Untitled Texas Attorney General Opinion

R-697
E 7rroRNEY GENERAL
0 EXAS
AUUTIN XI.TEXAS
September 10, 1947
Hon. E. V. Sperm, Chainsan
Board of Water Euglneere
302 Went 15th Street
Au&in, Texas Opinion Ho; V-372
Re: Sale of stored waters
by Brazos River Conser-
vation and Reclamation
District beyond the
Brazos watershed
Dear Sir:
Your letter of July,25, 1947, raises the fol-
lowing question for our opinion:
“Does the Brazos River Conservation and
Raclamation District have the power to
sell, deliver or contract to deliver
stored water outside the Brazes River
watershed? Has our Board any function
in this regard?”
The Brazos River Conservation and Reclamation
District was created, Acts 1929, 4lst Legislature, 2nd
cch s 4, ;iS;.vLEtSpage 22, Ch, 13, as amended. Title 128,
Its boundaries are defined by a metes
and b&nds dekGi&ion of th8 watershed of the Brazes
River except for the counties of Freestone, Leon, and
Madison (as smnded Acts 19.31, 1st C.S., Ch, 5, Sec. 1).
Its powers, $n so far as they touch on the question pre-
8ent8d, are eet out in Sectfons 2 and 3 of the Act, Sac-
tion 2 grants broad, general power and authorizes the
diatrlot to exercise all power conferred by the COnaerVa-
tion Aaendmnt to the Constitution, Article XVI, Sec. 59,
and by general law3 such,district to have “authority and
pow8r of control and regulation over ouoh storm and flood
waters of the Brazes River and Its tributaries as may be
exercised by the State of Texas.” Section 3 provides aa
followa :
“‘Sec. 3. The Brazes River Conservation
and Reclamation District shall have and be
- ,
HOG. E, v. Spence - Page 2 (No. V-372)
aerv:tlon and-beneficial utilization of
storm, flood and unapp??oprlated flqw waters,
the power of control and employment of such
flood, storm and unappropriated flow waters
of the raid district la the mannerand for
the particular purposes hereinafter set
forth.
“l(a) To provide through the only practical
and legal means for the control and the co-
ordination of the regiil8tionof the waters
of the watershed of the Brazes River and its
tributary streams as a unit.
'1 (b) To provide by adequate organization
and adminlstratlon for the preservatXon of
the equitable rights of the people of the
different sections of the watershed area in
the beneficial us8 of storm, flood and unap-
propriated flow waters of the Brazos River
and its tributary streams,
“8 (c) For stosiri, controlling and conserv-
ing storm, flood and unappropriated flow
waters of the Brazos River and its trlbu-
taries, and the wevention of the escape of
y of such waters without>``~_$xximum of
---.._ _ .,r
i&l14 servfceg for the prevention of devas-
tatTon 'ofX3nd~s from recurPent overflows,
and the protection of life and property in
such watershed area from uncontrolled flood
waters.
'r (d) For the conservatfon of waters essen-
tial for the domestic uses of the people of
the watershed of the Brazos River and its
tributaries, incYuding al1 necessary water
supplies for cities and towns*
"t(e) For the Irrigation of lands In the
watershed of the Brazos River and Its trib-
utary streams where irrigation is required
for agricultural production; and for the
equitable distribution of storm, flood and
. -
Ea. E. V. Spe8W - rage 3 (MO. V-372)
unappropriated flow waters to the regional
potential requirements for all w508. All
plur md all work8 provided by raid din-
tricta, and aa well, all worka whiah.may be
provided under authority of said district
regard to the necessary
%?=veP?F
aa potentla no6 s for water, by or within
the rerpeotive area8 constituting the water-
;p$z tEe Braeos River and ite tributary
.
“l(f) For the better encouragement and de-
velopment of drainage systema and provlsio~
for drainage of lands In the valleys of the
Brazer River and its tributary stream need-
lng dra%uage for profitable agricultural pro-
duction; and drainage for other lands in the
watershed area of the district requiring
drainage for the most advantageous u8e.
“1 (g) For the purpose of conservation of
all aoila against destructive erosion and
thereby preventing the lnareased flood men-
ace incident thereto.
“l(h) To control and make available for em-
ployment flood, storm and unappropriated flow
waters in the development of commercial and
Industrial enterprises in al.1 sectiona of the
,watershed area of the district.
“*(I) For the control, storing and employ-
ment of flood, storm and unappropriated flow
waters in the development and distribution of
hydra-electric power, where such use may be
economically coordinated with other and au-
perlor usea, and mbordlnated to the uses de-
clared by law to be auperlor.
?&)fl`` froE&and everv oumo8e for
upappropriated flow
waters when controlled and conserved may b
utilized In the performance of a useful. se:-
vice as contemplated and authorized by the
provisions of the constitution and the ~ubllc
policy therein declared.
‘l’(k) Nothing in this Act shall affect or
repeal Articles 7496, 7500A of the 1925 Re-
vised Statutes of 1925 as amended by Chapter
lion, E. V, Spence - Page 4 (Nod v-372)
128 Acts of ,the Regular Session of the 42nd
Legislature."
In our ginion No. V-319, addressed to you, we
considered the power of the Lower Colorado River Authority
to sell stored water for irrigation and manufacturing use
beyond its boundaries and concluded that its pxesent Act
did not confer thhis power. The Brazes Act was cited in
the course of that oplnlon as being illustrative of a type
of aot whiah contained no epeciflc authorization for sale
of waters outside the boundaries of the district. It now
becomes necessary to construe this act to determine wheth-
er the leglslatlve Intent therein expressed in general
terms authorizes sales of water for use outside the dls-
trlct under certain conditiona.
The Brazer Act and Lower Colorado River Act dif-
fer in some very material respects.
Se&ion 2 of each act sets forth certain general
powem. Im Sectlen 2 of the Brazes Act, there la no ex-
press llm.ltatlon upon the general powers therein set out,
The powers there granted are cumulative, Including all pow-
em ‘contemplated and Implied by the purposes of this pro-
vision of the Constitution, and as may be conferred by Gen-
eral Law, and the provfsions of this Act*" On ,the other
hand, Seotion 2 of the Colorado Act opens with the words
"Except as expoesaly limited by this Act", the District
shall have cedain general powers. Section 3 of the Brazoa
Act provides that the District shall have certain specified
v-
greatest practicable measure of the conservation a& bene-
ficial utfllzation of the storm, flood and unappropriated
flow waters of said District in the manner and for the par-
ticular purposes hereinafter set forth,”
By the terms of the Brazos Act, the part%cular
powers are granted in addition to the general powers, In
the Colorado Act, the general powers are limited by the par-
ticular powers. In the Colorado Act, the-o provisign
aorresponding to subsection (3) of Section 3 of the Brazos
Aat. In the Colorado Act, ther8 is no provision similar to
that of Section 4 of the Brazes Act, which provides that
the powers and duties of the Distriot shall be "taken sub-
ject to all legislative declarations of public policy In
the maximumutilization of the storm, flood atdunappropria-
ted flow waters of the Rrazos River watershed for the pur-
poses for which the District 1s crested, 8s expressed
Hon. E. V. Spence - Page 5 (Ho. V-372)
and indicated ln this Act, and subdect to the continuing
rtghte of mpe~siou” by the Board of Water Engineers.
In the Colorado Aot, there 1s a careful catalog
of the things that say be done by the Colorado Dlstrlct
“within the boundaries of the Diatrfct” and other things
that may be done “within or without the boundarleu of the
Di8trlotr” For Instance, subsections (a) and (b) of Sec-
tlon 2 of.the Colorado Act are a8 follows:
“(a) to control, store and meaerve.
jrithln-the boundaries of the Dletrict, the-
waters of the Colorado River and its tribu-
tories for any UB(?ful purpose, and to use,
dietribute and sell the same,
b
ok und for-=9any sue
snmwet
“(b) to develop and generate water
power and electric energy within the bound-
aries of ,the District and to distribute an6
sell water pow;;ea;d electric energy, wlth-
In ,or without oundarles of the Dlstx%ot,”
That distinction as to what may be done wlthln
the Dletrlct and beyond the boundaries of the blstrlct ie
carefully maintained through several of the aucceedlng sub-
sections of Section 2 of the Colorado Act. Ho such dis-
Unction le maintained In the statute by which the Brazoe
District was created.
Article 7590, V.C .S,, authorizea the Board of
Water Engineere, upon application, to Issue a permit after
notice and hearing, to take waters Prom one watershed In
this State into another watershed, Article 7471, V.C.S.,
determlnea the priorities to be given in the allotment and
appropriation of water. The Brazes Act 1s a special act
relating primarily to waters of that District, and It would
control over the statutes above mentioned in 80 far as It
is inconsistent with such statutes. 59 C!,J, 936, Section %
However, as relates to the flood, storm and unapproprlat-
ed flow waters which may be controlled and conserved, we
find that the Brazoa Act is not inconsistent with the
powers of the Board of Water %glneers as conferred by
Articles 7472d, 7525, 7528, 7589, 7590 and 7591, V.C.S,
In fact, Section 2 and Section 4 of the Act provide that
the Dlatrlct~a powers are subject to other Legielative A&e.
- .
Hon. E. V, Spence - Page 6 (No. V-372)
We accor?Lngly hold that the Board of Dlrec-
tors of the Brazos River Cctnservation and Reclamation
District in determining whether or not to enter into a
contract for the sale of excess stored waters shall give
primary regard to the necessary and potential needs for
water for the Irrigation of lands in the watershed of the
Brazos.Rlver and Its tributary streams for Irrigation and
domestic uses, and including all necessary water supplies
for cities and towns within the District, The Dlstrlct
would be authorized to sell for use outside of the water-
shed only surplus water If, as, and when available. Af-
ter a determination on the part of t!le District to sell
much surplus water for use outside of the wstershed, it
Is necessary for the one who desires to remove the water
from the watershed, whether it be the District or some
other person, to apply to the Board of Water Qglneers
for a rsmoval permit as authorized by Article 7590,,
V.C.S.
In passing "on the rights to be effected" by
the Issuance of such a permit, the Board of Water Engineers
shall take Into consideration, among others, the question
of whether the waters which the District proposes to sell
for removal outside the watershed is, In fact, surplus
water, and the further question of the preference and pri-
orities to which the residents of the watershed are en-
titled under Article 7471, V.C.S.: and the provisions of
the Act creating the Brazes River Conservation and Reola-
llUh&Qn Dirtrlet.
The permit which the Board of Water Engineers
may issue for the removal of water outside of the Brazbs
Blver watershed pursuant to ArtlLLe 7590, P,G,#+ $8 n&h-
~&gigmoTe than a 'remOv81 permit" subject to the tecR18 df
the ~oontract between the District and the~purchaser of
the YaBer, and such permit should afflrmatlveLly so state,
SUMMARY
The Brazos River Conservation and
Recl8matlon District has authority to seL%
surplus stored waters for use outside thh
District. Before such water is moved out-
r&de the watershed of the Brazoa River,
the peraon or agency desiring to make such
removal must obtain a removal permit from
the Board of Water Engineers, after notice
and hearing, In accordance with Article
7590., v. c. SC3 Acts 1929, 4lst Legislature,
, -
Bon. E. V, Spence - Page 7 (I?o. V-372)
Second c. s., Special Laws page 22, ch. 13,
as amended, being Title 126, ch. 8, note,
V. C. S. A&u. 7589, 7590 and 7591, V.C.S.
Very truly roum
.‘ATTOEUW QEHBlAL OF TEW
FD/wb/lh
.