Opn. No. ( 1979 )

Hon. James C. Tomasi Town Attorney, Salem

This is in reply to your letter of July 16, 1979, in which you seek this office's opinion as to the responsibilities of the Town and Village of Salem with respect to privately owned flooding streams which flow through both the unincorporated area of the town and within the village boundaries.

Section 4-412 (3) (1) of the Village law provides the discretionary authority for the village to act as follows:

"(1) Drains. May, for the purpose of arresting and preventing damage to property within the village resulting from floods or erosion, construct drains, culverts, dams and bulkheads, and dredge channels, and regulate water courses, ponds, and watering places within or without the village. * * *".

Section 64 (11-a) of the Town Law provides similar discretionary authority for the town to act as follows:

"11-a. Drainage facilities. Upon the adoption of a resolution, the town board of any town may, for the purpose of drainage and to protect the property within the town from floods, freshets, and high waters, construct drains, culverts, ditches, sluices, and other channels for the passage of water, and may deepen, straighten, alter, pipe, or otherwise improve any of the lakes, ponds, streams, ditches, drains, or water courses in any part or section of the town in order to prevent the same from overflowing, and provide that the same carry off such additional water as may be brought to the same by other public improvements in the towns; and for such purposes the town board of any town may acquire real property or an interest therein by purchase, dedication, gift, devise, or by condemnation in the manner provided by law for acquisition of real property for highway or town road purposes."

Further, General Municipal Law, § 119-o authorizes the town and village to solve such a mutual problem of stream flooding by providing as follows:

"1. In addition to any other general or special powers vested in municipal corporations and districts for the performance of their respective functions, powers or duties on an individual, cooperative, joint or contract basis, municipal corporations and districts shall have power to enter into, amend, cancel and terminate agreements for the performance among themselves or one for the other of their respective functions, powers and duties on a cooperative or contract basis or for the provision of a joint service or a joint water, sewage or drainage project. * * *".

It is the opinion of this office that the foregoing statutes do not impose a duty upon the town or village to act.

The Secretary of State of the State of New York has been delegated certain powers and duties in municipal cooperative activity as illustrated in part by the following excerpt from provisions of section 119-v of the General Municipal Law:

"* * *

"b. Receive applications of local agencies for state aid, pursuant to this article, in such form and containing such information as he shall prescribe;

"c. Review and approve the area and scope of any comprehensive study prior to its execution;

"d. Approve applications for state aid pursuant to this article and advise local agencies and the participating municipalities of the approval of their applications for state aid;

"e. Execute contracts for consultant services necessary for such studies and reports jointly with the local agency requesting state aid therefor;

"f. Approve the amount of compensation to be paid for such consultant services and the methods of determining such compensation;

"g. Receive, review and approve final reports of local agencies prior to final payment;

"h. Approve vouchers for the payment of state aid grants pursuant to the provisions of this article;

"i. Make an estimate of the annual funds necessary to carry out the provisions of this article and request such amounts for inclusion in the executive budget; * * *".

It is recommended that you contact the office of the Secretary of State for guidance in this matter. Finally, if your streams should fall within the Federal jurisdictional limits, it is recommended that you contact the Army Corps of Engineers.