenforceable long-term commitments is fact-specific, but a 40-year-old commitment that purports to bind future commissions indefinitely runs into the Rogers/Barbor/Davis/Bradford line of cases.

Q: What if we cannot find the O&M agreement?
A: The AG could not give a definitive answer in this opinion without the agreement. Practical alternatives include reconstructing the obligation from related records (project agreement, federal grant correspondence, inspection records), asking the State Conservationist's office for its file, and negotiating a current settlement with the City and NRCS based on the legal framework rather than the missing document.

Q: Does the AG opinion settle the Tucker County dispute?
A: It sets the legal framework but does not settle the underlying dispute, which depends on the O&M agreement's terms. The opinion confirms (1) the Commission does not own the dike and (2) any maintenance obligation is bounded in duration. It does not specify the actual duration in this case.

Q: What does Pulsifer v. United States have to do with this?
A: Pulsifer (U.S. 2024) is cited for the general statutory-construction principle that different terms in a statute usually carry different meanings. The AG used it to support the conclusion that "sponsor" and "landuser" are distinct categories under federal EWP regulations.

Q: Is the public-policy doctrine specific to county commissions, or does it apply to municipalities too?
A: The cases cited (Rogers, Barbor, Davis, Bradford) involve municipalities and counties. The doctrine applies broadly to local-government entities created by statute and reflects a structural concern about preventing one elected body from foreclosing the discretion of its successors.

Background and statutory framework

The Emergency Watershed Protection program operates under 16 U.S.C. § 1001 et seq. (the Watershed Protection and Flood Prevention Act) and federal regulations at 7 C.F.R. parts 624 and 654. NRCS administers the program (7 C.F.R. § 624.1) and provides financial and technical assistance to local entities to address watershed-impairing emergencies.

Project sponsors must qualify under 7 C.F.R. § 624.4(g): "any local unit of government … with a legal interest in or responsibility for the values threatened by a watershed emergency." Sponsors must obtain necessary land rights and carry out any operation-and-maintenance responsibilities. The "landuser" is separately defined as the "owner" of the land involved (7 C.F.R. § 654.2). The two terms operate in different roles.

When a sponsor is required to commit to O&M, that commitment is documented in an agreement. 7 C.F.R. § 654.40 puts the State Conservationist in charge of determining when an O&M agreement is necessary. Section 654.41 requires an agreement if the project "needs to be operated and maintained in order to serve its intended purpose" or to "insure that [the project] will not become hazardous." Once required, the agreement must specify duration (§ 654.14), known and anticipated maintenance, the time frame for maintenance, and reporting requirements (§ 654.19). Sponsors finance and perform the maintenance without cost to the federal government (§ 654.11(a)).

The duration framework in § 654.14 is the linchpin: O&M responsibility runs from project completion through one of three benchmarks, "(1) [t]he evaluated life of the project, or (2) the evaluated life of measures that are economically evaluated as a unit, or (3) the useful life of cost-shared measures that are for land conservation or land utilization." Perpetual commitments are not contemplated in the regulation.

The public-policy overlay comes from a line of West Virginia cases. Rogers v. City of South Charleston (1979) held that "it is beyond the power of the governing body of a municipality to tie the hands of future governing bodies in exercising the full jurisdiction of their office by depriving them of a discretion which public policy demands remain unimpaired." Barbor v. Mercer County Court (1920) rejected a three-year employment contract for the same reason. Town of Davis v. Filler (1900) framed the doctrine: long-term contracts that "cramp the powers of the town, defeat the performance of some of its essential functions, and [are] very hurtful to public interests" are unenforceable. Bradford v. W. Va. Solid Waste Management Board (2021) reaffirmed the line.

The doctrine does not provide a bright-line time limit. Instead, it requires evaluation of (1) the local government's statutory entitlements and discretion, (2) the scope and duration of the contractual commitment, and (3) whether the commitment forecloses future discretion that public policy demands remain available. A 40-year-old O&M commitment that has not yet expired does not necessarily violate the doctrine, but a commitment that purports to extend indefinitely or for an extraordinarily long time is at risk.

The county-commission framework follows State ex rel. State Line Sparkler v. Teach (1992): commissions have only the powers expressly conferred or necessarily implied, with W. Va. Const. art. IX, § 11 as the constitutional source.

Citations and references

Statutes, regulations, and constitution:
- 16 U.S.C. § 1001 et seq. (Watershed Protection and Flood Prevention Act)
- 7 C.F.R. §§ 624.1, 624.2, 624.4(g), 624.6, 624.8(c) (EWP program)
- 7 C.F.R. §§ 654.2, 654.11(a), 654.14, 654.19, 654.40-41 (O&M agreement framework)
- W. Va. Const. art. IX, § 11

Cases:
- State ex rel. State Line Sparkler of WV, Ltd. v. Teach, 187 W. Va. 271, 418 S.E.2d 585 (1992)
- Pulsifer v. United States, 601 U.S. 124 (2024)
- Guido v. Guido, 222 W. Va. 528, 667 S.E.2d 867 (2008)
- Rogers v. City of South Charleston, 163 W. Va. 285, 256 S.E.2d 557 (1979)
- Barbor v. Cnty. Ct. of Mercer Cnty., 85 W. Va. 359, 101 S.E. 721 (1920)
- Bradford v. W. Va. Solid Waste Mgmt. Bd., 246 W. Va. 17, 866 S.E.2d 82 (2021)
- Town of Davis v. Filler, 47 W. Va. 413, 35 S.E. 6 (1900)

Source

• Landing page: not separately published (the PDF is the official record)
• Original PDF: https://ago.wv.gov/media/16931/download?inline

Original opinion text

Office of the Attorney General
State Capitol, Bldg. 1, Rm E-26
1900 Kanawha Blvd., E.
Charleston, WV 25305

John B. McCuskey
Attorney General

(304) 558-2021
Fax: (304) 558-0140
www.wvago.gov

March 3, 2025

The Honorable Savannah Hill Wilkins
Tucker County Prosecuting Attorney
Tucker County Courthouse Annex
211 First Street, Suite 207
Parsons, WV 26287
Dear Prosecutor Wilkins:
Your office has asked for an Opinion of the Attorney General about the ownership and
ongoing maintenance of a dike or diversion wall on property that is currently legally owned by
the City of Parsons. This Opinion is being issued under West Virginia Code § 5-3-2, which
provides that the Attorney General "may consult with and advise the several prosecuting
attorneys in matters relating to the official duties of their office." When this Opinion relies on
facts, it depends solely on the factual assertions in your correspondence with the Office of the
Attorney General.

You explain that the Tucker County Commission was a sponsor for several different
projects following a severe flood in 1985, including a dike that is currently owned by the City of
Parsons. With the Commission serving as a sponsor, the City contacted the U.S. Soil
Conservation Service, now known as the U.S. Natural Resources Conservation Service (NRCS),
to obtain funding for dike repairs through the Emergency Watershed Protection (EWP) program.
Most recently, the Commission served as a sponsor to secure additional funding in August 2014
to repair damage to the dike. Citing a federal regulation, the Prosecuting Attorney at that time
concluded that the County Commission was deemed the owner of the dike because the
Commission had served as the sponsor for the project. The dike is once again in need of repairs,
and the City of Parsons is insisting that the Tucker County Commission be responsible for these
repairs.

With these facts in mind, your letter raises the following questions:
1. Does the County Commission "own" the dike because of its
sponsorship assistance in funding?
2. What ongoing duty does the County Commission have for the
maintenance and repair of the dike?

We conclude that, under the facts you have described, the County Commission is not the
owner of the dike. We also conclude that the 1986 Tucker County Commission likely agreed to
be responsible for maintaining the dike for at least some time. But the terms and duration of that
maintenance are likely limited by agreement or by public policy.

Discussion

The U.S. Department of Agriculture administers several programs to help affected areas
recover from natural disasters. Relevant here, the Emergency Watershed Protection (EWP)
program offers financial and technical assistance to relieve imminent threats to life and property
caused by natural disasters that impair a watershed. You ask whether the county's involvement
in securing funds for the Parsons dike through the EWP program has obliged the county to
maintain and repair the dike indefinitely.

I. The County Commission Does Not Own the Dike.

First, the County Commission does not own the dike simply by serving as the project
sponsor.

All EWP projects must have a project sponsor, which can include any "local unit of
government ... with a legal interest in or responsibility for the values threatened by a watershed
emergency." 7 C.F.R. § 624.4(g). These project sponsors must be able to "obtain[] necessary
land rights" and "carry[] out any operation and maintenance responsibilities that may be
required." Id. But nothing in the relevant regulations requires the sponsor to own the project.
Indeed, the regulations contemplate the existence of both the project sponsor and the "landuser":
one who is the "owner" of the "land involved." Id. § 654.2 (defining "Landuser"). Likewise, the
regulations repeatedly refer to "landowners" and "sponsors" separately. See, e.g., id. §§ 624.2,
654.2. But in contrast, the Sponsor is there to "provide local responsibility for [the] ...
financially-assisted local project." Id. § 654.2; cf. id. § 624.4 (defining "project sponsor" as the
state government entity "with a legal interest in or responsibility for the values threatened by a
watershed emergency ... and is capable of ... maintain[ing]" it.). "In a given statute, the same
term usually has the same meaning and different terms usually have different meanings."
Pulsifer v. United States, 601 U.S. 124, 149 (2024).

In short, landusers (that is, owners) and sponsors play distinct roles. Because the
regulatory scheme contemplates a difference between the landowner and the project sponsor and
provides no direct language requiring project sponsors to own the land, the County Commission
did not become the Dike's owner by agreeing to sponsor its development.

II. The County Commission Was Likely Responsible for At Least Some Repairs and
Maintenance.

Second, the County Commission likely accepted responsibility in 1986 for the dike's
maintenance under an operation and maintenance agreement.

When the County Commission agreed to sponsor the dike, it did so under the regulations
provided by the Emergency Watershed Protection program and the program's administrator, the
Natural Resources Conservation Service. See 7 C.F.R. § 624.1 ("The Natural Resources
Conservation Service (NRCS) ... [is] responsible for administering the Emergency Watershed
Protection (EWP) Program."). These regulations discuss the need for a project sponsor to handle
the ongoing maintenance for federally funded projects, like the prior dike repairs. In particular,
"[s]ponsors must ... [a]gree to provide for any required operation and maintenance of the
completed emergency measures." Id. § 624.6(a)(2)(iii). "Typically, the word `must' is afforded
a mandatory connotation." Guido v. Guido, 222 W. Va. 528, 532, 667 S.E.2d 867, 871 (2008)
(cleaned up).

The details for the sponsor's operation and maintenance obligations are to be found in an
"operation and maintenance agreement" (O&M agreement). See 7 C.F.R. §§ 654.40-41; see also
id. § 624.8(c) ("Before the release of financial assistance, NRCS will enter into a Cooperative
Agreement with a sponsor that specifies the responsibilities of the sponsor under this part,
including any required operation and maintenance responsibilities."). When a sponsor applies
for funds for a particular project under the EWP program—as the County Commission did—the
State Conservationist "determine[s]" if an "O&M agreement is necessary." Id. § 654.40.
However, the State Conservationist does not have full discretion. An O&M agreement is
required if the EWP project "needs to be operated and maintained in order to serve its intended
purpose" or "to insure that [the project] will not become hazardous." Id. § 654.41(a)(1)-(2).

Given the 2014 repairs and current repair needs, it seems likely that the dike project
would have satisfied that definition and, thus, had an O&M agreement. After all, the dike's
original purpose was to "deflect[] the river flow"—a purpose that is plainly undermined by
breaches in the dike. See Letter from Bernard R. Lindstrom, Colonel, Corps of Eng'rs, to David
B. McKinley, W. Va. House Rep. (undated) (on file with Commission). And the project could
become hazardous if flood waters are allowed to flow unabated, as evidenced by the flooding in
1985.

The O&M agreement should have laid out the terms and duration of the County
Commission's maintenance duties for the dike. By regulation, the O&M agreement "shall
include" the sponsor's "known and anticipated" maintenance for the project, the sponsor's
"explanation of how the [maintenance] activities may be carried out," the sponsor's "general
time frame" for inspecting and maintaining the project, and how the sponsor will record and
report their obligations. 7 C.F.R. § 654.19.

In short, even though the County Commission doesn't own the dike, it may still be
responsible for the dike's ongoing maintenance because, in its role as project sponsor, it
"[a]gree[d] to provide for any required operation and maintenance of the completed emergency
measures." Id. § 624.6(a)(2)(iii); see also id. § 654.11(a) (providing that a sponsor is
"responsible for financing and performing ... needed operation and maintenance (O&M) of
project measures"); cf. id. § 624.6(b)(2)(ii) (providing that "EWP assistance will not be used to
perform operation or maintenance, such as the periodic work that is necessary to maintain the
efficiency and effectiveness of a measure to perform as originally designed and installed").

III. Lacking More Information, We Are Unable To Determine The Extent Of Any
Continuing Obligations Of The County To Maintain the Dike.

We have requested but have not received any record of an O&M agreement. Although
we have received a copy of a project agreement between the Soil Conservation Service and the
County Commission, the agreement does not include any provisions speaking specifically to
operation and maintenance.

The O&M agreement could not require the County Commission to maintain the dike
forever. After all, the regulation says an O&M agreement must define the "duration" of the
sponsor's maintenance. 7 C.F.R. § 654.14. The start date of that duration begins when the
project is completed and may "continue through (1) the evaluated life of the project"; "(2) the
evaluated life of measures that are economically evaluated as a unit"; or "(3) the useful life of
cost-shared measures that are for land conservation or land utilization." Id. In short, the O&M
agreement should have told the signing County Commission the duration of its dike maintenance
obligations. But lacking any copy of the agreement, we are unable to offer any opinion on its
limits.

Any ongoing duty of the County Commission to maintain the dike may face legal
challenges beyond the O&M agreement. As with all county commissions, the Tucker County
Commission is "created by statute, and possessed only of such powers as are expressly conferred
by the Constitution and legislature, together with such as are reasonably and necessarily implied
in the full and proper exercise of the powers so expressly given." Syl. pt. 1, State ex rel. State
Line Sparkler of WV, Ltd. v. Teach, 187 W. Va. 271, 418 S.E.2d 585 (1992); see generally W. VA
CONST. art. IX, § 11 ("Powers of county commissions").

Our Supreme Court has observed that it is against public policy for county commissions
to enter long-term commitments that tie the hands of future commissions. "[I]t is beyond the
power of the governing body of a municipality to tie the hands of future governing bodies in
exercising the full jurisdiction of their office by depriving them of a discretion which public
policy demands remain unimpaired." Rogers v. City of South Charleston, 163 W. Va. 285, 293,
256 S.E.2d 557, 562 (1979). So, for instance, the Court rejected a three-year employment
contract that would allow a county court the "power to extend through contracts the period of
their control long beyond the terms for which they were elected, and thus to deprive their
regularly elected successors of the important right to exercise some of the functions normally
incident to the office." Barbor v. Cnty. Ct. of Mercer Cnty., 85 W. Va. 359, 362, 101 S.E. 721,
722 (1920). These long-term contracts are "overrule[d]" by "[p]ublic policy" because they
"cramp the powers of the town, defeat the performance of some of its essential functions, and
[are] very hurtful to public interests." Bradford v. W. Va. Solid Waste Mgmt. Bd., 246 W. Va.
17, 25, 866 S.E.2d 82, 90 (2021) (quoting Town of Davis v. Filler, 47 W. Va. 413, 415, 35 S.E.
6, 7 (1900)).

Although there is relatively little West Virginia case law applying the public-policy
analysis, the key theme is protecting local governments' statutory "discretion." In cases like
Davis, Barbor, Rogers, and Bradford, the Court's refrain is that because a municipality is a
creation of statute, it may not act to limit a future municipality's statutorily granted discretion.
That's because letting a local government's governing body bind a future governing body's
discretion would, in fact, elevate the current body above its originating statute and de facto allow
it to amend a statutory grant of power.

We recognize that these standards do not provide a simple, timebound, brightline test
(e.g., no contracts over two years). Instead, the analysis requires a clear sense of what a local
government is statutorily entitled to do and what the current or past governing body has agreed
to. Because we do not have the O&M agreement, we cannot definitively complete that analysis.
Even so, it appears likely that the County Commission would have exceeded its powers if it tied
the hands of the current commission by somehow agreeing to maintain the dike forever.

Conclusion

The Tucker County Commission does not own the dike and likely does not have a duty to
maintain it. Without a copy of the possible O&M agreement though, it is impossible to answer
your second question (concerning the duration of these obligations) definitively.

Sincerely,

John B. McCuskey
Attorney General
Michael R. Williams
Solicitor General
Spencer J. Davenport
Frankie A. Dame
Assistant Solicitors General