Untitled Texas Attorney General Opinion ( 1947 )

R-508
OlWXCE OF
THE ATTORNEY GENERAL
Auwrm, TEXAS
PRICE DANIEL
*~TcmNEY GENERAL July 28, 1947
Hon. E..V. Spence, Chairman
Board of Water Engineers
302 West 15th Street ._,
Austin, Texas Opinion No. V-319
Re: Sale of stored water
by Lower Colorado Rl-
ver Authority for irri-
gation and manufacturing
use outside the Authori-
ty's statutory bounda-
ries
Dear Sir:
The question and facts upon which our opinion
Is requested are stated In your letter of May 23, 1947,
as follows:
"Your opinion is requested with
respect to the appllcatlonof 3. T.
Suggs, Box 3, Lake Jackson, Brazoria
County, Texas, now pending before the
Board, to appropriateand divert
40,000 acre-feet per annum of the unap-
propriated waters of the State of
Texas, the same to be diverted from
the,,ColoradoRiver and the San Bernard
River for the purpose of utilizing
35,000 acre-feet for Irrigationand
5,000 acre-feet for manufacturing. The
annual diversion from the sources of
supply to be on the basis~of 10,000
acre-feet from the Colorado River of
which 2,000 is .tobe for manufacturing,
and 30,000 acre-feet from the San Bernard
River of whhich3,000 should be for msnu-
facturlng.
". . .
"The question arises - hasthe Lower
Colorado River Authority the right to sell
water to Mr. J. T. Suggs for irrigation and
-.
Hon. E. V. Spence - page 2 : v&g
102
manufacturingpurposes, aa to use,
distribute and sell the same outside
the boundaries of the District, and
in this case the lands being in the
Brazos Valley."
We have examined the applicationof J. T.
Suggs which states that any permit granted by the
Board to divert water from the Colorado River will
be contingentupon the ability of the applicant to
purchase stored water from the Lower Colorado River
Authority. The only waters, therefore, subjectto
this opinion, are those of the Colorado stored by
Lcm. The question restated is whether or not LCRA
may sell legally stored water to a purchaser who
will deliver it for ~irrigatlonand manufacturing
use beyond the boundaries of the District. In addl-
tion, and in order to ,fullyanswer your question,
it till be necessary to decide whether a purchaser
who has bought stored water from LCRA may, by follow-
ing the procedure outlined in Article 7590, V. C. S.,
remove the water so purchased beyond the watershed.
The various conservationand:reclamationdis-
tricts, Including LCRA, have been created by special
acts under Article XVI, Sec. 59 of the Constitution,
and have only those powers expresslygranted or reason-
ably implied from the acts upon which their creation
depends. The solution to your problem must be deter-
mined by ascertaininglegislative Intent as expressed
in these acts.
LCRA.was created by Acts 1934, 43rd Legisla-
ture, 4th C. S Ch. 7, as amended. Its boundaries
are coincident.kth the boundaries of Blanco, Burnet,
Llano, Travis, Bastrop, Fayette, Colorado,Wharton,
San Saba, and Matagorda Counties. The powers given
LCRA are set out in Section 2 of the Act creating ft
and in so far as these powers touch on the subject
under lnvestlgatlonit appears that LCRA Is authorized
to control, store, and preserve within the boundaries
of the district the waters of the Colorado and its
-i6utaries any useful purpose and use distribute
a& sell the same wlth5.nthe bounckes of ihe district;
develop and generate water power and electric energy
within the boundaries of the district and distribute
and sell water power and electric energy within or
without said boundaries;aid In foresti
watershed area of the Colorado and aid in prevention
103
Hon. E. V. Spence - Page 3 - V-319
of soil erosion and floods within said watershed area;
acquire by purchase or otherwise any property, real,
personal or mixed, within or without the-boukdarlesof
the district necessary or convenient to the exercise of
the nowers conferredunon it. Rezardless of nermits -
held; the district is not permitted to use fo; lrrlga-
tion purposes any water unless expressly authorizedby
subsequentpermit granted by the Board of Water Rngi-
neers; provided, however. that nothing shall prevent
the district from selling for Irrigation purposes wlth-
In the boundaries of the district any water impound
by it under authority of law. Its use of water for the
purpose of generatinghydro-electricpower Is subordi-
nated~and madi?inferior to the rights of any citizen of
Texas. or bodies nolltic. to build dams and Impound
flood-waterswithin the watershed of the Colorado and
its tributariesfor domestic purposes and for the pur-
poses of irrigationand any permit held by It is sub-
ject to the limitationsindicated.
We find In the Act creatina LCRA an exnress di-
rective to use, distribute and zell within she bounda-
ries of the district the waters which are controlled,
stored and preserved by It. It is also provided that
regardless of the permits which it holds the district
Is-requiredto obtain a subsequent permit from your
Board In order to use any but impounded waters for lrri-
gation, It being expressly provided that nothing shall
prevent the sale of water mounded under authority of
law for irrigationwithin the boundaries of said dls-
trlct. LCRA may distribute and sell water power and
electric energy wlthln or without its boundaries, and
Is to aid in foresting and In the prevention of soil
erosion and floods within the watershed area. It may
acquire within or without its boundaries property nec-
essary to the exercise of its powers. The Act indicates
to us a carefully consideredattempt by the Legislature
to localize certain functions and to generalize others.
~Turningnow to the other Conservationand Recla-
mation Acts, all of which are compiled under Special
Acts beginning at page 536, Vol. 21, V. C. S., we brief-
ly review the provisions of these Acts in so far as
they touch on the subject under Investigation.
Brazos River Conservationand ReclamationDistrict.
Its boundaries are coincidentwlth the watershed of the
Brazos. It is authorized to control and employ the
flood, storm and unanpropriatedflow waters of said
~.p~4 Hon. E. V. Spence - Page 4 - V-319
district in order to provide for the preservationof
the equitable rights of the people of the watershed
area; the conseTPationof water essential for do-
mestic uses of the watershed; for the itigation of'
lands in the watershed area; the equitable distribu-
tion of waters to the regional potential requirements
for all uses, and to make available waters in the de-
velopment of commercialand Industrial enterprisesin
all sect,Tonsof the watershed.
Central Colorado River Authority. It is composed
of the.Countyof Coleman. It is authorized to use.
distributea,ndsell its waters within the boundaries
of the district. Water power ana electric energy may
be sold witNn or without such boundaries. It Is di-
rected to aid in prevention of soil erosion and floods
nithin the watershed area. It may acqpire property
necessary to the exercise of its powers, whether such
property be within or without such district.
&uXlalupe-Blanc0River Authority. Its bounda-
riesare COinOident~wlththe boundaries of Hays; Comal,
Quadalupe.Caldwell, Gonzales. Dewitt. Victoria. Ken-
dall, R&igio and Calhoun Cou&es. It is authhrized-to
use, distributeand sell Its waters within the bountia-
rles of the district;water power and electric energy
to be distributedand sold within or without such bounda-
ries. It is to aid in foresting and in the.prevention
of soil erosion and floods within the watershed area.
Property necessary to carry out its purposes may be ac-
quired within or wIthout the district.
Lower Neches Valley Authority. Its boundaries
consist of Jefferson.Iiardin.Tiler and nortions of
Liberty and Chambers Counties. -It is ac‘cordedpower
of control and employment of the waters of the Neehes
in order to preserve the equitable rights of the
people of the watershed area: for irrigationof land
in said district and land without said district but
within said watershed; for the equitabledistribu-
tion of waters to the regional potential require-
ments for all uses, and to make availablewaters in
the developmentof commercialand lndustrial~enter-
'prises in all sections of the,watershed of the dis-
trict.
Lower Conch0 River Water and Soil Conservation
Authority Its boundaries consist of Conch0 County.
ft Is au&orized to sell water power and electric ener-
Hon, E. V. Spence - Page 5 - V-319
gy within and without the district3 to provlde,forthe.
Irrigation of lands In the district and for the equita-
ble distributionof waters of the Conch0 and Colorado
Rivers to the regional potential requirementsfor all
uses, and to make available waters in the development
of commercialand industrialenterprisesin all sec-
tions of the watershed area of the district.
Nueces River Conservationand ReclamationDistrict.
Its boundaries describe by metes and bounds the water-
shed area. It has power of,control and employmentof
the waters of the Nueces for domestic uses of the people
of the watershed; for irrigationof land In the water-
shed; for the equitable distributionof waters to the
regional requirementsfor all uses, and In order to
make available waters in the developmentof commercial
and tidustrialenterpriseswithin the watershed.
PanhandleWater ConservationAuthority Its bounda-
ries consist of certain named counties alo& the Red,
Canadian and Brazes Rivers. The District has the au-
thority to distribute and sell water power and electric
energy within or without its boundaries; to provide-for
, the Irrigationof lands In the watershed areas; pro- ..
vided, that such district may not use water for lrriga-
tion unless It obtains a permit from the Board.of Water
Engineers, It being expressly provided, however, that
nothing is to prevent the district from selling for
Irrigationwithin its boundaries any water impounded
by it under authority of law, and to make available
waters In the developmentof.commercialand Industrial
enterprises in the watershed area of the district.
Sablne-NechesConservationDistrict. Its bounda-
ries originally consisted of certain named counties,
but by amendment these boundaries were extended to
Include the watershed areas of the Sabine and Neches
Rivers. It has power of control and employmentof the
waters of these rivers for the preservationof the
equitable rights of the people of the watershed; for .
irrigation of all lands within said watershed; develop-
ment of commercialand``industrial enterprisestherein,
and to conserve such waters for the domestic uses of
the people of the district,
Sulphur River Conservationand ReclamationDis-
trict. It boundaries consist of the watershed area
me Sulpkr River, It may control and employ the
Hon. E. V. Spence - Page 6 -V-319 '.
P f:36
flood, storm and unappropriatedflow waters to pre-
serve the equitablerights of the people of the water-
shed; to conserve water for essential domestic uses
within the watershed; for the itigation of lands
within the watershed; for the equitable distribution
of Its waters to the regional potential requirements
for all uses, and to make available such water for
commercialand industrial enterprisesin the water-
shed.
Upper Red River Flood Control and Irrigation,
District. It Is composed of 3riscoe, Hall and Chll-
dress Counties. It has power to control, store and
preserve within the boundaries of the district the'
waters of Prairie Dog Fork and Red River for the re-
clamation and irrigation of the lands of the district
and to use, distribute,and sell the same within such
boundaries.
Upper-GuadalupeRiver Authority. It is composed
of the County of Kerr. It is authorized to use, dis-
tribute and sell Its waters within the boundaries of
the district for any useful purpose, and to acquire
such property as may be necessary to carry out its
purposes wIthin or tithout the district.
We find in these acts a more or less uniform
insistenceby the Legislature to confine within the
district'sboundaries the sale generally by it of
stored waters and specificallysale by it of stored
waters for manufacturingand irrigationuse; per-
missionto sell and distribute electric energy and
water power within or without such boundaries;a
conservationpolicy regarding foresting,flood
control and soil erosion covering the watershed
area; the power to acquire property necessary to
carry out the powers of the district within or with-
out the boundariesof such district, and the dele-
gation generally of a duty to preserve the waters
for the watershed area In accordancewith regional
potential requirements.
In the following Instanceswe have found exceptions
to the general policy discussed above:
Guadalupe River Authority. Its boundaries consist
of certain named surveys in Coma1 County. Its right to
Hon. E. V. Spence - Page’7 -V-p9
control, store, sell and dlstribute,waterIs acquired
by approprlatlonM.the,usual manner by ,petit from
your:,Board.andthe ,exerclse~ofall privileges obtained
under such permits is subjectto the provisions of
Chapter 1, Title 128, R. c. S., 1925, as amended, Since
water la permitted to be moved beyond the watershed by
Article 7590, R. C. S., 1925, which is a part of Chap-
ter 1, Title 128, it would appear:~,~that
the district
may sell toma purchaser who In turn might apply to your
Board under said Article for a per&t to remove the
mater so purchased beyond the watershed and beyond the
district's boundaries.,.
&ilf Water Supply Dlstrlct.,,Its boundaries con-
sist 5?7tXson, &arn Be San Patriclo aa Nueces
S
Counties. It is.spe%ioa%y authorized
&thorizea to sell water
to towns, cities and other
other~politlcalsubdivisionsIn the
State,of Texas, to private corporationsand to indlvl-
Stat6
anals,
duals, rithin
mtnl~l or without
titnout the
tne district.
a&strlct.
San JaCinto Conservationand Be&nation District.
It is-boundedb the watershed of the S J into
cept for'the Co&y of Harris, As orip&$ e&EGd
the Act creatj.ngthis'districtcontains the usualpro)
vlslons~indicated above. However, by amendment,Acts
1941, page 769, the district was ~authorlzedto enter into
any and all necessary and proper eontracts ~wlthother
agencies, districts and bodiespolitic and corporate and
others for the storage, conservation,utilization,trans-
Portation and sale of lmpounded,waters.andelectric
power to cities, towns, .industrialsites, persons, firms
and corporationswlth%n or Mthout the boundaries of the
district.
Upper-ColoradoRiver Buthorlty ThIsdIstrict
Is comnosed of Coke and TomGreen C&nties.~ It is au-.
thorized "to sell and distribute,water without the
boundariesof the district to any municipality for do-
mestic, municipal and irrigation purposes, and to any
person, firm, or, corporationfor municipal purposes or
irrigation,together with the right to'~construct,fnmes,
lrrlgat.tion
ditches, plpeltnes and storage reservoirs
without the district for such purposes.
The fact that the Legislature has seen fit in
bertaln cases to confine sal,esfor manufacturdngand
irrigationuse,tithin flxed boundaries but has deviated
from this policy in other cases, together with an over-
all policy of localiiing certain functions while
-. A
,/.-,A
Hon. E. w. Spence - Page 8 -.w-319’
1108
generalizingothers, leads us to the conclusionthat
only where sales beyond the district are expressly au-
thorized were they intended to be permitted. It is our
opinion that under its present act LCRA has no autho-
rity to distribute or sell its stored water~for use
beyond MX boundaries.
In digesting the various conservationand recla-
mation Acts; we covered and consideredonly certain of
the expresslygranted powers and functionsaccorded
such districts. In most cases, these express powers
are preceded by a broad grant of authority to exercise,
all powers and functions conferredupon such districts
by general law and by the conservationamendment to the
Constltutlonand that the grant of express power is not
Intended to limit the general powers so conferred.
Sections 1 and 2 of the LCRA Act (supra) are the sec-
‘tlonswhich confer upon it these general powers. In
addition, It is usually provided that the Act shall
be liberally construed. See Sec. 18, LCFtAAct (supra).
We have donsidered these sections~w%threference to
the situation under investigationbut have been unable
to find any purpose, function or power conferredupon
LCFU under the general law or by the conservation
amendment to the Constitution,whichwould authorize
It to sell stored waters beyond its boundaries in the
face of an express directive that it use, distribute
and sell such waters within such boundaries.
If the district Is not authorized to sell or dis-
tribute waters beyond its boundaries,then it necessari-
ly follows that the Legislature intended that these
waters be used only within such=boundaries. To permit
a purchaser from such a district to distributeand use
the stored waters purchased by him beyond district
boundarieswould nullify whatever purpose the Legisla-
ture had In mind In placing restrictionson sales by
the district of such waters. We have covered at
length the various conservationand reclamationdis-
trict acts because we believe that these,acts,with the
exceptions Indicated, show an overall purpose by the
Legislature to preserve for the benefit of the ln-
habitants of these districts the waters stored by such
districts and to permit a purchaser to remove such
waters beyond district boundarieswould circumvent
this purpose. It is. our opinion that a purchaser,of
stored waters under the present LCRA Actsmay not dis-
tribute and use such waters ,forIrrigationand manu-
facturing purposes beyond LCRA boundaries.
109
Hon. R. V. Spence - Page 9 -V-319
In our opinion, ArtlOle 7589, V. C. S., declar-
lng it to be~unlawfulto remove water .beyondthe .,
watershed, Article 7590, V. C.&, providing a method
by which water may be removed upon applicationto your
Board, and Article 7591, V. C. S., making It a mls-
demeanor and providingpenalties for removing waters>
without Proper authority,have no appllcation.tothe
sltUatiOn presented. Msny of the districts discussed.
above consist of named countiesso thatthe overall
boundarymayor may not be coincidentwith the ~water-
shed area. Whether the district boundaries lie within
or without the watershed,:or,whetherthesesboundaries
are coincidentwith the watershed, all of the special
acts In question having been enacted subsequentto ~'
Articles 7589, 7590 and 7591, have the effect of cre-
boatingto the extent indicated in each act an exception
to the general law stated in said Articles. See
25 R~.C. L., 929, 59 C. 'J.P. 936, Sec. 546, 39 T.J.
. p. 150, Sec. ifi'
2, Harris Count Drainage District No.12
3 35 s w (2) 118. Hunt
=~*A``sl,nCB``(``eAP~orn. App:) i2~S; W. 12)
;&& and Fortinberryv:State (Corn.~pp.)--283S. W
. The,effect-ofthis exception Is two-fold; (lj
making it lawful to use waters beyond the watershed
where the boundaries of the district extend beyond such---
watershed,,and (2) except- from the.operationof Artl-
cle 7590 the waters involved in the spe&lal,actsin
question to the extent lndlcated.ineach of such acts.
We find no decision in Texas on this question.
The only related cases we have found are not in point,
since in each a statute easted permitting removal of
waters beyond district boundaries. See San Jacinto
River Conservationand ReclamationDistrict v. Sellers
Ct. 1945) 184 S. W. (2) 920; Cameron County
rovement District No. 1 v. Danlels (T.C.A.
S. W. 1066.
Outside Texas the few cases found are not in
harmony. The rule laid down in Jenison v. Redf2el.d
(Cal. sup. ct. 1906) 87 P. 26, involving an irriga-
tion district, confines water strictly~to district
boundaries,holding that the waters of such districts
are held in trust for their Inhabitantsand may not be
used beyond district.bouudariesin the face of a sta-
tute restrictinguse within such boundaries. On the
other hand, the following cases, while announcing the
rule laid down in the Jenison case, place an exception
I upon this rule, holding that if the rights of the ln-
habitants of the district are not injured and if there
t-
110 Hon. E. V. Spence - Page 10 - V-319
5s a surplus of water, .theClistrictmay furnish water
for use beyond Its boundaries. See,Yaden v,'Gem Irrl~
gation District (Idaho Sup. Ct. 1 2 ) 216 P. 2 0;
Koch v. Colvln (Mont. Sup. Ct.'19$7
0 10 P. ,(2 7 334, and
Maclay,v. Mlssoula IrrigationDistrict 7Mont. Sup. Ct..-
1931) 3 P. (2) 286. In our opinion, the principlesan-
nounced In these cases with regard to Irrigation'dls-
tricts do not necessarily apply to conservationand
reclamationdistricts such as LCRA due to the broader
purpose for which the conservationand reclamation
district has been created ,andthe more extensivearea
over which this ,purpoae'
extends. See Brazes River
Conservationand ReclamationDistrict v. McGraw (Tex.
SUP. ct. 1936) 91 S. w. (.2)670.
Under Its present Act (Ch, 7, Acts
43rd Legis. 4.thC.S.1934, as amended),
waters stored by the Lower Colorado
River AuthorWy may not be distributed
or sold by,it for irrigation or manu-
facturing use beyond the Authority's,
boundaries. '.Thisrestrictioh~alsore-
lates to purchasers from the Autho-rity;
Yours very truly ``
ATTORNRY WRERAL OT~>TRXAS
. D. Pm&t, Jr.
L-
Assistant
.'
,:
APPROVED '..
RDPrbt