February 9, 2006

ATTORNEY GENERAL OPINION NO. 2006- 6

Tracy Streeter, Director

Kansas Water Office

901 S. Kansas Ave.

Topeka, Kansas 66612

Re:	Drainage and Levees--Watershed Districts; General Powers and Duties of District--Corporate Powers and Duties; Power to Levy Taxes and Assessments, Issue Bonds and Incur Indebtedness; Limits

Synopsis:	K.S.A. 24-1201 et seq. contain several statutes authorizing a watershed district to tax or assess property located within the district in order to pay for certain costs. These costs may include expenses incurred for dam maintenance, improvements to existing dams, or building new dams within the district. The correct procedures to be followed depend upon the statutory authority being utilized to make such assessments. However, property that lies outside the district is not subject to the taxing or assessment authority of a watershed district board, even if such property eventually benefits from a watershed district project. Cited herein: K.S.A. 24-1201; 24 -1209; 24-1214; 24-1219.

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Dear Mr. Streeter:

On behalf of the Kansas Water Office, you request our opinion on the statutory authority of watershed districts to assess property that benefits from projects such as a new dam or repairs or upgrades to existing dams. You note that K.S.A. 24-1201 et seq. authorize the creation of watershed districts for the purpose of controlling floods and gives these districts the authority to construct, operate and maintain the improvements needed to carry out that purpose. You indicate that there are currently eighty-six organized watershed districts in Kansas, covering approximately twenty-two percent of the state. Based upon a recently conducted study of dams in the state, it appears that dam modification and upgrades will soon be necessary in order to avoid flooding downstream. In addition, there will be a resulting increase in inspections of the upgraded dams. Such upgrades and increased inspections are projected to be expensive.

The watershed districts are attempting to determine how they may pay for such costs, and specifically wish to know if they may levy assessments to help pay for such expenses. Thus, you ask whether K.S.A. 24-2719 or other authority allows watershed districts to assess those properties that lie within the district. You also ask if such assessments may be made against property not within the district but within the "zone of innundation." You phrase the question as follows:

"May a watershed district levy an assessment against property owners whose property lies within the watershed district and within the breach of innundation zone below a dam, for costs associated with required dam modifications and more frequent dam inspections resulting from an increase in the hazzard class of the dam?"1

A watershed district can levy taxes only as authorized by statute.2 "Municipal corporations have only such powers as are expressly conferred by statute without resort to implication. Moreover, the operation of the tax statutes will not be enlarged so as to include matters not specifically embraced."3 Thus, there must be a specific statute authorizing a watershed district to raise funds in the anticipated manner and for the intended use.

K.S.A. 24-1209 authorizes a watershed district to levy taxes and make assessments:

"Each watershed district incorporated under the provisions of this act shall be a body politic and corporate and shall have the power:

. . . .

"Ninth. To levy taxes and assessments, issue bonds and incur indebtedness within the limitations prescribed by this act."4

K.S.A. 24-1219 sets forth the taxing authority granted to watershed districts:

"(a) The district board may issue no-fund warrants to pay for initial organizational, engineering, legal and administrative expenses of the district except that the amount so issued shall not exceed the product of two mills times the assessed valuation of the taxable tangible property within the district. Such warrants shall be issued, bear interest and be retired in accordance with the provisions of K.S.A. 79-2940, and amendments thereto, except that the approval of the state board of tax appeals shall not be required. Whenever warrants have been issued under this section, the board shall make a tax levy at the first tax levying period, after such warrants are issued, sufficient to pay such warrants and interest.

"(b) Following incorporation of the district by the secretary of state, the board shall have authority to levy annually a tax of not to exceed two mills to create a general fund for the payment of engineering, legal, clerical, land and interests in land, installation maintenance, operation and other administrative expenses and such tax may be against all of the taxable, tangible property of the district. Whenever the board desires to increase the mill levy for such purposes above two mills, it may adopt a resolution declaring it necessary to increase such annual levy in an amount which together with the current levy shall not exceed a total of four mills. . . .

"(c) There is hereby authorized to be established in the watershed districts of the state a fund which shall be called the structure maintenance fund. The fund shall consist of moneys deposited therein from funds received according to provisions of the watershed district law. The amount of funds that may be deposited annually shall be a maximum of .35% of the construction cost of the structure. Moneys in the structure maintenance fund may be used for the purpose of engineering, reconstruction and other required maintenance and other expenses relating to the maintenance of a structure. The watershed board of directors is hereby authorized to invest any portion of the structure maintenance fund, which is not currently needed, in investments authorized by K.S.A. 12-1675 and amendments thereto. All interest received on any such investment shall be credited to the structure maintenance fund.

"(d) The district board shall have authority to levy a tax, after improvement bonds have been issued in accordance with K.S.A. 24-1214, 24-1215 and 24-1220, and amendments thereto, sufficient to pay such bonds and interest."5

K.S.A. 24-1214 also provides a watershed district with taxing and assessment powers:

"Subject to the provisions of subsection (b) of K.S.A. 24-1203a, when the general plan is approved by the chief engineer the board, by resolution, shall propose that the cost to the district of all works contemplated in the plan be paid either by a general levy against all of the taxable tangible property located within the district, that such cost be paid by special assessment against lands within the district to be specially benefitted by any of the proposed projects or that such cost be paid by both such general levy and special assessment, stating the portion proposed to be paid by each method. The board shall also set forth in the resolution any proposal to issue improvement bonds of the district to provide for the payment of all or any part of the cost to the district of proposed projects by installments instead of levying the entire tax or special assessment at one time."6

In the 1968 Barten case, the Kansas Supreme Court examined K.S.A. 24-1209 and 24-
1219 authority. In the case the impacted landowners sought to enjoin a watershed district from using a proposed method of financing the improvement and, in the alternative, for mandamus to force holding an election on such method of financing.7 The Kansas Supreme Court held that a watershed district's method of financing using a general levy of taxes upon property within the district, which was not to exceed two mills, was valid and within the powers of the district.8 However, the Court held that the procedures requiring an election on the issue applied. The Barten Court also examined the issue of how to coordinate the various funding statutes in K.S.A. 24-1201 et seq.9 and provides a helpful history of how such statutes were amended over the years:

"The provisions in K.S.A. 24-1214 pertaining to the method of financing the cost of all works contemplated in the General Plan were shifted from K.S.A. 24-1216. (See, G.S.1959 Supp. 24-1216.) Language in G.S.1959 Supp. 24-1216, prior to the 1961 amendment, which made reference to financing 'the specific project,' was deleted in the 1961 amendment. The 1961 amendment added the second and third paragraphs to K.S.A. 24-1219. The first sentence in G.S.1959 Supp. 24-1219, reading, 'The district board shall have authority to levy annually a tax of not to exceed one (1) mill upon the taxable tangible property within the district to create a general fund for the payment of organizational, engineering, legal, clerical and other administrative expenses,' was deleted, and the second paragraph of K.S.A. 24-1219 was substituted in its stead. The remainder of the first paragraph authorizing the issuance of no-fund warrants was amended to increase the authorized limitation from a one mill levy to two mills to pay for initial organizational, engineering, legal and administrative expenses of the District."10

K.S.A. 24-1219(b) speaks to a watershed district's authority to levy an annual tax following incorporation. K.S.A. 24-1214 provides for taxation and assessments. Operation of a watershed district may require construction of new dams or upgrades to existing dams, if the facts warrant. We find nothing in the provisions of K.S.A. 24-1201 et seq. that prohibits such up-grades or required maintenance, and believe that it would be counter-intuitive to authorize the creation of a dam that could not then be properly maintained or upgraded. Rather, it appears that the financing authority in K.S.A. 24-1201 et seq. may be utilized by watershed districts in order to raise moneys for such purposes as improving existing dams or constructing a new dam, as long as the correct procedures and limits are followed.

However, with reference to your inquiry concerning property owners down stream, we note that K.S.A. 24-1209 states that this tax may be levied against "all of the taxable, tangible property of the district." Likewise, K.S.A. 24-1214 provides for tax and assessments against lands within the district. Thus, in order to be subject to the taxing or assessment authority of the district's board, the property in question must not only be benefitted by the project, the property must also be lawfully included within the boundaries of said district.

Thus, in summary, K.S.A. 24-1201 et seq. contain several statutes authorizing a watershed district to tax or assess property located within the district in order to pay for certain costs. These costs may include those incurred for dam maintenance, improvements to existing dams, or building new dams within the district. The correct procedures to be followed depend upon the statutory authority being utilized to make such assessments. However, property that lies outside the district is not subject to the taxing or assessment authority of a watershed district board, even if such property eventually benefits from a watershed district project.

Sincerely,

Phill Kline

Attorney General

Theresa Marcel Bush

Assistant Attorney General

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