Request By:
John W. McNeill, III, Esq.
217 Wall Street
Maysville, Kentucky 41056
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions concerning a watershed conservancy district organized and functioning pursuant to KRS 262.700 et seq. The district now finds itself in the position of having to condemn certain lands for the implementation of a flood water protection project. KRS 262.745(2) provides in part that subject to the approval of the board of supervisors of the soil conservation district, the board of directors of a watershed conservancy district shall have the power to acquire through condemnation proceedings in the manner provided in the Eminent Domain Act of Kentucky, the fee simple title or any lesser interest in land, including easements and flowage rights as are necessary for the exercise of any authorized function of the district.
You refer to the Eminent Domain Act of Kentucky (KRS 416.540 to 416.670), specifically KRS 416.560(1), (2), (3), relating to the initiation of condemnation proceedings. Those provisions state as follows:
(1) Notwithstanding any other provision of the law, a department, instrumentality or agency of city, county or urban-county government having a right of eminent domain under other statutes shall exercise such right only by requesting the governing body of the city, county or urban-county to institute condemnation proceedings on its behalf. If the governing body of the city, county or urban-county agrees, it shall institute such proceedings under KRS 416.570, and all costs involved in the condemnation shall be borne by the department, instrumentality or agency requesting the condemnation.
(2) If any department, instrumentality or agency of a city, county or urban-county government operates in more than one governmental unit, it shall request the governing body of the city, county or urban-county government wherein the largest part of the individual tract of the property sought to be condemned lies, to institute condemnation proceedings on its behalf.
(3) A department, instrumentality or agency of the commonwealth of Kentucky, other than the department of transportation, having a right of eminent domain under other statutes shall exercise such right only by requesting the executive department for finance and administration to institute condemnation proceedings on its behalf. If the executive department for finance and administration agrees, it shall institute such proceedings under KRS 416.570, and all costs involved in the condemnation shall be borne by the department, instrumentality or agency requesting the condemnation. "
Your specific questions to this office are as follows:
"(1) May the watershed conservancy district initiate condemnation proceedings in its own name without consulting or involving the fiscal court or state agency?
(2) If it is necessary to involve either of those entities, which one of them is the appropriate agency?
(3) Does the district have any lawful means of compelling the appropriate agency, assuming the applicability of KRS 416.560, to expeditiously initiate the proceedings?"
KRS 262.700 states that subdistricts of a soil conservation district may be formed in a watershed area, to be known as watershed conservancy districts, for the purpose of developing and executing plans and programs relating to any phase of conservation of water, water usage, flood prevention, flood control, erosion prevention and control of erosion, floodwater and sediment damages. As a subdistrict of a soil conservation district, a watershed conservancy district shall constitute a governmental subdivision of the state and a public body corporate and politic exercising public power. The constitutionality of KRS 262.700 et seq. was upheld in Forrester v. Terry, Ky., 357 S.W.2d 308 (1962).
An elected board of directors, under the supervision of the board of supervisors of the soil conservation district, constitutes the governing body of the watershed conservancy district. KRS 262.740. Subject to the approval of the board of supervisors, the board of directors of a watershed conservancy district shall have the power to levy an annual tax on the real property in the district; acquire by purchase, gift, grant, bequest, devise, or through condemnation proceedings, the fee simple title or any lesser interest in land as are necessary for the exercise of any authorized function of the district; construct, improve, operate and maintain such structures as may be necessary for the performance of an authorized function; borrow money and issue, negotiate and sell bonds. See KRS 262.745. The board of directors is required to prepare an itemized budget (KRS 262.760) and the accounts of the watershed conservancy district must be audited annually (KRS 262.763).
In OAG 79-133, copy enclosed, we dealt with whether a riverport authority established pursuant to KRS 65.520 et seq. is a department, agency or instrumentality of the governing bodies that created it so that under KRS 416.560(1) the riverport authority must get the consent of such governmental units and request such governmental units to institute condemnation proceedings. It was noted that a riverport authority is a public or governmental agency or corporation with specifically assigned duties and powers relating to a clearly defined public purpose. It may sue and be sued, contract and be contracted with and do all things reasonable or necessary to effectively carry out its powers and duties. It is autonomous in nature with the power to issue revenue bonds and borrow money. At page three of OAG 79-133, we said:
"Although the Port can levy no tax, it is a separate entity acting for its own purposes and possessing defined, though limited powers of government. Under the doctrine of associated words the words 'instrumentality' appearing in KRS 416.560(1) must be of the same kind as that suggested in the categories 'department' and 'agency.' Carson & Co. v. Shelton, 128 Ky. 248, 107 S.W. 793 (1908). All these words, 'department,' 'instrumentality' or 'agency,' are presumed, because of the contextual word association, to be of the same class.
When considering the specific powers of contract, borrowing and financing and other powers of the Port, and the autonomy of the Port, it is our opinion that the Port is not a department, instrumentality or agency of the county and cities in the narrow sense envisioned by KRS 416.560(1). . . ."
In conclusion, it is our opinion that a watershed conservancy district, existing pursuant to KRS 262.700 et seq., with its defined though limited powers of government, including the authority to tax, borrow money, issue bonds, purchase land and construct necessary structures, is a separate entity and not a department, instrumentality or agency of a city or county or of the Commonwealth in the sense contemplated by KRS 416.560(1),(2) and (3). A watershed conservancy district may, therefore, initiate condemnation proceedings on its own behalf, since KRS 416.560(1),(2) and (3) have no application, assuming, of course, that the watershed conservancy district has received prior approval from the board of supervisors of the soil conservation district pursuant to KRS 262.745.