Untitled Texas Attorney General Opinion ( 2012 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
May 21, 2012
The Honorable Allan Ritter Opinion No. GA-0935
Chair, Committee on Natural Resources
Texas House of Representatives Re: Authority of a county, under section 35.019,
Post Office Box 2910 Water Code, to enact water availability requirements
Austin, Texas 78768-2910 applicable to that part of a county outside of a
priority groundwater management area, and related
questions (RQ-1003-GA)
Dear Representative Ritter:
You ask five questions related to the authority of a county commissioners court to enact water
regulations in counties that have areas designated as priority groundwater management areas. l As
background, we note that chapter 35 of the Water Code requires the Texas Commission on
Environmental Quality ("TCEQ") and the Water Development Board to designate priority
groundwater management areas ("PGMAs") across all major and minor aquifers of the state. TEX.
WATER CODE ANN. § 35.007(a) (West Supp. 20ll)? A PGMA is defined as "an area designated
and delineated by [TCEQ] as an area that is experiencing or is expected to experience critical
groundwater problems." [d. § 35.002(12) (West 2008). Once it designates an area as a PGMA,
TCEQ must recommend that the area be covered by a groundwater conservation district ("GCD")
and take steps to help effectuate the creation of a GCD or the addition to an existing GCD. [d.
§§ 35.008(g), .012(b) (West Supp. 2011). Under chapter 35, once a PGMA has been designated by
TCEQ, the commissioners court of a county in a PGMA is authorized to adopt water availability
requirements. [d. § 35.019(a) (West 2008). Specifically, the statute allows the commissioners court
to "require a person seeking approval of a plat required by Subchapter A, Chapter 232, Local
Government Code, to show" compliance with the water availability requirements and to show "that
an adequate supply of water of sufficient quantity and quality is available to supply the number of
lots proposed for the platted area." [d. § 35.019(b)(1) (footnote omitted). Your questions relate to
the county commissioners court's authority to adopt water availability requirements.
ILetter from Honorable Allan Ritter, Chair, House Comm. on Natural Resources, to Honorable Greg Abbott,
Tex. Att'y Gen. at 1, 4 (Oct. 11, 2011), http://www.texasattorneygeneral.gov/opin ("Request Letter").
2Although "Commission" is defined as the "Texas Natural Resources Conservation Commission" in Water Code
section 35.002, TNRCC has since been renamed the Texas Commission on Environmental Quality ("TCEQ").
The Honorable Allan Ritter - Page 2 (GA-0935)
You first ask "[ w]hether a county commissioners court may enact a groundwater management
ordinance under Texas Water Code, Section 35.019 or Texas Local Government Code, Section
232.0032 applicable to the whole county." Request Letter at 4. At the outset, we note that while you
use the phrase "groundwater management ordinance," no such language is found within section
35.019 of the Water Code. TEX. WATER CODE ANN. § 35.019(a) (West 2008). Instead, that
provision gives counties only limited authority to adopt "water availability requirements" governing
new applications for subdivision platting under Local Government Code chapter 232, subchapter A.3
[d. § 35.019(a)-(b). Using the water availability requirements, a commissioners court may then
require a person seeking approval of a plat to prove "that an adequate supply of water of sufficient
quantity and quality is available to supply the number of lots proposed for the platted area." [d.
§ 35.019(b)(1)(B). Significantly, section 35.019 does not give a county general management
authority over groundwater. Thus, we utilize the Legislature's narrower language of "water
availability requirements" in answering your request. 4
You indicate that some entire counties fall within a PGMA, while other counties have only
a portion of their territory included in a PGMA. Request Letter at 2. For example, "the
southwestern portion of Travis County is included in the Hill Country PGMA," while the remainder
of the county is not included in any PGMA. [d. You therefore ask whether a county is authorized
to extend regulations that are promulgated pursuant to its section 35.019 authority "to areas within
the county that have not been designated as a PGMA created under Texas Water Code, Chapter 35."
[d. at 4.
Subsection 35.019(a) states:
The commissioners court of a county in a priority groundwater
management area may adopt water availability requirements in an
area where platting is required if the court determines that the
requirements are necessary to prevent current or projected water use
in the county from exceeding the safe sustainable yield of the
county's water supply.
TEX. WATER CODE ANN. § 35.019(a) (West 2008). When construing a statute, we look to the plain
and common meaning of a statute to determine the Legislature's intent. Harris Cnty. Hosp. Dist.
3Chapter 232 of the Local Government Code, titled "County Regulation of Subdivisions," outlines required
county platting procedures. See TEX. Loc. GOy'TCODEANN. §§ 232.001-.107 (West 2005 & Supp. 2011). Under those
procedures, in certain circumstances an "owner of a tract of land located outside the limits of a municipality must have
a plat of the subdivision prepared if the owner divides the tract into two or more parts." Id. § 232.001(a) (West 2005).
The commissioners court of the county where the land is located must approve the plat if it meets the requirements of
chapter 232. Id. § 232.002.
4Purthermore, you ask only about a county's general authority under this provision, and nothing in this opinion
should be construed as addressing or approving any specific county regulation. To do so would require a factual inquiry
into the nature and application of a county's water availability requirements, which this office cannot perform.
The Honorable Allan Ritter - Page 3 (GA-0935)
v. Tomball Reg'l Hosp., 283 S.W.3d 838,842 (Tex. 2009). Within subsection 35.019(a), the phrase
"in a priority groundwater management area" modifies "commissioners court of a county." Thus,
this statutory provision serves to limit which counties may adopt regulations under that section. TEX.
WATER CODE ANN. § 35.019(a) (West 2008). The later phrase "in an area where platting is
required" modifies "water availability requirements" and therefore limits the territory where the
counties can impose regulations pursuant to section 35.019(a). Id. While the plain language of the
statute limits counties' authority to areas where platting is required, the Legislature did not limit the
application of water availability requirements to the boundaries of the PGMA. Furthermore, the
statute provides that the purpose of the water availability requirements is to ensure that the water
supply "in the county" is sustainable. Id. Thus, based on the plain language of the statute, the
Legislature authorized counties to apply section 35.019 water availability requirements to areas that
are both within and beyond the boundaries of the PGMA, as long as platting is required in those
areas of the county. The statute does not authorize counties to impose water availability
requirements in areas where platting is not required.
Next, you ask "[w]hether a county commissioners court may ... enact water availability
requirements with respect to surface water, in addition to groundwater." Request Letter at 4. When
construing a statute, we look to the statute as a whole and analyze it in its context, not in isolation.
Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex. 1998). While
section 35.019 itself generally authorizes counties to promulgate "water availability requirements,"
the Legislature did not specify whether those requirements can be applied to both surface and
groundwater. However, section 35.019 falls within subtitle E of the Water Code, which is titled
"Groundwater Management." TEX. WATER CODE ANN. § 35.019(a) (West 2008). Further, the
statute provides that counties can apply section 35.019 requirements only in "priority groundwater
management areas." The purpose of PGMAs is to "provide for the conservation, preservation,
protection, recharging, and prevention of waste of the groundwater." Id. §§ 35.019(a), .001
(emphasis added). In contrast, the regulation of surface water is governed by a separate title of the
Water Code, wherein section 35.003 explains that "[t]he laws and administrative rules relating to
the use of surface water do not apply to groundwater.,,5 Id. § 35.003. Given the statutory context
of section 35.019, we conclude that a commissioners court is not authorized to enact water
availability requirements governing surface water.
In your third and fourth questions, you ask whether a county commissioners court may enact
water availability requirements under section 35.019 "after TCEQ has initiated a process to create
a groundwater district pursuant to Texas Water Code, Sections 35.008-35.009," and whether
regulations adopted by a county commissioners court under section 35.019 continue to be valid "if
a groundwater district is created to cover the same territory" over which county regulations would
apply. Request Letter at 4. Section 35.019 grants a county commissioners court limited authority
5Chapter 11 of the Water Code places the regulation of surface water in the hands ofTCEQ. TEX. WATER CODE
ANN. § § 11 .021 (a) (West 2008) (explaining that the "water of ordinary flow, underflow, and tides of every flowing ri vel',
natural stream, and lake, and of every bay or arm of the Gulf of Mexico, and the storm water, floodwater, and rainwater
of every river, natural stream, canyon, ravine, depression, and watershed in the state is the property of the state"); 11.121
(requiring a person to obtain a permit from TCEQ prior to appropriating any state water).
The Honorable Allan Ritter - Page 4 (GA-0935)
to adopt "water availability requirements" regulating new applications for subdivision platting in a
designated PGMA after first determining that doing so is "necessary to prevent current or projected
water use in the county from exceeding the safe sustainable yield of the county's water supply."
TEX. WATER CODE ANN. § 35.019(a) (West 2008). However, when it enacted section 35.019 the
Legislature did not prohibit the county from exercising its limited authority in instances where a
groundwater district has been or is being created. [d. § 35.019.
You note that Water Code section 36.0015 "provides that groundwater conservation districts
are the preferred method of groundwater management rather than county regulation of the same."
Request Letter at 3. Again, we emphasize that section 35.019 does not give a county plenary
groundwater management authority but instead provides only limited authority to adopt platting
requirements in certain instances. While section 36.0015 provides that groundwater conservation
districts "are the state's preferred method of groundwater management," the Legislature did not
address county platting requirements in that section. TEX. WATER CODE ANN. § 36.0015 (West
2008). Thus, while the Legislature stated a general preference for groundwater district regulation,
that general statement does not prohibit county platting regulations that were expressly authorized
by the Legislature elsewhere in the Water Code. Furthermore, no language in chapter 35 of the
Water Code indicates that the Legislature restricted a county commissioners court from continuing
to impose its regulation after a groundwater district is created. See id. §§ 35.001-.020 (West 2008
& Supp. 2011). If the Legislature intended such a result, it could have amended the statute to limit
the commissioners court's authority accordingly.
In your final question, you ask whether the newly-amended Water Code, section 36.002,
limits or revokes some of the county's regulatory authority under section 35.019. Request Letter
at 5. Section 36.002 of the Water Code states, in relevant part:
(a) The legislature recognizes that a landowner owns the
groundwater below the smface of the landowner's land as real
property.
(b) The groundwater ownership and rights described by this section:
(1) entitle the landowner, including a landowner's lessees,
heirs, or assigns, to drill for and produce the groundwater below the
surface of real property, subject to Subsection (d), without causing
waste or malicious drainage of other property or negligently causing
subsidence, but does not entitle a landowner, including a landowner's
lessees, heirs, or assigns, to the right to capture a specific amount of
groundwater below the surface of that landowner's land; and
(d) This section does not:
The Honorable Allan Ritter - Page 5 (GA-0935)
(1) prohibit a district from limiting or prohibiting the drilling
of a well by a landowner for failure or inability to comply with
minimum well spacing or tract size requirements adopted by the
district;
(2) affect the ability of a district to regulate groundwater
production as authorized under Section 36.113, 36.116, or 36.122 or
otherwise under this chapter or a special law governing a district; or
(3) require that a rule adopted by a district allocate to each
landowner a proportionate share of available groundwater for
production from the aquifer based on the number of acres owned by
the landowner.
TEX. WATER CODE ANN. § 36.002(a)-(b), (d) (West Supp. 2011). This section was amended during
the past legislative session and became effective September 1, 2011.6 You suggest that because
section 36.002 does not expressly recognize a commissioners court's authority to create water
availability requirements, the newly-enacted statute may serve to preclude counties from exercising
authority granted under section 35.019. Request Letter at 3-4.
Generally, we are required to construe statutes so as to harmonize them with other laws, if
possible. In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 311 (Tex. 2010). The Texas Supreme
Court has discouraged statutory repeals by implication. Acker v. Tex. Water Comm 'n, 790 S.W.2d
299,301 (Tex. 1990). Under the court's Aker decision, a statute is presumed to have been enacted
by the Legislature with complete knowledge of the existing law and with reference to it. Id. While
section 36.002 does not expressly affirm the authority granted to counties under section 35.019,
nothing in the plain language of the statute generally prohibits a county commissioners court from
adopting water availability requirements. TEX. WATER CODE ANN. § 36.002 (West Supp. 2011).
Because the Legislature elected not to limit counties' regulatory authority previously granted by
section 35.019, a county in a PGMA is not generally prohibited by section 36.002 from exercising
its limited authority to adopt water availability requirements for purposes of platting. However, in
adopting water availability requirements, a county must account for the rights granted by section
36.002, and we recognize the possibility that a county's water availability requirements could
infringe on those rights. Whether a specific county's water availability requirements comply with
section 36.002 or other provisions of the Water Code will require a fact intensive review appropriate
for a court, not this office. See Comm' rs Court of Titus Cnty. v. Agan, 940 S. W .2d 77, 80 (Tex.
1997) (noting that a commissioners court order is subject to judicial review by a district court for
abuse of discretion).
(,Act of May 27,2011, 82d Leg., R.S., ch. 1207, § 1,2011 Tex. Gen. Laws 3224,3224-25 (codified at TEX.
WATER CODE ANN. § 36.002).
The Honorable Allan Ritter - Page 6 (GA-0935)
SUMMARY
Water Code section 35.019 allows counties in a prIOrIty
groundwater management area to adopt water availability
requirements governing new applications for subdivision platting
under Local Government Code chapter 232, subchapter A. Pursuant
to that section, such requirements may be applied to any area in an
authorized county where platting is required. Section 35.019 does not
limit the application of the water availability requirements to the
bOl;lndaries of the priority groundwater management area.
Under section 35.019, a commissioners court is not authorized
to enact water availability requirements with regard to surface water.
The Legislature did not limit counties' section 35.019
authority to instances where a groundwater district has been or is in
the process of being created. Water availability requirements lawfully
adopted under section 35.019 apply regardless of the existence of a
groundwater conservation district.
A county in a priority groundwater management area that
determines that water availability requirements are necessary to
prevent current or projected water use in the county from exceeding
the safe sustainable yield of the county's water supply may adopt
water availability requirements without violating Water Code section
36.002. Whether a specific county's water availability requirements
comply with section 36.002 or other Water Code provisions would
require a fact intensive review that cannot be answered in an attorney
general opinion.
Very truly yours,
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chair, Opinion Committee
Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee