. !



# The Attorney General ofTexas June 7, 1978 JOHNL.HILL Attorney General
**Mr.**Harvey Davis Executive Director Opinion No. H- 1177 Texas Department ofWater Resources 1700N.Congress Avenue Austin, Texas Re: Jurisdiction ofTexas Water Commission regarding approval of plans for the construction of drainage facilities in Harris County Flood Control District. Dear Mr. Davis: You ask whether plans for adrainage project which have been approved by the Harris County Flood Control District must also be approved by the Texas Water Commission pursuant to section 16.238 of the Water Code. The drainage projects you inquire about are to be constructed by entities other than the Harris County Flood Control District. Section 16.238 ofthe Water Code provides inpart: (a) No person, corporation, or levee improvement district may construct, attempt to construct, cause to be constructed, maintain, or cause to be maintained any levee orother such improvement on, along, ornear any stream of this state that is subject to floods, freshets, or overflows so as to control, regulate, or otherwise change the floodwater ofthe stream without first obtaining approval of the plans by the commission. In Attorney General Opinion H-328 (1974) we considered whether this provision applied to the construction oflateral drainage facilities. Westated as follows: Only those levees or improvements need be approved

which are constructed, or maintained on, along or near one of the described streams ‘so as to control, regulate, or otherwise change the flood water of the

P. 4754Mr.Harvey Davis - Page 2 (H-1177)

stream.’ Whether
... this requirement extends to the construction or improvement of
... lateral drainage facilities depends on the facts in a given situation, and resolution of this question should at least initially be made by the [Water Development] Board subject to judicial review. Security State Bank ofSanJuan v.State, 169S.W.2d 554(Tex. Civ. App. - Austin 1943,err. ref’d., w.o.m.) Attorney General Opinion H-328 (1974). Weconcluded that the plans for lateral drainage facilities should be submitted to the Board for its determination of the relevant fact questions. In Attorney General Opinion H-328 we also determined that the Harris County Flood Control District was subject to the requirements of section 16.238. The Legislature subsequently enacted the following amendment to the statute creating the Harris County Flood Control District:

3A. Projects proposed to be constructed by the Harris County Flood Control District, other than levees and structures related to levees, shall be under the control of the Commissioners Court acting as the governing board for the District. The findings ofthe Commissioners Court asto the plan of work, the necessity, the location, and the type of improvement of a project covered by this section shall he final and not subject to review. Acts 1975, 64th Leg., ch. 593, at 1877. Weconsidered this amendment inAttorney General Opinion H-915(1976)and determined that the Harris County Flood Control District was no longer required to submit its plans for projects other than levees and structures relating to levees to the Water Development Board. Webelieve the language of section 3Aisclear. It applies only to projects “to beconstructed by the Harris County Flood Control District” and not to projects to be constructed in Harris County by other persons or corporations. We do not believe the District’s approval ofanother entity’s drainage project converts it into aproject “to be constructed bythe
...District” or otherwise exempts it from the requirements ofsection 16.238. The plans for such aproject must also be submitted to the Department of Water Resources for an initial determination as to whether the construction will “control, regulate, or otherwise change the floodwater of the stream” and thus be subject to section 16.238. SUMMARY Adrainage project to be constructed byanentity other than the Harris County Flood Control District is not exempted

P. 4755Mr. Harvey Davis - Page3 (H-1177)

from section 16.238 of the Water Code merely because the plans have been approved bythe District. Very truly yours,

Attorney General ofTexas APPROVED:

DAVID M.KENDALL, First Assistant

C. ROBERT HEATH, Chairman Opinion Committee jsn

p. 4756