Untitled Texas Attorney General Opinion ( 1974 )

OF TEXAS
AUSTIN. Tncz+as 78711
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The Honorable Hugh C. Yantia,Jr.
Executive Director
Texas Water Quality Board Re: Authority bf cities to estab-
314 W. 11th Street lish water pollution con&L
Austin, Texas 78701 programs under 5 21.357, Texas
Water Code
Dear Mr. Yantis:
You have asked three questions which relate to § 21.357, Texu Water
Code. That eection provides:
.“(a) Every city in thjr rtate having a population
of 5,000 or more inhabitants shall, and any city of
this state may, establirh a water pollution control
and abatement program for the city. The city ohall
employ or retain an adequate number of personnel, on
either a part-time or full-time basis as the needs and
circumetances of the city may require, who by virtue
of their training or experience are qualified to perform
the water pollution control and abatement functions
required to enable the city to carry out its duties and
responsibilities under this section.
l!(b) The water pollution control and abatement
program of a city shall encompass the entire city and
may include areas within its extraterritorial jurisdic-
tion which in the judgment of the city should be included
to enable the city to achieve&e objectives of the city for
the area within its territorial jurisdiction. The city ahall
include in the program the services and functions which,
in the judgment of the city or as may be reasonably re-
quired by the board, will provide effective water pollu-
tion control and abatement for the city, including the
following services and functions:
p. 1410
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The Honorable Hugh C. Yantia, Jr., page 2 (H-304)
“(1) the development and maintenance of an
inventory of a11 significant waste discharges into
or adjacent to the water within the city and, where
the city so elects, within the extraterritorial juris-
diction of the city, without regard to whether or
not the discharges are authorized by the board:
“(2) the regular monitoring of all significant
waste discharges included in the inventory prepared
pursuant to Subdivision (1) of this subs’ection:
“(3) the collecting of samples and the conduct-
ing of periodic inspections and tests of the waste
discharges being monit0re.d to determine whether
the discharges are being conducted in compliance
with this chapter and any applicable permits, orders
or regulations of the board, and whether they should
be covered by a permit from the board;
“(4) in cooperation with the board, a procedure
for obtaining compliance by the waste dischargerr
being monitored, including where necessary the use
of legal enforcement proceedings; and
“(5) the development and execution of reason-
able and realistic plans for controlling and abating
pollution’ or potential pollution resulting from gener-
alized discharges of waste which are not traceable
to a specific source, such a,s storm sewer discharges
and urban r’unoff from rainwater. ”
Your first two questions are:
“Fiqet, does Section 21.357 of the Texas Water Code
confer upon cities of this state any powers which are
not otherwise given them by law? Second, does this
section give cities any power to control activities out-
side of the city limits but within the extraterritorial
jurirdiction of these cities? ”
p. 1411
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The Honorable Hugh C. Yantir, Jr., page 3 ’ (H-304)
Although it is clear that there are other source0 of power for a city’s
exercise of some of the duties outlined in 5~216357, both within the city
limits, and within the city’s extraterritorial jurisdiction, e.,g. ; $ 5 21.351,
21.353 and 21.354, Texas Water Code; Articlea 970a, 1015 and 1175. Vernon’s
Texas Civil Statutes; Swinney v. City of San Antonio, ~483 S. W. 2d 556 (Tex.
Civ. App. , San Antonio, 1971, no writ), we believe a city’s authority is not
necessarily limited to those statutes. Whatever authority is necessary to
perform the actions permitted or required under 5 21.357 is necessarily
implied whether nor not that authority may .be granted independently by other
statutes. cf., Davis v. City of Taylor, 67 S.W.2d 1033 ~(Tex. 1934); Foster
v. City of Waco, 255 S.W. 1104 (Tex. 1923); Hayden v. City of Houston, 305
S.W.2d 798 ,(Tex.~Civ.App., Fort Woith, 1957, writ ref’d, n. r. e.). Of
course, a city’s authority would not extend to the point of setting water quality
standards. $ § 21.006, 21.075, 21. 257, Texas Water Code.
Therefore, in answer to your firat and second questions, it is our
opinion that, irre,spective of the power conferred by other statutes, a city
may exercise the power necessary to perform the activities permitted and
required by s 21.357 of the Water Code.
Your third question is:
“Can this section be relied upon by cities to furnish a
basis for the regulation of private sewage facilities? If
so, by use of this authority can cities use the power
conferred by Section 21.357 to regulate private sewage
facilities located outside the city limits, but within the
extraterritorial jurisdiction of the city? ”
You indicate that your question is prompted by a belief that 5 $ 21.083
and 21.084, Texas Water Code, provide an exclusive means of regulating pri-
vate sewage facilities. Section 21.083.creates a means of regulation by the
board. A public hearing is required as is consultation with the State Commis-
eloner oi Health. The Board ie permitted to establish a licensing system and
may delegate the licensing function to local governments. Section 21.084 gives
similar authority to counties.
p. 1412
The Honorable Hugh C. Yantis, Jr., page 4 (H-3041
Our analysis of your first two questions requires an affirmative
response to your third inquiry. The authority given cities under $21.357
and other statutes is sufficiently broad to permit regulation of private
sewage facilities. Sections 21.083 and 21.084 do nQt expressly prohibit
local regulation. ct., Swinney v. Citv of San Antonio, supra.
SUMMARY
A city has broad powers to establish water
pollution control programs under 5 21.357, Texas
Water Code. These powers can include regulation
of private sewage facilities in thd .oity and in its
extraterritorial jurisdiction.
Vqry truly yours,
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1413