### EE ATIXBESTJETY GENERAL P %FXKAS

Honorable Joe G. Moore, Jr. Opinion No. M-2 ExecutiveDirector Texas~ Water Development Re: May the Texas Water DevelopBoard ment Fund be used to provide Austin, Texas financial assistance for constructionof recreational facilitieswhich are proposed in conjunctionwith a municiDear Mr. Moore: pal dam and reservoir project?
You have requested an opinion of this office as to whether the Texas Water Development Fund can 'be used to provide financial assistance for construction of recreational facilitiesproposed in conjunctionwith amunicipal dam and reservoirproject. The town of Clyde, in Callahan County,Texas, seeks financial asslstante from the Texas Water Development Board in order to construct a municipal water supplyproject. Engineeringplans submitted to you provide primarily for a municipal water supply but suchplans also propose incidental constructionof recreational facilities such as picnic tables, boat ramps,water supply lines, sewage facilities, access roads and parking areas, so as to allowpublic access and use of the water reservoir for recreationalpurposes. Where any suchproject Is otherwisewithin the purview of the Texas Constitutionand laws governingyour State agency, and where the Texas Water Rights Commissionhas resolved that such incidental Improvementsare reasonably related to optimum development of the reservoir site,your agency can approve a project which includes the above described recreational facilities. Authority to provide financial assistance for construction of 8 municipal water reservoirproject includes the power to make optimum developmentof the reservoir site, and this includes the power to construct recreational facilities reasonably related to a complete optimum development of the water reservoir site. Acts of 

### 1965,59th Leg., p. 587, Ch. 297 effectiveper election of November 8, 1966; Sec. 12, Article 6280-9, V.C.S. Whether recreational facilities are proper to be included in such a project is a fact question for the exercise of discretionby the legal entityHonorable Joe G. Moore, Jr., Page 2 (M-2)

seekingyour financial assistance,but the Texas Water Rights Commissionand your Board must each exercise administrative discretion as to inclusion of such facilities In the project by approval or disapproval of project plans. By this it is notmeant that your agency can require such recreational facilities to be included In a project, but It is within your discretion to lend State financial assistance to a legal entity desiring to include such facilities In its plans. Section g(b) of Article 8280-9, supra, defines the fund available for State assistance:

"(b) The "TexasWater Development Fund," hereinafter called "Developmentl?und,"shallbe a revolving fund intowhich there shall be deposited the proceeds derived from the sale of the Texas Water Development Bonds, and such othermoneys as provided In this Act, and which funds shall be used upon the terms and conditions set out in this Actfor the purpose of aiding andmaking funds available to the various political subdivisions for projects and purposes authorizedunder this Act, and upon the terms and conditionshereinafter set out." Section 11, of Article 8280-9, supra, states:
"Sec. 11 Until December 31, 1982, the Texas Water Develooment Fund shall beused bv the

Section 2(f) of Article 8280-9, supra,defines the word "project"as follows:

-4-. .

Honorable Joe G. Moore, Jr., Page 3 (M-2)



## “(f) "Project'means any engineeringundertaking or work for the purpose of the conservation and development of the surface or subsurfacewater resources In the State of Texas, including the control, storing and preservation of its storm and floodwaters and the waters of its rivers and streams for all useful and lawfulpurposes by the ac-- quieition, improvement, extension. or con- &ructlon-of hams, reservoirs,and other water storageprojects (Includingunderground storageprojects), filtration and water treatmentplants Including any system necessary for the transportationof water from storage to points of distribution, or from storage to filtration and treatment plants, including facilities for transporting water therefrom to wholesale purchasers, by the acquisition, bypurchase of rights in undergroundwater, by the drilling of wells, or for any one or more of suchpurposes or methods." (Emphasisadded) Recreation as a purpose consitutes a useful, lawful and beneficialuse of water. Empire Water and Power Co. v. Cascade Town Co., 205 F-123 (5th Cir., 1913). u s v. a ar, 4 S 1 162u;%'d 4 State v. Red Rlver'Vaildy C00, 1 fl.M.207, W il V 1 1 sec. 696, hrihe%re ,p. lbb. 2 Kinney, 2d Ed., in Monierey County Flood Control and Water ConservationDi&l.ct v. Hughes, 20 C 1 Rutr. 252, 257, recreational facilitieswere held to beaDGoperly inciudkd-inwater projects as a public use, wherein the court stated:

"Inview of the fact that recreationaluses are clearly related and incidental to themalntenante and operation of a dam and reservoir for flood control and water conservationpurposes, and also recognizingthe straw public interest In such recreationaluses as shown by leglslaflve declarationsand approval,we believe that under the act the power of eminent domainwould include the taking of property for such related and incidentaluses."

-5-Honorable Joe 0. Moore, Jr., Page 4 (M-2)

This officehas heretoforeheld that a multiple-purpose water reservoir constructed by a public district createdunder the Texas Constitution (ArticleXVI, Section 59), can lawfUlly impoundwaters for recreationaluse;we held such a district could expend tax funds to finance andmaintain such a reservoir. Attorney General'sOpinion C-436, (1965). Texas laws speclfitally provide for use of water for "recreationand pleasure". Article 7470, V.C.S. With the above generalprinciples inmind, and considering the statutorydefinition of the word "project"by the Legislature, recreationalfacilities eueh as you describe can properly be included as a part of any water reservoirproject because the words of Article III, Sections 49c and @d, and Article XVI, Section 59, are to be given a broad and liberalmeaning In order to effectuate the purpose of the constitutionalprovisions of which they are a part. Brown CountyW.I.D. No. 1 v. Austin Mill & Grain Co., 135 Tex. 140 138 1 Improvementsanduse of sukun rkreation will materlalls aid the State in Derformlna Its duts as a trustee of surfacewkters for the benefit of all-of the " people., Goldsmith & Powell v. State, 159 S.W. 2d 534, (Tex. Civ. App.1943, error'ref.)
Your Board is specificallyrequired to receive a finding bv the Texas Water Riahts Commissionwhich Includes a certlfication that “theprojkt contemplates optimum development of the site of the project". Article 7477 ddb At'

etx..
. 296, page 583; Sec. 12 0; i%%," L80~g.CVfCYsf. keasonablkess of natu?e,~ekientand cost of recreational lmprovementswhich are proposed in water storageprojectswhere State financial assistance is sought is a fact questionwhich both Texas Water Rights Commission and your agency must decide when consideringthe administrative steps necessary to project approval. Reservoirprojects are generally 'built so as to Include some recreational facilities as a part thereof. Recognition of this fact by our State Legislature Is found In Subsections (10) and (ll),of Section 21, of Article 8280-9,V.C.S., which reads In part as follows: :,

~~~~)p%tical subdi

The Boardmay enter Into contracts

visions of the State,with agencies of the State, and with the United States

-6-. . .

Honorable Joe G. Moore, Jr., Page 5 (M-2)

(11) The Attorney General approve as to legality:

. . tracts by the Board for the operation of recreational facilities." (Emphas&sadded) These subsectionsconstitute a le lslative construction of the meaning of Article III, Sections fi gc and 49clof the Texas Constitution. 82 C.J.S. 788, 791, Statutes, Sec. 360; Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269 (1944),153 A.L.R. 1054, Point 9.

1 S UM M A"R Y

Texas Water Development Board Is authorized by law to determine feasibilityof any water reservoirproject for State financial assfstante;where proposed recreational facilities are included in plans su'bmitted and are found reasonableby suchBoard, suchmay be approved as a part of the water project.
Ve

neral of Texas Prepared by Roger Tyler Assistant Attorney General

-7-Honorable Joe 0. Moore, Jr., Page 6 (M-2)

APPROVED: OPINION COMMITTEE (_ Hawthorne Phillips, Chairman W. V. Geppert, Co-chairman Harold Kennedy Pat Bailey David Longoria
STAFF LEGAL ASSISTANT: A. J. Carubbi, Jr.

-8-