Request By:
Honorable Robert M. Kirtley
Daviess County Attorney
Courthouse
Owensboro, Kentucky 42301
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of January 30 in which you raise the question as to whether or not the city of Owensboro and the Daviess County Fiscal Court can form a joint drainage commission. You enclose a copy of a directive making this request.
You further relate that your research of Chapters 267 through 269 KRS pertaining to the Drainage and Reclamation Act of 1912 and 1916 do not appear to permit the establishment of a joint commission since they relate solely to drainage in county areas.
After reviewing the referred to chapters of the statutes, we agree with your conclusion that they do not authorize the establishment of a joint drainage commission between the city and the county. However, we are inclined to believe that such a commission can be established possibly under the Interlocal Cooperation Act, KRS 65.210 to 65.300. This act authorizes cities and counties to enter into a contractual agreement to jointly exercise any power that each can exercise alone.
In your situation we believe that the city and county are really dealing with a flood control problem which is indicated by the directive you have enclosed. Ch. 104 KRS deals with flood control systems and particularly the power of cities to establish such a system. There is some indication in this chapter that counties may establish such a system though this is not clear in spite of the fact that counties are given the power of condemnation for flood control purposes. See KRS 104.010 and 104.170. The county nevertheless has the basic authority to provide for flood control under its general powers, namely KRS 67.083 (3) (i). This would mean that both the city and county can enact measures to control flooding problems which, in turn, means that they can jointly participate in such a program under the interlocal act. This act, as you will find, requires the establishment of an agency to operate the joint endeavor. Any interlocal agreement must be initially approved by the Attorney General as the act requires.