Does West Virginia law force a county commission to clean debris out of a creek or stream when a water utility or property owner asks them to?

Plain-English summary

A local public water association in Mineral County asked the county commission to clear debris from a waterway, pointing to W. Va. Code § 7-1-3u as the legal hook. The prosecutor's question for the AG was simple: does that statute create a legal duty, or just permission?

Attorney General Patrick Morrisey said permission. Section 7-1-3u tells county commissions they are "authorized" to rechannel and dredge streams, remove debris, control erosion, and finance the work. The opinion walked through dictionary definitions, parallel statutes that use the same "authorized/authorized" language for things the Legislature plainly did not intend to mandate (like running motor-vehicle racing events under § 7-1-3qq), and a related statute on local-improvement projects that puts the cost on requesting landowners, not the county.

The opinion also distinguished Cantley v. Lincoln County Commission, where the Supreme Court of Appeals had let a flood-related claim against a county commission proceed. That case turned on a separate contractual obligation the commission had taken on with the U.S. Army Corps of Engineers, not on a freestanding § 7-1-3u duty. The opinion read Cantley as compatible with treating § 7-1-3u as discretionary.

Bottom line at the time: the Mineral County Commission had the power to clean a local waterway if it chose to, but the statute did not let a water association compel it.

Currency note

This opinion was issued in 2020. 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

Q: What does W. Va. Code § 7-1-3u actually say?
A: It tells counties and municipalities they are "authorized to rechannel and dredge streams; remove accumulated debris, snags, sandbars, rocks and any other kinds of obstructions from streams; straighten stream channels; and carry out erosion and sedimentation control measures and programs," to protect people and property from floods. The statute also gives counties several ways to finance that work.

Q: Why did "authorized" mean optional, not required?
A: The AG cited Black's Law Dictionary defining "authority" as "official right or permission to act," and noted that "authorize" historically meant "a grant of authority rather than a command of its exercise." The opinion also pointed out that other county-power statutes use the same verbs for things the Legislature obviously did not intend to mandate, like running car races under § 7-1-3qq, or leasing county property to nonprofits under § 7-1-3k.

Q: Did the Cantley case create a duty?
A: Not really. Cantley v. Lincoln County Commission let plaintiffs proceed against a county over flooding, but the Supreme Court of Appeals based that ruling on a prior contractual sponsorship the county had signed with the Army Corps of Engineers, not on § 7-1-3u itself. The court explicitly said its opinion should not be read as deciding the underlying merits.

Q: What about the National Flood Insurance Act?
A: The opinion read W. Va. Code § 7-1-3v (the state authority for counties to comply with the federal flood insurance program) the same way as § 7-1-3u, as permissive. The federal program is voluntary anyway, and its requirements relate to building codes and zoning, not routine debris removal.

Q: What if the requesting party was a public service district instead of a private association?
A: Same answer. Public service districts are public corporations, but they are created by the county commission and do not have independent power to dictate the commission's spending priorities. They have their own bonding and rate-making authority and are expected to fund their own operations.

Background and statutory framework

The opinion grew out of a real-world dispute. A public water association near Mineral County wanted debris cleared from a waterway and pointed at § 7-1-3u to argue the county had to do it. The prosecutor punted to the AG via § 5-3-2.

Statutory construction did most of the work. The opinion combined three threads:

1. The dictionary meaning of "authority" and "authorize" connotes permission, not obligation.
2. The "identical-words" canon (Sullivan v. Stroop) said § 7-1-3u's verbs should mean the same thing they mean in § 7-1-3qq and § 7-1-3k, where mandatory readings would be absurd.
3. The contrast with § 7-1-3a, which lets abutting landowners request street and sidewalk improvements but expressly puts the cost on the requesting parties, suggested the Legislature does not silently impose pay-on-demand duties on counties.

On the constitutional side, art. 9, § 11 of the West Virginia Constitution gives county commissions general "superintendence and administration" over internal police and fiscal affairs. The opinion noted that this is a grant of authority, not a list of obligations to outside requesters.

The opinion also addressed federal law. Section 7-1-3v authorizes counties to comply with the National Flood Insurance Act of 1968, which the AG described as a voluntary program tied to building codes and zoning, not stream cleanup. None of this created a freestanding mandate to dredge.

Citations and references

West Virginia statutes:
- W. Va. Code § 7-1-3u (stream treatment authority)
- W. Va. Code § 5-3-2 (AG advice to prosecutors)
- W. Va. Code § 7-1-3a (street and sidewalk improvements)
- W. Va. Code § 7-1-3k (lease of county property)
- W. Va. Code § 7-1-3qq (motor-vehicle racing on county roads)
- W. Va. Code § 7-1-3t (funding water and sewer system improvements)
- W. Va. Code § 7-1-3v (compliance with National Flood Insurance Act)
- W. Va. Code §§ 16-13A-1b, 2, 3, 10, 13 (public service districts)

West Virginia constitution:
- W. Va. Const. art. 9, § 11

Federal statutes and regulations:
- 42 U.S.C. § 4001 (NFIP purpose)
- 42 U.S.C. § 4011 (NFIP establishment)
- 42 U.S.C. § 4022 (community eligibility)
- 44 C.F.R. §§ 59.22, 60.3, 60.4, 60.5 (floodplain management regulations)

Cases:
- Nicole L. v. Steven W., 241 W. Va. 466, 825 S.E.2d 794 (2019) (plain-meaning canon)
- Stauffer v. IRS, 939 F.3d 1 (1st Cir. 2019) (authority vs. duty)
- In re Whiteman's Will, 52 N.Y.S.2d 723 (App. Div. 1944) (meaning of "authorize")
- Sullivan v. Stroop, 496 U.S. 478 (1990) (identical-words canon)
- Cantley v. Lincoln County Commission, 221 W. Va. 468, 655 S.E.2d 490 (2007)
- Weyer v. Wood Cty. Comm'n, 2015 WL 6955137 (W. Va. Nov. 6, 2015) (memorandum decision)
- Carpenter v. Scherer-Mountain Ins. Agency, 733 N.E.2d 1196 (Ohio Ct. App. 1999)
- Larry v. Faircloth Realty, Inc. v. Berkeley Cty. Pub. Serv. Water Dist., 2010 WL 8942477 (W. Va. Cir. Ct. Berkeley Cty. Jan. 29, 2010)
- State ex rel. Allstate Ins. Co. v. Union Pub. Serv. Dist., 151 W. Va. 207, 151 S.E.2d 102 (1966)

Source

• Landing page: https://ago.wv.gov/media/17671/download?inline
• Original PDF: https://ago.wv.gov/media/17671/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
State Capitol Building 1, Room 26-E
Charleston, WV 25305-0220
Patrick Morrisey
Attorney General

(304) 558-2021
Fax (304) 558-0140

February 4, 2020

The Honorable F. Cody Pancake, III
Mineral County Prosecuting Attorney
P.O. Drawer 458
Keyser, WV 26726

Dear Prosecutor Pancake:

You have asked for an Opinion of the Attorney General addressing whether West Virginia Code § 7-1-3u requires county commissions to assume the responsibility or expense of removing debris from local waterways. This Opinion is being issued pursuant to 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." To the extent this Opinion relies on facts, it is based solely on the factual assertions in your correspondence with the Office of the Attorney General.

In your letter, you explain that a local public water association has asked the Mineral County Commission to remove debris from a local waterway. According to the association, West Virginia Code § 7-1-3u requires the Commission to assume responsibility for this role.

Your letter raises the following legal question:

To what extent does West Virginia Code § 7-1-3u impose a duty on county commissions to remove debris from local waterways and pay for that removal?

We conclude that the statute gives county commissions authority to clean local waterways, but does not require them to do so at an individual's or entity's request.

Discussion

West Virginia Code § 7-1-3u, titled "Authority of counties and municipalities to treat streams to prevent floods," provides:

To protect people and property from floods, counties and municipalities are hereby empowered to rechannel and dredge streams; remove accumulated debris, snags, sandbars, rocks and any other kinds of obstructions from streams; straighten stream channels; and carry out erosion and sedimentation control measures and programs.

The section further empowers county commissions to finance these endeavors through several means. Id.

The statute does not define "authority" or "empowered," which means that these terms "will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used." Nicole L. v. Steven W., 241 W. Va. 466, 471, 825 S.E.2d 794, 799 (2019) (citation omitted). The common and ordinary meanings of both words convey freedom to act, not a duty: "Authority" is defined as "official right or permission to act." Authority, Black's Law Dictionary 163 (11th ed. 2019); see also Stauffer v. IRS, 939 F.3d 1, 8 (1st Cir. 2019) ("[O]ne who acts with 'authority' has been bestowed with the power to perform an action on another's behalf. By contrast, a duty imposes an obligation to perform a certain act."). "Empower" similarly means "a grant of authority rather than a command of its exercise." Empower, Black's Law Dictionary 525 (6th ed. 1990 (last edition containing definition of "empower")); see also In re Whiteman's Will, 52 N.Y.S.2d 723, 725 (App. Div. 1944) ("As generally construed, the word 'empower' means a grant of authority rather than a command of its exercise." (citation omitted)).

Being "empowered" or having "authority" to act, therefore, means an entity has legal ability to act. The plain meaning of Section 7-1-3u is thus that a county commission may remove debris from waterways, but is not under a duty to do so at an individual's or entity's request.

The "normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning" confirms this reading. Sullivan v. Stroop, 496 U.S. 478, 484 (1990) (quotation omitted). Section 7-1-3qq, for example, "[a]uthoriz[es]" and "empower[s]" county commissions "to organize and hold motor vehicle racing events on roads and airports in this state." W. Va. Code § 7-1-3qq(a). Yet if "empowered" in Section 7-1-3u connotes a duty to act, then the same would likely be true a few sections later, making county commissions required to conduct racing events. Similarly, county commissions' "[a]uthority" to "lease, rent or to permit the use of county-owned buildings, lands and other properties or any portion thereof by nonprofit organizations" would be transformed into a mandatory duty. Id. § 7-1-3k. We are skeptical that the Legislature intended to create mandatory duties like these.

The plain-text reading is also supported by the Legislature's treatment of improvement and maintenance of streets, sidewalks, alleys, and lay sewers not in the state road system. See W. Va. Code § 7-1-3a. For these improvements, the statute expressly authorizes requests from "persons, firms or corporations owning not less than sixty percent of the frontage of the lots abutting on both sides of any street or alley, between any two cross-streets, or between a cross-street and an alley in any unincorporated community." Id. These requests are subject to statutory requirements and the county commission's blessing. But if the commission acts on the request, such "persons, firms or corporations" bear the cost, not the commission. Id. In fact, these landowners are required to pay even if the county commission votes to add additional improvements to the requested project to nearby streets, sidewalks, or sewers to satisfy problems such as drainage issues. Id. Viewed together with this provision, it is unlikely the Legislature would have imposed a special duty on county commissions to pay for the removal of debris from local waterways in response to an entity's unilateral request in Section 7-1-3u even though the statute is silent about cost allocation and the ability of an affected entity or individual to request the improvement in the first place.

Further, although the Supreme Court of Appeals has not spoken directly on this issue, the circuit court in Cantley v. Lincoln County Commission granted a motion to dismiss in a case brought by Lincoln County residents claiming failure of the Lincoln County Commission to abate future flooding of the Mud River. 221 W. Va. 468, 469, 655 S.E.2d 490, 491 (2007) (per curiam). The circuit court granted the Commission's motion to dismiss, in part, because it found that Section 7-1-3u did not impose an affirmative duty in this context. Id. at 470, 655 S.E.2d at 492. The Supreme Court of Appeals ultimately reversed that decision, but its analysis relied on a prior agreement in which the Commission consented to sponsor a U.S. Army Corps of Engineers' flood control project. See id. at 471, 655 S.E.2d at 493. The Court emphasized that its opinion should not be "construed to imply that [it] ruled upon the merits of any part of the complaint or issues in the case below." Id. at 471 n.6, 655 S.E.2d at 493 n.6. Thus, Cantley involved a contractual obligation that your letter does not indicate is present here, and it does not support interpreting Section 7-1-3u to include a mandatory duty to act.

Section 7-1-3u thus very likely does not require a county commission to pay for the removal of debris from local waterways at an entity's request. Neither are we aware of any other provisions that might impose a similar duty. Article 9, section 11 of the West Virginia Constitution gives county commissions the "superintendence and administration of the internal police and fiscal affairs of their counties, including the establishment and regulation of roads [and] ways." W. Va. Const. art. 9, § 11. This provision does not include, on its face, a mandatory duty to keep local waterways clean. We have also examined Section 7-1-3v, which authorizes county commissions to comply with the requirements of the National Flood Insurance Act of 1968 ("the Act"). See also Weyer v. Wood Cty. Comm'n, No. 14-1167, 2015 WL 6955137, at 4 (W. Va. Nov. 6, 2015) (memorandum decision). The residents in Cantley also proceeded under Section 7-1-3v in their complaint but, because the case was remanded on other grounds, the Court did not address the scope of this provision, either. See* 221 W. Va. at 471, 655 S.E.2d at 493. Nevertheless, the requirements of the Act and text of the state statute make it unlikely that a court would impose an affirmative duty on county commissions on these grounds.

The goal of the Act is to make flood insurance available to individuals at reasonable prices and to encourage state and local governments to regulate and restrict land development in floodplains. 42 U.S.C. § 4001(a), (e). The Act further establishes the National Flood Insurance Program, which is administered by the Federal Emergency Management Agency. Id. § 4011. State and local governments may participate in this program provided that "an appropriate public body shall have adopted adequate land use and control measures (with effective enforcement provisions) which the Administrator finds are consistent with the comprehensive criteria for land management and use under Section 4102 of this title." Id. § 4022(a)(1). Required land use and control measures include "floodplain management regulations," such as adequate permitting and inspection systems for proposed construction in floodplains and mudslide- and erosion-prone areas. See 44 C.F.R. §§ 59.22, 60.3, 60.4, 60.5; see also Carpenter v. Scherer-Mountain Ins. Agency, 733 N.E.2d 1196, 1208 (Ohio Ct. App. 1999). Section 4022 also provides incentives "in the form of credits on premium rates for flood insurance" if a community has "adopted and enforced measure[s] that reduce the risk of flood and erosion damage" above and beyond the statutory floor. Id. § 4022(b)(2). Notably, participation in the federal program is voluntary, so the federal statute cannot be read to require a state or local body to take any of these measures. In any event, the program requirements pertain to building codes and zoning, not the kind of cleaning or routine improvement projects at issue here.

Unsurprisingly, when the Legislature gave counties and municipalities authority to comply with the Act's requirements, it enumerated a set of powers that relates to building requirements and zoning. W. Va. Code § 7-1-3v(c) ("To the extent and only to the extent necessary to comply with the eligibility requirements" of the Act, county commissions may adopt, issue, and enforce "building codes" and "building permits," may "conduct inspections of construction and other improvements," and "otherwise take such action and impose such requirements regarding land use and control measures."). This Code section also uses the same permissive verbs from Section 7-1-3u, "authorized" and "empowered." Id. This means that, at most, Section 7-1-3v(c) could be interpreted as additional support for a county commission's authority to clean waterways if deemed "necessary under [the Act]." Id. But nothing in its text requires a commission to do so at a separate entity's or individual's unilateral request. Thus, read together with the Act, this section does not impose a duty on county commissions to act as requested here.

Finally, this analysis stands even where the party requesting removal of debris is a public service district, as opposed to a private entity or landowner. Although public service districts are considered to be public corporations, see W. Va. Code § 16-13A-2, they are created by county commissions, id. §§ 16-3A-1b, 2, and at least one circuit court has found "that public service districts are under the virtual, if not micro, control of the county commissions that establish them." Larry v. Faircloth Realty, Inc. v. Berkeley Cty. Pub. Serv. Water Dist., No. 09-C-826, 2010 WL 8942477 (W. Va. Cir. Ct. Berkeley Cty. Jan. 29, 2010). It would be an odd result for an entity created by and under the control of a county commission to be able to dictate its fiscal decisions. Indeed, none of the statutes discussing county commissions' duties to public service districts require commissions to fund their operations. County commissions are expressly authorized to devote county revenues to fund a public service district's efforts to establish or improve water and sewer systems. W. Va. Code § 7-1-3t. Again, however, authorization is not equivalent to creating a duty to fund requested cleanup projects. And public service districts have their own stream of revenue through bonds and the provision of their services to the public, and they create their own budgets to cover operating costs. See W. Va. Code §§ 16-13A-3, 16-13A-10, 16-13A-13; State ex rel. Allstate Ins. Co. v. Union Pub. Serv. Dist., 151 W. Va. 207, 220, 151 S.E.2d 102, 109-10 (1966) (compelling a public service district and members of the Public Service Board to establish, charge, and collect rates for services rendered by district sufficient to provide for all operational and maintenance expenses). The special relationship between county commissions and public service districts thus does not change the nature of a commission's duties in this area.

In sum, neither West Virginia Code § 7-1-3u nor other provisions of state or federal law requires the Mineral County Commission to assume responsibility of or pay for the removal of debris from a local waterway at the request of a public water association. The Commission has power to do so consistent with its enumerated authority and responsibility to act in the public interest, but this power is discretionary. It is not obligated to act or pay for improvement projects at the request of an interested entity or individual.

Sincerely,

Patrick Morrisey
Attorney General

Lindsay See
Solicitor General