ifotmrrbla A. C. Spencer 

Executive Directo$ 

OpLlon No. WW-97 

Texas State Soil Caimbrvrtion Board Ro: Jr the State Board of Water 

Temple, Texas, Engineers, under the State Iawr 

rcguitrd tn approve wawrahed 

Dear Mr. 8pePcrr: 

plans and the ,dcstgn and speciflcatioar for individwl structures 

in the pbn 7 

With respect to your letter dated March 20. 1957, which wa 

quota ill part as followa: 

“1. If:@ Water Control sad Improvement District, 

organized under Texas Law is co-sponsor and contracting 

agency. for a, Watershed Protection and Flookl kavkatlon 

Project 8s rathbkized under Put&c Law’.564, Ack df tba 

83rd Congiebs. es amended under Public Law 1018, Acts 

of the 84th C,ongrecln, and 

*a. &art of easements and rights-of-way, contract rdminirtrrtioa at&d operations’ and matntenance 

is financid by bonds issued by the district,, or 

*b, Above costs are financed by contributions 

to the $istricf by individuals, groups, municipel)ties 

or counties, or 

%i Chat of e~semeate akd rights-of-way arid 

ebntract, administration are d$atcd to the dirrtrki 

and (ljbonds are issued, or (3) annual kx revenue 

is used to finance operation ind maintenance costs, 

. 

is tsu State Brprrd of Water Engineers, under State Laws 

required to,appk&e watershed plans rnd the design and 

rpeciNcations for indlviduai structures in the plan? 
*a. If a county serves es co-sponsor and con3tecting 

agency and 

. 

“a. The county gine’r& funds are used tp pry, : _ 

coots of easements end rights-of-way, contrnct ad-. 

minirtratien and operations and maintenance, or 

“b., &+a1 ad valorem taX funda ore used for 

8bOW colh, or 

“c.. All easemente and rights-of-way ere donM&, 

wi& the county paying costs of contract adminlrtr~tha 

and apardoa end maintenance, 

18 the State Board of Water Engineers, under State Lrr* 

t*~ulmd to gtp@ve wderrhod plans and the dkei@i ra8 

IS(rctficaiions for individua,l structures in the plan? 

-3. If a soil conservation district is sponsor and 

comtr8etlng l gcacy 8nd 

,/-- 

‘e.. All costs of easements and rtghts-of-way 

~6: donatdd, wid chtrac% .adininistratton and operations and maintenance are financed out of distrtct 

fundr (no taxes or bonds), or 

“b, All of above costs are donated to the di&rlct, 

is the Stets Board of Water Engineers, under State J+we 

r.eqoired to approve watershed plans and the design and 

l pecificationo for individual, structures in the plan? 

‘Pnbllc Lew 566 as amended by Public Law 1018 #es- 

&tr thh’addttlon of~wrter storage apece to flood prrveatten 

ikroctures, provided, however, that no structures shall &ore 

more then 25,000 acre-feet and provided that in such casen 

the Fedare Government will pey the full cost of the structiurr 

a&lo-d for flood prevention with a muntcipality, individual 

or 8~~8 peying the additionel coat (including engineering 

eerytees) of m$er conservatton capecity. The water user 

woutd secure nec~eoeery weter storage.rights through the 

$tMr Btprd of Water Engineers. 
Jlonorable A. C. Spencer, Page 3 (~~-97) 

*The above being true: 

‘4. What effect would w &ddWm of mwatriprrl or 

irripdion,watw stor88e capreity to a flood wrt~retaxd- I ,. 

ing structure bavs on the qua&on of State Board of Water “. 

Engineers’ approval of,the over all watershed plan and 

darfgn of individual stiuctusea? 

9. Ia,tbs State Board of Water gnginesri, requjrad 

b9 law to approve the plan ad drrign of e d,rrtnrgr project 

plmn~d and conatructod by (1) # woktx control and impr@vW 

mat dlrtrfct, (8) aotl coneerv*ti@n dirtrict, or (3) county, 

with the technic&l and financial irrirtmtc of tha Soil Contirva$ton &rvisr furnlrhrd uad8.r Public Law 566, an anwaded, 

when tba eubdivieloa of Statb Oavernmant furnisher the e8or 

meats and rights-of-way, contract rdminirtrtitior, l $8rt of 

construction coats and operatie and mrint*inr %s p*ojecrt?“. 

.w,e tandrr $& following opinion: 

The beata inquiry psrtitning to the puerthq pugkd htnw Is -- 

what ere~ the dutia.i of the Board of Wadr Engineerr, h aqsrfairad by the 

Constitution of Tanas end ~Teuas Statutes, relative to the typea of ntructures 

compraheaded by Public Lawr 568 an,d 1018* ? 

The title and enacting clause of Public kw 566, as amended, * 

a@pra, la quoted as follow&: 

“To rdthortle the Scerekry of Agriculture to cooperate with dM.ee and local agencier in the plannfng and 

carrying out of works ai improvement for roil conBervatide, and for other purporbs. 

“Be it enactad by the Senate and House of Rapreaenbtives~ of the United States of Americ@ in Congrfsa 

.asremblcd, That erosion, flood water, and sediment dimager in th+ retersbedr of the rivers end streams of the 

United States, causing lose of lifa and damrpo td propartp, 

coutitute e menoce to the n8ttonal welfare; and that it is 

tlu WXASQ of Congress that the Federal GOvQrnment should 

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Honorable A, C. Spencer, Page 4 (WW-97) 

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@operate with status and their political subdivisions, 

soil or water conservation districts, flood prevention 

orcontrol districts, and other local public agencies for 

the purpose of preventing such damages and of, furthc7;; 

tn& the conservation, development,, utilization, a~nd disposal of water and thereby of preserving and protecting 

the Batton’s land and water resources.” (Emphasis 

supplied) 

Article 7472t, V.C.S., places certain duttes upon tbe Board of 

Water Engineers with re,spect to federal projects affecting public waters in 

Texas. This article provides that the Board shall hold hearings in the same 

manner as In the case of hearings held on applications for permits to appropriate $tate waters. In determining the feasibility of the federal project, the 

Byrd fs required by stat&s to consider the following: (a) Effect ‘of such 

federal project on wakr users on the stream: (b) the public intersst to be 

served;. (c) development of dam sites to the optimum potention for water conservation; (d) integration of such federal project with other water conservatton acttvtties; (e) pro&&ion of the State’s interest in the Texas water resources; (f), engiqeer.ing, practicality’of the f&era1 project, including cost of 

construction and maintenance. 

Tka provtstoas of Article 7472e are cumulativa of other ~statutes 

relating to public waters tn Texas and provides a particular type of hearing 

before the Board of Water Engineers for federal projects affecting such public 

wators. It does not repeal or modify other statutes placing mandatory duties 

upen the Board of Water Engineers. While it is clear that under Subdiviston 

6 of the!Ac$ the specific type of hearing provi,ded in Article 7472e is not required of projsets dev$opad in cooperation with the Secretary of Agriculture 

under. the watershed pttikction and flood prevention acts, the subdiviston 

clearly provides no examptfon of any federal project from the Board.8 jurtsdiction conferred by other akkks. Therefore, an examination of the.ae staG 

rites is ahcasrary to a determination of your questions. 

I 

BOND ISSUES 

Except in cases where preliminary bonds are authorized, (Article 

7880-~31.; V.C.S..), before bonds are issued, the Board of Water Engtneera has 

a statutory duty of passing upon plans by (a) water improvement dktrick 

(Arttcle 7799, V.C.S.); (b) water control and improvement districts (Article 

7880-139); and (c) fresh water supply districts (Articles 7936 and 7799). These 

sktuteolplace a definite responsibility upon the Board to make a thorough 
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Honorable A. C. Spencer, page 5 (WW-97) 

iawstigetton of proposed improvements before apprWk# .baMis. Thk 1s 

trw wbetbsr the bond proceeds are used only for purchase of right-of-way 

or fiood eesements, or for such purports as well as for payment fOr the 

structures involved. See Hopkins County Levee Improvement District Nc: 1, 

et al., v. Smith, et al., 266 S.W. 800, error ref. ‘&therefore, except for proper 

expenditures of preliminary bond funds, in each situstion described in your 

questions involving the issuance of bonds by such water districts, coarpliance 

with statutes requiring Board approval of plana is required. 

Counties are giwn statutory ruthorlty to isme bonds for the 

creation of drainage districts. Article 8097, et seq., V.C.S., and the Attorney 

General is required to approve these bonda, Articles Bl32, 6136a, V.C.S. 

Howewr, there is no statutory requtrement that the Board of Water Engineers 

approve plans of such districts. 

APPROPRIATiONS OF WATER 

Artlclr 7492, V.C.S., providea: 

“Every psraon, association of persons, publtc or priwtc 

corporation, politics1 su~iviston of the Skk, agency of the 

Strte or of tlk United States, whmshall, after this Act ,ehail 

kke effect, desire to acquire the right to appropriate, for the 

purposes skted in this chapter unappropriated waters of the 

Stzta, rhsll, before commencing the construction, enlargement 

or extension of any dam, lake, reservoir or other storage work, 

or any ditch, canal, intake, head gate, pumping plant or other 

distributing works, or performing any work in connection with 

t&s storage, taking or diversion of water, make an application 

in writing to the Board for a permit to make such appropriation, 

#torage or diwraioa.” 

Article 7500a, V.C.S., provides: 

‘Anyone may construct on his own property a &m or 

reservoir to impound ‘or contain not to exceed two hundred 

(800) acre-feet of water for domestic end liwstock purposes 

without the necessity of securing a permit therefor,” 

Under these statutes a permit from the Boerd of Wakr Engtneeis 

b required before commencing construction of any itructure to ba utilized in 

tbs l ppropriatton of public waters for any of the beneficial uses outlined in “,;~ t: 

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~Rrmarable A. C. Spencer, Page 6 (WW-97) 

Arttcie 7470, V.C.S., except for 200 acre-feet reservoirs for livestock and * 

domestic purposes constructed on privats property. Therefore, a determinetion of whether the structures contemplated by Public Laws 566 and 1018 

aft& an appropriation of water is required. 

Even though these structures are designed to utilize water under 

c.trcumstances which would constitute an appropriation of water wit&in ths 

mean&g of the Texas statute, no appropriative permit is required unless the 

structure is located on a “watercourse” as that term is defined by the courts. 

Turner v. Big Lake Oil Co., 128 Ter. 155, 96 S.W.2d 221 (1936); Hwfs v. 

Short, 273 S.W. 785, fer.Ctv.App. (1925). The Supreme Court of Texas in the 

Hadfs v. Short case defiwd a watercourse ae follows: 

‘When it is said that a stream in order to be e natural 

watercourse to wkkh water rights attach must have bed. banks, 

a current of water, and a permawnt source of water snppl7, we 

have only described in detail such physiographic and meteorolog-1 characteristics as make the use of the stream for irrigatton practicable. When it ts once shown that the waters of a 

stream are so confined and persistent in their course, and flow 

with such freqwncy and volume ,&at it is both practicable and 

valueble to irrigate therefrom, it is a stream to which w+r 

rtgbts attach.” 

As to the meaning of *source of supply”, tbe Court atited: 

“All authorities agree that a current of water is necessary, 

yat the flow of water need not be continuous, and the stream inay 

be dry for long pertods of time.” 

Generally, if the structure is not located on a~watercours~e, and ’ 

only differed surface waters are involved, no appropriative permit is required 

to beaeficielly uttlize diffused surface waters. Turner v. Big Lake Oil ~Co., 

Fer a detailed discussion of the holding in the Turner case, see Right@ ,‘~ 

we Surface Waters in Texas, Proceedings, Water Law Conference, 

June 17-18, 1954. University of Texas Law School. 

Aa to structures to be located on “wakrcoursesar tb nec+rLty 

of an appropriative permit .depends on a number of c,hxunshtce~m which must 

be determined waler the bets of each case. If the strwturem te be coemtracted 

m&&r Public Laws 566 and 1018 store water, under conditioas other then tbooe 

.wmpted by Article 75008, we are of the opinion that appropriative permits 
-M&O A. C. 6pencer, -pa 7 (~~-97) i 

l m requtred rince the l $or of a wage t r conrtttutnr a n l ~pproprWion*. we 

qu&e $IuWhlao, Selected Problemr h the Law crfawr Rigbtr in the fert. 

k&c, Pub* 418, U.S.D.A., at P. 324: 

*T&e etoragc of water IO a means of mokiq l prtag flood 

flew~ ayailablt for late oeason use, when the direct flow of 

*&earns is usually low, and of carrying watef aver from pars 

of abundant prccipttatton to supply the ddficicncies of subseqwut 

draw@ soasone. It is a memo of conservation of water 81 well 

l o l feature ti aood protection; hoace appropriations may be 

mnde for &wage us well as for direct use of water. Tbe etorage 

ta d m,suke a meaaa ,%a an end--&a application of watar ta beneficial am. qach am the t?rtgWm of land, ot tha parrtng of weter 

area@ a pleat for the pwratlon of slectriccrl energy.” 

!Eka Supreme Court of California has hell that the rtorage of rota? fer ‘fbod 

c@ntrOl, ,equaliution and stabiliution, of flow end future uee” is l mong the 

bftofei uses of water for ah ich an l pptoptiatton may and muet be made., 

13 Ca!.Od 4g4, 90 Pec,gd 531 (1939). Accord: Moore 

140 Pac.2d 292, 802, 22 Cal.2d 725 (1943r;‘-- 

. C. Wash., 42 Fed.Supp. 459, 468. 

Prom bur correspoadenca wtth you under the dates, of April 16 

rJ 19, 1957, we tmderetand thet the rtrwturor contemptted by Public Lewa 

w end 1018 are pttmartly flood water retarding rtructurer rether then 

rtcraga l tructarea befag incapable of storing more than 200 acre-f&d of 

-2~ without modtftcation, and that ne we is made of the water retarded. 

w wat$r being automatically roleared am rapidly as t&e drum c&awl 

will carry it ~tthout flooding. ‘F 

& 

Accordtng to Hutchins, Selected Problems la tL I&r of Water 

oq~r, a,uch flood water tetirdiu& strwtww do *et inF or&kattky cantwwpl*tod by approprtattotn 8trl&oa. 10 

*Their purpore is to regulate flood flows, not to stow 

waCt for later use; and whils they necessarily withheld water. 

)he detention ia for bai,ef periods. Thta ta e benrfictel purpoea 

{n the interest of land conservation afid flood protection, but 

k aat auoh a use of water as is ordinarily c~@t#$btsd by the 

appropriation statutes. The purpose of the structure is to benefit the public, and not to acquire an exclusivs right to the flow 
B~oporabla A. C. Spencer, Page 8, (WW-97) 

’ 

of a ipecific quantity of water for the eole uao of an individual 

appropriator or group of appropriators. In thio case, the wata? 

is not wan&d at all.’ 

An examination of Article 7470 indicates no legislative intent 

&a$ tba retardation of flood flows without any storage or baneficial uaa for 

the purposes stated therain is in@uded withtn the purpoacs for which an ‘ 

appropriativa permit may and must ,k obtainad. 

We therefore coaclude that the flood retarding feature of the :~ 

structures contemplated undtr Public Laws 566 and 1016 deea not constU~& 

an appropriation wtthtn tba meaning of the Texas statute aad that no appropriattw perm,it ia nquirad for thie parpose alone. 

Our holdiag that an appropriative permit is not rtquked for the 

eoas$ructto~ of flood tatarding structures by the politldal subdiviabrs of ke 

8tata auntloaad~‘ln your letter ta aot to be ln~rprttad as a holdiaq that no 

a-r&y froth thb Stata t8 necessary to obstruct the flow of a public watorcouaa when no appropriation is effected. The public right and d&y to cooserw and develop public wattrs vested in the State by the Texas .COtWitdiO& 

Artkle XVI, Saction 5,9a, and the Stati’s ownership of euch waters., Article 

7467, V.C.S.., miy well require that permission to obstruct a watercourse be 

obtaiaad from the Stete even whm.tttle to then bed of the wattrc.ourse Ls not in 

.tha State. .Ln this, opialoa we haw.asaumed that the statutory l nth o rolder tty 

whleh each of the political aubdivisioas menttoaed in your lettar operates la-’ 

cludas the authority to obstruct publtc watercoursea for flood control purpekseei 

l-forever, these structures not only retard flood flows ~bat are 

designed to provide up to 200 acre-foot of water’storage ia tba l edtmentaxy 

pool. We ate advised that when the structures are bull& the uoe of the sedb 

mantary pool for livestock arid domqatic purposes by the kndowura as wad 

aa PM for silt storage is contemplated. From what has been raid above it ta 

apparent that utader these ctrcumrtancts an approprtatlva pdrmit is required 

unJem* the water storage provided is excepted by Article 75008, V.C.S.. permWtlng tha constructton on one’s own property of a dam or reservoir with 

capactty up to 200 acre-feet for iivestock and domestic purposes without an 

approprtative permit. 

The only question concerning the applicatioa of tM8 axamptioo 

to the circumatanccs outlined tn your letter relates to the requiremeet tbait 

the dam or reservoir be iocated on 8neId *own. property. This reqairamant 

of ownership of the land by the owner of the structure necessarily prohibits 

the location of structures which would otherwise be within the 7500a axtmptioa across streams where the State of Texas has title to the bed of the stream. 
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Honorable A. C. Spencer, Page 9 (WW-97) 

The beds of all navigable streams, including those made navigable 

by virtue of Arttcle 5302, V.C.S., are the proparty of the State. Stste of Texas 

v. Bradford, 121 Tex. 515, 50 S.W.2d 1065: Manry v. Robieon, 122 Tax. 213, 

56 S.W,.2d 438; Diversion Lake Club v,, Heath, 126 Tax. 129, 86 S.W.?d 441. 

Whethtr the State owns the bed of the stream at a particular location under 

Article 5302 Is determined by whether the stream or tributary tn question has 

a n l vtrage width from cutbank to cutbank of thirty fctt from its mouth to the 

location in question. Mot1 v. Boyd, 116 Tex. 82, 286 S.W. 458; Diversion Lake 

Club v. Heath, m; Heard V. Town of Refugio, 129 Tex. 349, 103 S.W.2d 728; 

Stste v. Bradford, supra. 

Article 5414a, V.C.S., commonly known as the Small A,ct, validated 

certain pstsnts on lands lying across or partly 8cros.s watercourses or nsvigable l trtama by granting and relinquishing certain ltmited rights ,to previous 

patenttoe of such lands. Section 2 of this Act reads in part: *. . . provided 

that aothing in this Act contained shall impair the rights of the gsneral public 

and tba Stste la the waters of streams or the rtghtr of ripartsn and appropr,isti# owners in the w8k.w of such etreama ,II 

, . . . Tht Supreme Court of Texas 

in State v. Bradford, m, construes the above quoted rsservation to the Stste 

and public of the waters of the streams involved in the Small Act ss including 

-sll things neceeeary to the practicable and l ubstanttal use of and enjoyment 

of tk thtngs reserved. It carries with it the power to construct dams or other 

worka upon or across the bad of the river in order that tht public might enjoy 

tha rights of irrigstion or other use of the watsrs.Y 

In some limttad situations, the State hss title to stream beds 

which do not meet the test of Article 5302. Prior to the enactment in 1837 

of what is now Article 5302, the Spanish and Mexican laws with respect to 

watorcoureee were in affect. Under these laws the waters of all streams, 

regardless of their width, were reserved to the State. Heard v. Town of 

Ret&o, eupra; Ststs v. Bradford, m, at page 1073. 

We rtcogniae that it is most difficult in many caioe to dettrmino 

whether the etraam bad is owned by the State at a particular location, and 

whothar, therefore, Article 750011 applies; howewr. we undtretand that moat 

of tbaoa flood retarding structures will be built on small tributsriee high up 

in tb# wate)ehed. . Stnce thh thirty foot average width test of Article 5302 

applies only from the mouth of the particular trtbutary tn questton, the doterminati?n may not be too complex. In situation8 wbare tht stream bed ir not 

tha property of ths State. Article 7500s would exempt ths appropriativt permit 

requirement: (a) where the governmental body owning the structure owns the 

property or has an easement for the etructure, (b) the storage feature of the 
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tlonorebb A. C. Spencer, Page 11 .(WW-97) 

watarshed pXans and the design and spe~ifkatione 

of individual etructures in such plans where bends 

are issued by a water ,tmprovement district, water 

contro& snd improvement district. or fresh water 

supply district for purpkcs other than those for 

which preliminary bonds mey be properly iseued. 

The Board of Water Eaptneers is not required to 

approve county bondb issued for, creating a drainage 

dimtrict. . . 

Very truly yours, 

WILL WILSON 

Attornev General of Tere 

Hb:tiw 

APPROVED: 

OPIRION COMMITTEE : 

W. Grrdy Chandler , Chairmen 

I, Arthur Sendlin 

Richard Stone 

B. II. Timmine, Jr. 

BY 

Noughta Br&e, Jr. 

Aaaistent 

IEVIIEWED FOR THE ATTORNEY GENERAL 

BY: Gao. P. Blackburn 

*Wmtermhad Protection and Flood Prevention Act (P.L. 566, 83rd Cow.; 

69 Stat. 666), as amended by the Act of August 7, 1956, (P.L. 1018, 84th 

Cw.; 70 Stat. 1088). 

: 

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