Untitled Texas Attorney General Opinion ( 1981 )

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The Attorney General of Texas
December 29, 1961
MARK WHITE
Attorney General
Honorable Mike Driscoll~ Opinion No. MW-419
Supreme Court Building
P. 0. Box 12546
Harris County Attorney
Austin, TX. 76711 1001 Preston, Suite 634 Re: Authority of a county to
5121475.2501 Houston, Texas 77002 prohibit discharge of sewage
Telex 9101874.1367 plant effluent into a county
Te,ecc,pIer 51214750266
roadside ditch
1607 Main St.. Suite 1400 Dear Mr. Driscoll:
Dallas, TX. 75201
21417428944 You have requested the opinion of this office on the following
question:
4624 Alberta Ave., SUite 160
El Paso, TX. 76305 Does Harris County have the authority under law to
913l5333464 prohibit the discharge of sewage plant effluent
into a county roadside ditch?
1220 Dallas Ave.. Suite 202
Houston. TX. 77002
You inform us that a privately owned sewage plant is discharging
713165c-m66 sewage effluent into a county roadside ditch without county
permission. The Texas Constitution gives the county commissioners
courts “such powers and jurisdiction over all county business, as is
606 Broadway, Suite 312
conferred by this Constitution and the laws of the State, or as may be
Lubbock. TX. 76401
8081747.5236
hereafter prescribed.” Art. V, 518. The counties have no powers or
duties other than those expressly or impliedly conferred by the
constitution and statutes. Canales v. Laughlin, 214 S.W.Zd 451 (Tex.
4(309 N. Tenth. Suite B 1948) ; Attorney General Opinion H-374 (1974). Unlike home rule
MeAllen. TX. 76601
cities, counties have no general police power. Comrtissioners’ Court
51218824547
of Harris County v. Kaiser, 23 S.W.2d 840 (Tex. Civ. App. - Galveston
1929, writ ref’d); Harper v. Lindsay, 454 F. Supp. 597 (S.D. Tex.
200 Main Plaza, Suite 400 1978). The proper approach is to determine whether the statutes
San Anlon~o. TX. 76205 expressiy or by necessary implication provide the requisite authority
5121225-4191
to the commissioners court. Canales v. Laughlin, s.
An Equal OppOrtunityI Article 2351 provides the general statutory grant of power to the
Aftirmative Action Employer commissioners courts and specific powers are found elsewhere.
V.T.C.S. art. 2351. Neither article 2351 nor any other statute
specifically authorizes the county to promulgate any sort of blanket
prohibition of all discharges of treated sewage effluent Into county
ditches.
The Texas Water Code sets out the authority for the regulation of
the discharge of sewage plant effluent and provides that the Texas
p. 1427
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Honorable Mike Driscoll - Page 2 (MW-419)
Department of Water Resources is the administrative agency with
regulatory authority over water quality In the state. Water Code,
126.001 et. seq. The Texas Water Coormission is the agency that issues
permits for the discharge of waste into or adjacent to water in the
state. Id. 26.027. It has been suggested that various Water Code
provisionsight authorize a county to regulate discharges into county
roadside ditches.
The Water Code provides that a county commissioners court may use
the same procedures as the Texas Water Commission in issuing permits
to private sewage facilities so as to abate or prevent pollution or
injury to public health. Id. $26.032. “Private sewage facilities” is
defined by section 26.031x include a number of specific types of
sewage facilities “and all other facilities, systems, and methods used
for the disposal of sewage other than disposal systems operated under
a permit issued by the [Water] [C]ommlssion.” Since the Water
Commission has issued a discharge permit for the sewage plant in
question, the county may not require a permit under the Water Code.
The Water Code authorizes a local government which owns or
operates a disposal system to enact and enforce rules, ordinances,
orders, or resolutions to control and regulate the type, character,
and quality of waste which may be discharged to the system so as to
protect the maintenance personnel and to prevent unreasonable adverse
effects on the disposal system. Id. 26.176(a). “Disposal system” is
defined as any system for disposiKof waste, including sewer systems
and treatment facilities. Id. §26.001(16). This provision of the
Water Code addresses pretreatment of waste that enters treatment
systems and does not cover discharges of treated sewage effluent to
county roadside ditches.
Harris County Flood Control District is coterminous with Harris
County and is governed by the Harris County Commissioners Court. Acts
1937. 45th Leg., ch. 360, Il. Among the enumerated purposes of the
creation of the district is “the control, storing, preservation. and
distribution of the storm and flood waters” Id. The district has the
power “ to regulate the flow of surface and flood waters.” Id. §§I,
2(e). The Harris County Flood Control District is expressly
authorized to pass resolutions establishing building setback lines
along any waterway vithin the boundaries of the district. Acts 1963,
58th Leg., ch. 118 at 318. We believe the absence of specific
authority to prohibit discharges into drainage ditches lndica.tes that
the legislature did not intend the district to have that power. The
county commissioners court, through its flood control authority, does
not have express or implied authority to prohibit discharges into
drainage ditches. Likewise, if the subject property is within a
drainage district, there is no statutory authority for the
commissioners court to prohibit sewage effluent discharges Into a
district’s ditches. -See Tex. Water Code 556.001 et. seq. (1972).
p. 1428
Honorable Mike Driscoll - Page 3 (MW-419)
The county has the authority to require abatement of
health-related nuisances. V.T.C.S. art. 4477-l. 53. One of the
statutorily recognized nuisances is “[a]ny collection of water in
which mosquitoes are breeding within the limits of any city, town or
village.” 1n your opinion request you state that the pooling
condition In this case breeds mosquitoes and is a health hazard. The
question of whether the discharge of effluent creates a nuisance is a
question of fact. The procedure to be followed in the abatement of
health-related nuisances by county health authorities Is set out in
the statute. -Id. 53.
In addition to exercising applicable statutory authority, Harris
County has the right to prevent interference with its easement. The
easement held by Harris County necessarily carries with it the right
to use and control as much of the easement as may be reasonably needed
for the granted purposes. Hill Farm, Inc. v. Hill County, 436 S.W.Zd
320 (Tex. 1969). The fact that the use contemplated at the time the
easement was granted was use as a public road in no way precludes a
different use as an avenue of drainage at the present time. Id. at
323. The landowner has the right to use the land subject rthe
easement in a manner that does not affect or impair the enjoyment of
the public easement. Id. at 323; Hale County v. Davis, 572 S.W.Zd 63,
65 (Tex. Civ. App. -Amarillo 1978, writ ref’d n.r.e.); Pittman v.
City of Amarillo, 598 S.W.Zd 941, 944 (Tex. Civ. App. - Amarillo 1980,
writ ref’d n.r.e.). See also Jefferson County Drainage District No. 6
v. Southwell, 32 S.W.Zd 895 (Tex. Civ. App. - Beaumont 1930, writ
ref’d) (district was not entitled to injunctive relief because the dam
constructed by the landowner across the drainage ditch in no way
interfered with the complete and adequate drainage of water). Whether
or not the landowner’s use of the ditch for sewage effluent actually
constitutes an encroachment on the county’s easement is again a
question of fact.
The issuance of a permit by the Texas Water Commission does not
preclude Harris County from pursuing the aforementioned remedies.
Section 26.133 of the Water Code provides that “[nlothing in this
chapter affects the right of any private corporation or individual to
pursue any common-law remedy to abate a condition of pollution or
other nuisance or to recover damages.” In accordance with section
26.133, a standard provision of water commission permits states that
“[t]he issuance of this permit does not convey any property rights in
either real or personal property. or any exclusive privileges, nor
does it authorize any injury to private property or any invasion of
personal rights nor any infringement of State, or local laws or
regulations; nor does it obviate the necessity of obtaining Federal or
local assent required by law for the permitted discharge.” The fact
that a discharger has been granted a discharge permit will not defeat
an action for damages for the resulting pollution. Atlas Chemical
p. 1429
Honorable Mike Driscoll - Page 4 (MW-419)
Industries, Inc. v. Anderson, 514 S.W.Zd 309 (Tex. Civ. App. -
Texarkana 1974). aff'd. 524 S.W.Zd 681 (Tex. 1975).
SUMMARY
Harris County has no authority to institute a
blanket prohibition of all discharges of sewage
plant effluent into county ditches. The county
may prevent Interference with its easement through
cO*O" law remedies or statutory nuisance
abatement proceedings.
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Susan Plettman
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Tim Brown
Rick Gilpin
Jim Moellinger
Susan Plettman
p. 1430