After Senate Bill 941 made the West Virginia DEP the sole authority over conservation-district dams, what happens to existing federal Operation and Maintenance agreements, future federal contracts, and the districts' liability if dam work fails?

Plain-English summary

This is the AG's follow-up to the July 2025 dam-oversight opinion. Commissioner Leonhardt asked five questions about how Senate Bill 941's transfer of dam authority to DEP affects the practical operations of the state's 170 federally funded watershed dams and 22 channels. The structures were built decades ago under the federal Watershed Protection and Flood Prevention Act, with conservation districts serving as project sponsors and signing Operation and Maintenance (O&M) agreements with the U.S. Natural Resources Conservation Service (NRCS).

The AG's answers track a single principle: SB 941 reallocates oversight without canceling the underlying federal contracts.

1. Existing O&M agreements remain in effect. SB 941 changed who has to approve work, not the contracts themselves. Districts still owe their O&M duties to NRCS.
2. Sponsor work going forward needs DEP approval. Anything that constitutes an "alteration, improvement, or agreement" requires DEP sign-off, even when the work is required by an existing O&M.
3. Future federal contracts also go through DEP. A district cannot sign a new federal sponsorship deal touching a covered dam without DEP's approval.
4. Districts can still be liable. Section 19-21A-8(11) preserves the power to sue and be sued, and the AG noted that breach of O&M duties or negligent dam work could lead to either federal-government clawbacks (under 7 C.F.R. § 654.20) or tort claims (per In re Flood Litigation, 2004). Whether political-subdivision immunity under § 29-12A-5(10) defeats a particular claim is a fact question the AG could not answer in the abstract.
5. DEP cannot use its new authority to terminate federal funding. SB 941 includes a savings clause: nothing in the bill should be "construed to affect or alter any state or federal funding to the West Virginia Conservation Agency." The AG read that as a brake on DEP's discretion: ending the O&M relationship outright would risk federal funding clawbacks and so likely fall outside DEP's authority.

The opinion is a practical guide for districts, DEP, and NRCS state conservationists living with the new structure.

What this means for you

If you are a conservation district supervisor

Build a checklist with two columns: O&M activities your district has historically done, and which of those activities now require DEP approval. The AG defines "alteration, improvement, or agreement" broadly. Routine inspection and minor mowing may not trigger DEP review; physical repairs, dam-modification proposals, federal contract amendments, and any new O&M document almost certainly do. When in doubt, route to DEP before acting.

Do not assume that DEP's new authority lets you walk away from the federal O&M. Federal contracts still bind the district. Skipping required maintenance because DEP has not yet approved a fix could trigger NRCS reimbursement demands or third-party tort exposure. The right move is to flag inability to act to both DEP and NRCS in writing, so the failure is documented as a coordination problem, not a unilateral abandonment.

Pull copies of every O&M agreement your district has signed and store them centrally. The AG's opinion makes clear that contractual liability depends on the specific terms; district leadership cannot evaluate exposure without the documents in hand.

If you are at the Department of Environmental Protection

Your authority is broad but bounded. The savings clause in SB 941 prevents you from taking actions that would jeopardize state or federal funding. That practically means: you can shape, time, and condition repair work; you cannot terminate sponsorship in a way that triggers a federal clawback under 7 C.F.R. § 654.20.

A standing coordination policy with the State Conservation Committee and NRCS State Conservationist will reduce friction. Districts and federal counterparts need a clear intake process for proposed alterations and a turnaround commitment so urgent dam-safety work does not stall waiting for permission.

If you are an NRCS State Conservationist

Your investigation and enforcement authority under 7 C.F.R. § 654.20(a)-(b) is unchanged. If a sponsor's failure to perform O&M creates a hazard or jeopardizes the project's design function, your existing process applies: written notice, opportunity to cure, and if uncured, options that include reimbursement demand, withholding further assistance, and notifying authorities with appropriate jurisdiction. SB 941 added a new state-level decision-maker (DEP) but did not relieve sponsors of federal obligations.

In practice, you may want to copy DEP on sponsor notices going forward, so coordination starts at the federal-warning stage rather than at the cure-failure stage.

If you are a downstream landowner concerned about a watershed-dam structure

Your safety concerns can go to multiple offices. DEP under § 19-21A-8(1) and the Dam Control Act has direct safety authority. NRCS State Conservationist has a federal investigation process under 7 C.F.R. § 654.20. The conservation district remains the sponsor and may still be sued (§ 19-21A-8(11)) for damages caused by negligent O&M.

If you are a municipal attorney advising a county or city as a co-sponsor

The same SB 941 framework applies. Cities and counties that serve as project sponsors under federal watershed-protection programs (or as substitute sponsors when a district cannot continue) need DEP approval for alterations, improvements, and agreements going forward. Build that step into your contracting and budgeting workflow.

If you handle dam-safety engineering at a district or DEP

The professional engineering responsibility now sits with DEP under SB 941, and the legislative history of the bill (cited in the July 2025 AG opinion) emphasized DEP's professional engineering personnel as the rationale for consolidation. Document inspections and engineering opinions on a DEP-led record. Districts that retain engineering capacity should still produce work product, but route it to DEP for adoption rather than acting unilaterally.

Common questions

Q: Does SB 941 cancel my district's federal O&M agreement?
A: No. SB 941 does not touch the federal contracts themselves. The agreements remain in force; the district still owes the obligations they contain. SB 941 only changes who at the state level approves dam-related work going forward.

Q: What if DEP refuses to approve a needed repair and the dam fails?
A: This is a real coordination risk. The AG's opinion does not give districts a unilateral right to act, but it also reads SB 941's savings clause as preventing DEP from taking action that would put federal funding at risk. Document any disagreement in writing and copy NRCS so the issue is preserved.

Q: Can a district refuse to be a sponsor going forward?
A: Districts can decline new sponsorships, subject to the terms of any existing master agreements with NRCS. SB 941 makes future sponsor decisions go through DEP first, so the question is moot from the district's side: a sponsorship cannot be entered without DEP's blessing.

Q: What happens if a district fails to perform O&M and an inundation occurs?
A: Multiple liabilities are possible. The federal NRCS can demand reimbursement of past financial assistance under 7 C.F.R. § 654.20(b). Third-party plaintiffs can sue for negligence under In re Flood Litigation (W. Va. 2004) principles. Whether political-subdivision immunity under W. Va. Code § 29-12A-5(10) applies turns on the specific theory of negligence and the type of failure, and the AG declined to opine in the abstract.

Q: Does the savings clause in SB 941 mean DEP cannot act at all?
A: No. DEP can do what it needs to do for dam safety. The savings clause limits actions that would specifically affect or alter state or federal funding to the West Virginia Conservation Agency. Most dam-safety actions do not jeopardize funding and so are within DEP's authority.

Q: What does "alteration, improvement, or agreement" mean in practice?
A: The AG read these terms broadly. "Alteration" and "improvement" cover physical changes to the dam. "Agreement" covers contracts touching the dam, including O&M amendments, sponsor changes, and new federal sponsorship contracts. Routine cleaning or inspection that does not change the dam's structure or its contractual posture probably does not require DEP approval, but the line is fact-specific.

Q: Are there other West Virginia immunities that might protect a district?
A: The AG flagged § 29-12A-5(10), which provides immunity for losses arising from inspection-related functions. That immunity is fact-dependent; it is not a blanket shield. Districts and their counsel should check the West Virginia Governmental Tort Claims and Insurance Reform Act in detail when a specific claim is filed.

Background and statutory framework

The West Virginia conservation district program runs through W. Va. Code §§ 19-21A-1 et seq. Districts are state subdivisions (§ 19-21A-3(5)) charged with soil-health and water-quality work (§ 19-21A-2(d)). Their general powers, including engineering operations and floodwater prevention, sit at § 19-21A-8(3). Under Fairmont State (W. Va. 2019), districts are creatures of statute and must find statutory warrant for any authority they claim.

The federal context comes from the Watershed Protection and Flood Prevention Act, 16 U.S.C. §§ 1001 et seq. Section 1003(a)(4) authorizes the U.S. Secretary of Agriculture, through NRCS, to provide financial and technical assistance to local organizations. Sponsors must execute O&M agreements before assistance is released (7 C.F.R. § 654.10). The agreements are "legally binding contracts" (USDA National Operation and Maintenance Manual, Part 500.21), and they require sponsors to finance and perform O&M without cost to the federal government (7 C.F.R. § 654.11(a)) and to comply with all applicable federal, state, and local laws (7 C.F.R. § 654.15(a)). The duration of sponsor responsibility is set by the agreement and tracks the project's evaluated life or useful life (7 C.F.R. § 654.14(a)).

The federal enforcement framework lives at 7 C.F.R. § 654.20. The State Conservationist investigates alleged sponsor violations, issues written notice, and if cure does not happen, can demand reimbursement, withhold further assistance, notify authorities with appropriate jurisdiction, or "pursue other action authorized by the O&M agreement or law."

Senate Bill 941 added the state-level overlay. The bill amended W. Va. Code § 19-21A-8(1) to provide that "any alteration, improvement, or agreement related to a dam owned or sponsored by a local conservation district is subject solely to the authority of the Department of Environmental Protection." It included a savings clause: nothing in the proviso "be[s] construed to affect or alter any state or federal funding to the West Virginia Conservation Agency." The AG's July 2025 opinion read "any" and "solely" expansively; this opinion applies that reading to the federal-contract context.

The tort exposure piece sits on three pillars. Section 19-21A-8(11) preserves the district's power to sue and be sued. In re Flood Litigation (2004) sets the negligence framework: liability attaches to a wrongdoer when a breach of duty causes injury, with reasonableness as a fact-specific jury question. Section 29-12A-5(10) provides immunity for losses arising from inspection-related powers and functions, but the contours of that immunity are fact-dependent. The AG declined to predict outcomes without facts.

Citations and references

Statutes and regulations:
- W. Va. Code § 19-21A-8(1) (Dam authority proviso added by SB 941)
- W. Va. Code §§ 19-21A-2, -3, -8(3), -8(11) (Conservation district structure and powers)
- W. Va. Code § 29-12A-5(10) (Political-subdivision inspection-related immunity)
- 16 U.S.C. § 1001 et seq. (Watershed Protection and Flood Prevention Act)
- 7 C.F.R. §§ 654.10, 654.11, 654.14, 654.15, 654.20 (NRCS O&M and enforcement framework)
- USDA NOMM, Part 500.20-500.21
- Senate Bill 941, 87th W. Va. Leg. (2025)

Cases:
- Div. of Just. & Cmty. Servs. v. Fairmont State Univ., 242 W. Va. 489, 836 S.E.2d 456 (2019)
- In re Flood Litigation, 216 W. Va. 534, 607 S.E.2d 863 (2004)

Related opinion:
- W. Va. Op. Att'y Gen., Letter Regarding Oversight of Dams Owned or Sponsored by Conservation Districts (July 10, 2025), 2025 WL 2050201

Source

• Landing page: not separately published (the PDF is the official record)
• Original PDF: https://ago.wv.gov/media/37572/download?inline

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

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

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

August 21, 2025

The Honorable Kent A. Leonhardt
Commissioner of Agriculture
Chairman, West Virginia State Conservation Committee
1900 Kanawha Blvd. E, Bldg. 1, Rm 28E
Charleston, WV 25305

Dear Commissioner Leonhardt:

Your office has asked for an Opinion of the Attorney General about the effects of Senate
Bill 941, enacted during the 2025 Regular Legislative Session, on the powers, duties, and liabilities
of conservation district supervisors. We are issuing this opinion under West Virginia Code § 5-3-1, which provides that the Attorney General "shall give written opinions and advice on questions
of law ... whenever required to do so, in writing, by ... the commissioner of agriculture." When
this Opinion relies on facts, it depends solely on the factual assertions in your correspondence with
our office.

According to your letter, since the 1930s, Congress has charged the U.S. Department of
Agriculture with developing plans to reduce flooding in selected watersheds. As part of that work,
Congress gave the Natural Resources Conservation Service (NRCS) the authority to begin building
small watershed flood control dams and channels across the United States. NRCS requires
sponsors of these to be a city, county or state agency, a conservation district, or tribal government.

In West Virginia, conservation district supervisors sponsor 170 such flood control dam
structures and 22 channels within their respective districts. Each time one of these projects was
begun, NRCS and the local conservation districts agreed to an Operation and Maintenance
("O&M") plan before construction started. These agreements require the parties to ensure the
structures will continue to operate as designed. And under these agreements, project sponsors (like
conservation district supervisors) are typically responsible for routine operation and maintenance,
repairs, or rehabilitation.

During the 2025 Regular Session, the Legislature passed—and the Governor signed—
Senate Bill 941. This bill "clarifi[ed] certain authority regarding dams owned or sponsored by
local conservation districts; provid[ed] that any alteration, improvement, or agreement related to a
dam owned or sponsored by a local conservation district is subject solely to the authority of the
Department of Environmental Protection; and provid[ed] that the[se] provisions ... [were] not [to]
be construed to affect or alter any state or federal funding to the West Virginia Conservation
Agency." S.B. 941, 87th Leg. Reg. Sess. (W. Va. 2025).

With these facts in mind, your letter raises the following questions:

1. What effect, if any, does SB941 have on the O&M Agreements that the
   conservation district supervisors are currently party to as sponsors?
2. What is the scope of the conservation districts' role as sponsors in existing and
   future sponsorship of projects that involve contracting for construction, repair,
   or rehabilitation of the dams?
3. Will the O&M Agreements currently in force with the NRCS remain in effect?
4. What liability, if any, do conservation districts risk in their capacity as sponsors
   if they cannot fulfill their obligations under existing and future contracts and
   agreements?
5. Will conservation districts continue to be liable if work performed pursuant to
   their contracts and agreements causes dams to fail?

We conclude that Senate Bill 941 grants sole authority over alterations, improvements, and
agreements related to dams to the Department of Environmental Protection. Thus, conservation
district supervisors are now required to obtain DEP's approval before performing work
constituting an "alteration, improvement, or agreement," even when tied to existing O&M
agreements. Likewise, DEP approval is required before a conservation district may enter any
future contract with the federal government for construction, repair, or rehabilitation of dams.
Current O&M agreements with the NRCS remain in effect, but—again—dam-related work
constituting "construction" or "alteration" requires DEP approval. Conservation districts that are
party to contracts with NRCS are potentially liable if they fail to fulfill their obligations, but
contractual liability depends on contractual terms. Conservation districts may have liability if
work performed pursuant to their contracts and agreements causes dams to fail.

Discussion

Conservation districts are created by statute, W. VA. CODE § 19-21A-1, et seq., to "work
to recommend and implement programs and policies that improve soil health and water quality,"
W. VA. CODE § 19-21A-2(d). They are "subdivision[s] of th[e] state." Id. § 19-21A-3(5). And
they are "creatures of statute." Div. of Just. & Cmty. Servs. v. Fairmont State Univ., 242 W. Va.
489, 498, 836 S.E.2d 456, 465 (2019) (cleaned up). As "delegates of the Legislature," conservation
districts "must find within the statute warrant for the exercise of any authority which they claim."
Id. As relevant here, conservation districts "carry out preventive and control measures and works
of improvement within" their respective districts, including "engineering operations" and "water
management operations and measures for the prevention of floodwater and sediment damages[.]"
W. VA. CODE § 19-21A-8(3).

Effective April 2025, Senate Bill 941 amended conservation districts' powers related to
dams. S.B. 941 provides that "any alteration, improvement, or agreement related to a dam owned
or sponsored by a local conservation district is subject solely to the authority of the Department of
Environmental Protection." W. VA. CODE § 19-21A-8(1). S.B. 941 is not to "be construed to
affect or alter any state or federal funding to the West Virginia Conservation Agency." Id.

As we explained in a prior Opinion Letter, S.B. 941 is intended to provide DEP with broad
authority over all dam-related alterations, improvements, or agreements. See W. Va. Op. Att'y
Gen., Opinion Letter Regarding Oversight of Dams Owned or Sponsored by Conservation
Districts (July 10, 2025), 2025 WL 2050201, at *2. And "by saying the Department of
Environmental Protection was 'solely' responsible, [S.B. 941] left no room for anyone else to
act—conservation districts included—unless the Department chooses to coordinate or otherwise
allow such a role." Id. DEP's role is limited only where it would "affect" or "alter" federal
funding.

Thus, the Department's permission or coordination is generally necessary for all dam-related work that constitutes an "alteration," "improvement," or "agreement," even where that
work implicates federal agreements.

The federal agreements to which your letter refers stem from the federal Watershed
Protection and Flood Prevention Act, which created a federal-state program for the purpose of
"preserving, protecting, and improving the Nation's land and water resources and the quality of
the environment." 16 U.S.C. § 1001. To carry out that purpose, the U.S. Secretary of Agriculture
may "furnish financial and other assistance to local organizations," like West Virginia's
conservation districts. Id. § 1003(a)(4). As part of this financial assistance, project "sponsors"
must sign Operation and Maintenance (O&M) agreements with NRCS. See USDA National
Operation & Maintenance Manual (NOMM), Part 500, available at https://tinyurl.com/y68bt3pd;
see also NOMM, Part 500.20(B); 7 C.F.R. § 654.10 ("A duly authorized official of the sponsor(s)
must execute an O&M agreement with NRCS prior to NRCS furnishing financial assistance.").

Among other things, these agreements—alongside federal regulations—require that
project sponsors on non-federal land "are responsible for financing and performing without cost
to the Federal Government, needed operation and maintenance (O&M) of project measures
installed with Federal financial assistance." 7 C.F.R. § 654.11(a); see also NOMM, Part 500.21
(O&M agreements require disclosure of "[t]he sponsor(s) who will be responsible for inspecting,
performing, and financing the O&M" for each project). Sponsors are required to "operate and
maintain completed project measures in ... [c]ompliance with applicable Federal, State, and local
laws, regulations, and ordinances." 7 C.F.R. § 654.15(a). O&M agreements are "legally binding
contract[s]." NOMM, Part 500.21.

Senate Bill 941 doesn't alter the terms of existing O&M agreements between conservation
districts and the federal government. And while conservation districts' dam-related "alteration"
or "improvement" work is subject to DEP approval, that new proviso doesn't end the conservation
districts' O&M obligations. Rather, it requires DEP approval before conservation districts perform
work on dams. That new allocation of oversight doesn't necessarily mean that DEP will take over
all work under existing agreements. Nor does it require DEP to serve as the sponsor on all future
agreements. But S.B. 941 gives DEP the sole authority to decide the roles and responsibilities of
covered decisions pertaining to West Virginia dams.

We caution, however, that DEP would not appear to have authority to terminate or
otherwise endanger the O&M agreement, its new authority notwithstanding. Recall that S.B. 941
should not be "construed to affect or alter any state or federal funding to the West Virginia
Conservation Agency." W. VA. CODE § 19-21A-8(1). Early termination of O&M agreements
could indeed affect that funding. Sponsors take "responsibility for O&M of" completed projects.
7 C.F.R. § 654.14(a). The O&M agreements say how long that responsibility lasts: It may
continue through "(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." Id. And during and after the O&M responsibility timeframes,
sponsors must "operate and maintain completed project measures in ... compliance with applicable
Federal, State, and local laws, regulations, and ordinances." Id. § 654.15(a).

Non-compliance with O&M responsibility may lead the federal government to demand
"reimbursement of all financial assistance provided by NRCS." NOMM, Part 500.21.
Alternatively, NRCS may "notify authorities having appropriate jurisdiction, withhold further
assistance to the project, require the sponsor(s) to reimburse the government for the NRCS share
of the cost of the project, and/or pursue other action authorized by the O&M agreement or law."
7 C.F.R. § 654.20(b).

In short, if a conservation district is a sponsor and it fails to comply with an existing O&M
agreement (whether at DEP's behest or otherwise), and the federal government identifies that
failure, then the federal government may hold conservation districts responsible in any of those
ways or in any way described in the O&M agreement. But without a specific contract to review,
we cannot identify all the potential forms of liability that conservation districts may face for non-compliance with a contract's terms.

Lastly, conservation districts could continue to be held liable if work performed on a
covered dam goes awry. Conservation districts have the power "[t]o sue and be sued." W. VA.
CODE § 19-21A-8(11). Senate Bill 941 doesn't change that. And "[i]n matters of negligence," for
instance, "liability attaches to a wrongdoer ... because of a breach of duty which results in an
injury to others." Syl. Pt. 3, In re Flood Litigation, 216 W. Va. 534, 607 S.E.2d 863 (2004).
"[R]easonable measures" are required when "due care" is owed. Id. at 548, 607 S.E.2d at 877
(cleaned up). But the "question of reasonableness" is a "fact-specific inquiry demanded of a jury."
Id. at 542, 607 S.E.2d at 871.

These general principles suggest that conservation districts may be held liable if their work
causes dams to fail. That said, we can't speculate on the outcome of any fact-specific inquiry
because we lack any facts to do so. And we also lack facts necessary to determine if any
immunities that generally apply to political subdivisions would defeat liability. See, e.g., W. VA.
CODE § 29-12A-5(10) (providing for immunity from liability arising from "[i]nspection powers or
functions, including failure to make an inspection, or making an inadequate inspection, of any
property, real or personal, to determine whether the property complies with or violates any law or
contains a hazard to health or safety"). Finally, we see nothing in S.B. 941 or any other law that
would foreclose a potential indemnity claim by the conservation district.

Conclusion

We conclude that Senate Bill 941 grants sole authority over alterations, improvements, and
agreements related to dams to the Department of Environmental Protection. So, conservation
district supervisors are now required to obtain DEP approval of work to be performed under
existing O&M agreements, at least where that work constitutes an "alteration," "improvement," or
"agreement."

In future contracts with the federal government for construction, repair, or rehabilitation of
dams, DEP approval is required before a conservation district may enter a contract. Current O&M
agreements with the NRCS remain in effect, but dam-related work in one of the above categories
requires DEP approval. Conservation districts that are party to contracts with NRCS are
potentially liable to the federal government if they fail to fulfill their obligations, but the full scope
of potential liability depends on contractual terms. Conservation districts may also be liable to
third parties if they perform work that causes dams to fail.

Sincerely,

John B. McCuskey
Attorney General
Caleb B. David
Deputy Solicitor General