Opinion No.

The Honorable Shane Broadway State Representative 201 S.W. 2^nd Street Bryant, AR 72022-4025

Dear Representative Broadway:

You have requested an Attorney General opinion in response to the following question:

What legal obligations do cities have to clean or maintain drainage ditches running through their city?

It is my opinion that the answer to this question will depend upon whether the drainage ditches in question are a part of a drainage system that the city has undertaken to operate and maintain.

You have not indicated whether the drainage ditches in question are a part of a public drainage system that is operated by the city. This factor is key in determining whether the city has an obligation to maintain the drainage ditches.

If the drainage ditches in question are a part of a public drainage system that the city has undertaken to provide to its citizens, the city has an implicit responsibility to maintain those ditches. Cities have several sources of statutory authority for undertaking to maintain drainage systems, and such an undertaking could entail the maintenance of drainage ditches. See, e.g., A.C.A. § 14-54-601(2); A.C.A. § 14-54-602. Moreover, cities are authorized to operate water and sewer systems, both of which could also entail the maintenance of drainage ditches. See A.C.A. § 14-54-702; A.C.A. § 14-137-106; A.C.A. § 14-234-101 et seq.; A.C.A. § 14-217-101 et seq.; 14-218-101 et seq.; A.C.A. § 14-235-201 etseq.; A.C.A. § 14-88-101 et seq.; A.C.A. § 14-250-101 et seq. Although these statutes do not explicitly impose upon cities an obligation to maintain the drainage systems that they have undertaken to operate, that obligation, in my opinion, arises implicitly from the undertaking itself, as a correlative of the city's act of representing that it will provide such service.

If the drainage ditches are a part of a drainage system that belongs to another entity, or that another entity has legally undertaken to maintain, the city does not have a responsibility under state law to maintain them (although it may agree contractually to do so). For example, if the drainage ditches are a part of a system that is operated by a non-municipal improvement district, such as a suburban improvement district (see A.C.A. § 14-92-101 et seq.) or a property owners' improvement district (see A.C.A. § 14-93-101 et seq.), the city would not be responsible for maintaining the ditches, unless it had contractually agreed to do so.

Finally, if the drainage ditches are located on private property and are not a part of any public drainage system, the city does not have an obligation to clean or maintain them. Indeed, under such circumstances, the city has the authority to order the private property owner to do so.See A.C.A. § 14-54-901.

Assistant Attorney General Suzanne Antley prepared the foregoing opinion, which I hereby approve.

Sincerely,

MARK PRYOR Attorney General

MP:SBA/cyh