Request By:
Mr. William G. McCaslin
Caldwell County Attorney
106 West Market Street
P.O. Box 603
Princeton, Kentucky 42445
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your primary question is whether or not the fiscal court of your county has the authority to issue a "ponding permit" to conservancy and soil conservation districts which would permit the flooding from time to time, at very infrequent times of heavy rains, of a certain portion of a county road.
Your letter, requesting our opinion, reads in part:
"The Donaldson Creek Watershed Conservancy District of Princeton, Caldwell County, Kentucky, is engaged in a project in Caldwell County for the construction of a flood retarding structure together with necessary work and easements in connection therewith. The Conservancy District in connection with the Caldwell County Soil Conservation District has asked the Fiscal Court of Caldwell County, Kentucky, for a 'Ponding Permit' which would permit the flooding from time to time, at very infrequent times of heavy rains, of a certain portion of a county road. History has shown that in the particular area of Caldwell County where this project is being undertaken that there would be temporary flooding of this particular county road, but there does exist an alternate route for property owners and the traveling public to use during such times of flooding, and this particular alternate route is paved and is a better road than the road which would be affected by the temporary flooding. The particular road affected is really not an all weather road and is not paved and at times during winter months would be impassable except with four wheel drive vehicles."
From the proposed ponding permit application, it is indicated that the purpose of the permit is for increasing the flowing time of water in West Fork of Donaldson Creek where it passes over the low water crossing of Flynn Ferry Road, which location has been and is now subject to flooding during heavy rains. It is understood that such increased flow at the time of heavy rains, resulting from the temporary storage or retention of run-off by the flood retarding structure designated as Site 1A in the watershed work plan for Donaldson Creek Watershed, Caldwell County, Kentucky, will cause the low water crossing to be unusable for an indeterminate length of time, normally not over seventy-two (72) hours, during and after periods of precipitation.
Clearly from the facts given, the construction of the flood retarding structure and its impact on the water flow across the county road area described has necessitated the application for a ponding permit to embrace the period calculated to cover the time during which the particular road segment will be flooded and unusable.
We must assume, in this total context, that the watershed conservancy district is, in constructing the flood retarding structure, under the known engineering and geological facts relating to the area topography and surface water and run-off patterns, acting within its powers of flood prevention and control pursuant to KRS 262.700, 262.745 and 262.778.
As we said in OAG 79-393, the fiscal court has exclusive authority over county roads, including the authority to construct, operate and maintain such roads in the public interest of the health, safety, welfare and convenience of the inhabitants of the county. See KRS 178.010, 67.080(2)(b) and 67.083(3)(t). See also Lampton v. Pinaire, Ky. App., 610 S.W.2d 915 (1981) 920.
Under KRS 262.745(2), the board of directors of a watershed conservancy district, subject to the approval of the board of supervisors, has the power to acquire by purchase, gift, grant, bequest, devise or 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.
It is our opinion that the board of directors of the watershed conservancy district may, under KRS 262.745 apply to the fiscal court of your county for the necessary easement or flowage right to cover this precise situation. Under the facts given and assumptions made above, the fiscal court has the authority to execute an instrument of easement or flowage right covering this situation, as applicable to specifically designated right of way of the subject county road.
In view of the authority and responsibility of the watershed conservancy district under KRS 262.745(2), such district would be required to acquire the easement or flowage right, or otherwise, necessary when private property holders' lands will be likewise flooded in the situation outlined above.
You next raise the question of any liability of the county, arising out of the granting of easement or flowage right.
The county, under any circumstances, has sovereign immunity, and no liability could attach to the county. Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967). As relates to the potential liability of the individual members of fiscal court, the ordinary rule is that a public officer when acting in good faith within the scope of his authority is not personally liable for damages sustained by a member of the public as a result of his action, unless he acted negligently, that is, failed to meet the standard of the ordinarily prudent man. Spillman v. Beauchamp, Ky., 362 S.W.2d 33 (1962) 36. See also the more recent cases of Hall v. Midwest Bottled Gas Distributors, Inc., Ky., 532 S.W.2d 449 (1976) 453; and Thompson v. Huecker, Ky. App., 559 S.W.2d 488 (1977) 494 and 495.