STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5868

March 18, 1981

APPROPRIATIONS:

Capital outlays

Waterways projects

NATURAL RESOURCES:

Waterways projects

WATERWAYS FUND:

Capital outlay appropriation

Legislative mandate

The appropriation of a grant in 1980 PA 374, the capital outlay appropriation act, from the Michigan state waterways fund to the Department of Natural Resources for a waterways cleanup on the Rouge River is lawful and implementation is not subject to review and approval by the State Waterways Commission.

Honorable Gary M. Owen

Acting Chairman

Joint Capital Outlay Subcommittee

The Capitol

Lansing, Michigan

You have advised this office that the Legislature, in its fiscal year 1980-1981 capital outlay appropriation act, 1980 PA 374, has appropriated $100,000 to the Department of Natural Resources ('DNR'), from the state waterways fund as a grant-in-aid for 'Wayne County Rouge River cleanup--City of Inkster.' Your letter of request states: 'The Waterways Division of the Department of Natural Resources refuses to implement this appropriation saying that the project is illegal. The director of the Waterways Division has not consulted with nor requested an opinion of the Attorney General.' To date the appropriation has not been implemented.

Based on the above, your question may be phrased as follows:

1980 PA 374, supra, the capital outlay act, specifically appropriates, under the heading of 'Waterways Projects,' a grant of $100,000 for the River Rouge cleanup in the City of Inkster. The funds in question are appropriated, as a grant-in-aid, to the DNR. The Governor did not disapprove this specific line item appropriation under the authority of Const 1963, art 5, Sec. 19. There is no language in 1980 PA 374, supra, subjecting such grant to prior review and approval of the State Waterways Commission. Thus, in the absence of limiting language in the body of the appropriations act, the appropriation and its expenditure is not subject to approval of the DNR or the Waterways Division of the DNR.

The State Waterways Commission and the Michigan state waterways fund were created by 1947 PA 320, MCLA 281.501 et seq; MSA 3.534(1) et seq, supra, Secs. 2 and 8. Pursuant to 1947 PA 320, Sec. 8, supra, the Michigan state waterways fund constitutes a revolving fund from which fund the Legislature authorizes appropriations: 'Such fund shall be disbursed by the [State Waterways] commission in carrying out the provisions of this act, subject to the accounting laws of the state.' In addition, 1947 PA 320, supra, Sec. 9(2), as last amended by 1978 PA 597, provides that certain taxes be credited to the fund, in part, 'to improve boating facilities throughout this state.'

Further, 1947 PA 320, supra, Sec. 6, states that 'Facilities in harbors and connecting waterways established under the provisions of this act shall be open to all on equal and reasonable terms.' The word 'waterway' is defined in 1947 PA 320, supra, Sec. 1(c) as 'any body of water of whatever size, whether of natural or artificial origin.' Thus, in making appropriations from the Michigan state waterways fund as authorized by 1947 PA 320, Sec. 8, supra, the Legislature may appropriate funds for maintenance and improvements on waterways such as the Rouge River. 1947 PA 320, supra, Secs. 1(d), (g), (h). Therefore the appropriation is lawful.

It must be noted that Const 1963, art 5, Sec. 20, which pertinently states that 'No appropriation shall be a mandate to spend' does not apply to grants-in-aid appropriations authorized by the Legislature from the Michigan state waterways fund, a revolving fund. However, if revenues in such fund do not meet projected expenditures therefrom, grant-in-aid appropriations may be subject to reduction by the Governor, with the approval of the appropriating committees of the House and Senate.

It is fully anticipated that the DNR and the State Waterways Commission will execute and administer the specific grant-in-aid appropriation under discussion. The opinion of the Attorney General commands the allegiance of all state departments, agencies and officers. Traverse City School District v Attorney General, 384 Mich 390; 185 NW2d 9 (1971); OAG, 1977-1978, No 5156, pp 67, 76-77 (March 24, 1977); OAG, 1947-1948, No 529, p 405 (July 15, 1947); OAG, 1951-1952, No 1258-A, p 54 (August 29, 1950).

It is, therefore, my opinion that the DNR and the State Waterways Commission must execute and administer the $100,000 grant-in-aid appropriation from the Michigan state waterways fund for the Wayne County Rouge River cleanup, City of Inkster, as authorized by the Legislature in 1980 PA 374.

Frank J. Kelley

Attorney General