Judges: JAMES D. \"BUDDY\" CALDWELL, Attorney General
Filed Date: 3/22/2011
Status: Precedential
Modified Date: 7/5/2016
Dear Mr. Conyer,
You have requested an opinion of this Office regarding what "procurement" procedures, if any, the Sabine River Authority ("SRA") must follow, prior to entering into a contract or agreement which provides for the sale, utilization, distribution, or consumption of water (over which the SRA has jurisdiction or control) to entities located outside the boundaries of the State of Louisiana ("State"). The SRA, as an agency and instrumentality of the State, has a unique legislative history which has been detailed in numerous opinions of this Office.1 However, your inquiry stems from a bidding process matter described in a report of the Louisiana Inspector General ("LIG") dated November 23, 2005.2 Although the details of the LIG matter do not directly relate to your current opinion request, that matter does serve as the background for the reason why you have requested this opinion.
The LIG report specifically stated:
SRA used RFP [request for proposal] guidelines as specified in the Louisiana Procurement Code, La.R.S.
Pursuant to the questions that you presented regarding this finding by the LIG, this opinion provides you with: (1) an explanation of the relevant statutes authorizing the SRA to enter into contracts or agreements for the sale, utilization, distribution, or consumption of water within its jurisdiction; (2) a brief recitation and analysis of laws of general applicability in our State, including the Procurement Code, Public Bid Law, Public Lease Law, and laws involving the sale of surplus property; and (3) the procedure to be used by the SRA for entering into contracts for the sale, utilization, distribution, or consumption of water (over which the SRA has jurisdiction or control) to entities located inside and outside the boundaries of the State.4 SABINE RIVER AUTHORITY
La.R.S.
shall have the power: (3) To make and enter into contracts, conveyances, mortgages, deeds or trusts, bonds, and leases in the carrying out of its corporate objectives . . .;(9) To do all things necessary or convenient to carry out its functions; (10) To conserve, store, control, preserve, utilize, and distribute the waters of the rivers and streams of the Sabine watershed including but not limited to all waters flowing through the Sabine River Channel and Diversion System.
With regard to contracts or agreements that specifically provide for the sale, utilization, distribution, or consumption of water, La.R.S.
(16) To enter into any and all contracts and other agreements with any person, real or artificial, any public or private entity, any government or governmental agency, including the United States of America, the state of Texas, the Sabine River Authority of Texas, the state of Louisiana, and the agencies, bureaus, departments, and political subdivisions thereof, which contracts and other agreements may provide for the sale, *Page 3 conservation, storage, utilization, preservation, distribution, or consumption, whether within or without the state of Louisiana, of the waters over which the Authority has jurisdiction or over which the Authority has legal control; however, the written concurrence of the governor shall be required for any contracts and other agreements which provide for the sale, utilization, distribution, or consumption, outside of the boundaries of the state of Louisiana, of the waters over which the Authority has jurisdiction or control.5
The latter law not only authorizes the SRA to independently enter into contracts and other agreements that provide for the sale, conservation, storage, utilization, preservation, distribution, or consumption of water within its jurisdiction to entities located within or without the territorial boundaries of the State, but it also provides a very specific method for entering into contracts with entities outside the boundaries of the State. As quoted above "any contracts and other agreements which provide for the sale, utilization, distribution, or consumption, outsideof the boundaries of the state of Louisiana, of the waters over which the Authority has jurisdiction or control require the written concurrence of the governor."6
As explained in previous opinions of this Office, the SRA's statutory authority and independence makes it a unique governmental entity.7 In further support of this notion, La.R.S.
[t]his Chapter shall be full, complete and independent authority for the performance of all acts herein authorized, and no other statute or legislative act shall be construed to be applicable to the carrying out of the powers herein granted unless herein expressly so made applicable.
In La. Atty. Gen. Op. No. 97-0287, which also involved the SRA, this Office asserted that "[r]arely in our law do we find such a sweeping grant of independent authority to an agency of the state." Therefore, while appreciating this delegation of "complete and independent authority for the performance of all acts" within the authority of the SRA, we must now consider the effect of the general laws affecting the purchasing, leasing, and sale of public property by public entities in our State. *Page 4 PROCUREMENT CODE, PUBLIC BID LAW, PUBLIC LEASE LAW, THE SALE OF SURPLUSPROPERTY, AND OTHER RELEVANT STATE LAWS Procurement Code
In considering your inquiry and specifically what "procurement procedures" the SRA must follow to sell water to out of state entities, it should be noted that Black's Law Dictionary defines "procurement" as "[t]he act of getting or obtaining something or of bringing something about."8 While the Louisiana Procurement Code (La.R.S.
Public Bid Law
In addition to the Louisiana Procurement Code, Louisiana also has public bid statutes. The Louisiana Public Bid Law, La.R.S.
Louisiana Public Lease Law is set forth in La.R.S.
Sale of Surplus Movable Property
Generally, any surplus movable property of the State, or of any board, commission, agency, or department of the State, can only be sold through the Division of Administration on its behalf, and then only at public auction after appropriate advertisement or by compliance with the Public Bid Law provided in La.R.S.
La.R.S.
With regard to the administration and supervision of lands, waterbottoms, and facilities owned or leased by the State, La.R.S.
Given the increased interest in the withdrawal of surface waters in our State, the Legislature recently enacted Act
Act
La.R.S.
A. As provided by this Chapter and except as otherwise provided by law, a person or entity may enter into a cooperative endeavor agreement to withdraw running surface water as described in this Chapter . . . Unless otherwise provided by law, all cooperative endeavor agreements to withdraw running surface water, and any assignment of such agreement, shall be approved by the secretary as provided in this Chapter. No provision contained in this Chapter should be construed as a requirement for any person or entity to enter into any cooperative endeavor agreement to withdraw running surface water . . .
B. No agency or subdivision of the state otherwise authorized to enter into a cooperative endeavor agreement to withdraw running surface water, or assignment of such shall do so unless the said agreement is in writing, provides for fair market value to the state, is in the public interest, and is contained on an uniform form developed and prescribed by the State *Page 7 Mineral and Energy Board and approved by the attorney general. Fair market value to the state shall include, but not be limited to, the economic development, employment, and increased tax revenues created by the activities associated with the withdrawal of running surface water. No such cooperative endeavor agreement to withdraw running surface water shall be valid unless and until such agreement is approved by the secretary following the submission of an application for approval, which the secretary shall develop and prescribe.
C. Unless otherwise provided by law, the secretary is authorized to enter into any cooperative endeavor agreement to withdraw running surface water, provided that any such agreement complies with the prohibition against gratuitous donation of state property by ensuring that the state receives fair market value for any water removed, and the substance of the agreement is contained within a written cooperative endeavor agreement as provided for in Article VII, Section 14 of the Constitution of Louisiana.
A. Except as otherwise provided by law, the Department of Natural Resources shall be the state agency charged with managing and monitoring the implementation of all cooperative endeavor agreements to withdraw running surface water or assignments thereof . . .18
In considering that La.R.S.
However, because DNR holds the authority to enter into cooperative endeavor agreements for the withdrawal of running surface water for the majority of the State, it is *Page 8 advisable for the SRA to discuss any agreements which provide for the sale, utilization, distribution, or consumption of water within the SRA's jurisdictional boundaries with DNR to ensure that all State entities are consistently ensuring that "the natural resources of the state, including . . . water . . . [are] protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people," as required by La.Const. Art. IX, § 1, also known as the "Public Trust Mandate".
In interpreting the Public Trust Mandate, the Louisiana Supreme Court in Save Ourselves, Inc. v. Louisiana Environmental ControlCom'n,
[i]t is the well settled law of this country that a state holds title to land under navigable waters within its limits and that the title is held in trust for the people of the state that they may enjoy and use the waters free from obstruction or interference. Illinois Central R. Co. v. Illinois,
Therefore, because both the DNR and SRA are obligated to comply with the Public Trust Mandate while executing their separate statutory duties, this Office advises the SRA to collaborate with DNR with regard to any agreements which provide for the sale, utilization, distribution, or consumption of State-owned water.
PROCEDURE TO BE USED BY SRA PRIOR TO ENTERING INTO A CONTRACT ORAGREEMENT WHICH PROVIDES FOR THE SALE, UTILIZATION, DISTRIBUTION. ORCONSUMPTION OF WATER WITHIN ITS JURISDICTION
While much of the law and history provided above is of no consequence to the actual procedure to be used by the SRA for entering into any contracts and other agreements which provide for the sale, utilization, distribution, or consumption of water with the SRA's jurisdictional boundaries, the review above is necessary to answering your question.
Given the sweeping grant of independent authority to the SRA by the Legislature for the purpose of entering into any contracts and other agreements which provide for the sale, *Page 9
utilization, distribution, or consumption of water within its jurisdictional boundaries, and the non-applicability of Procurement Code, Public Bid Law, Public Lease Law, it is the opinion of this Office that the procedure detailed in La.R.S.
Therefore, pursuant to La.R.S.
CONCLUSION
Pursuant to La.R.S.
Yours very truly,
JAMES D. "BUDDY" CALDWELL ATTORNEY GENERAL
BY:__________________________ DANIEL D. HENRY, JR. Assistant Attorney General
JDC/DDH/jv