EE ATIXBESTJETY GENERAL 

P %FXKAS 

Honorable Joe G. Moore, Jr. Opinion No. M-2 

Executive Director 

Texas~ Water Development Re: May the Texas Water DevelopBoard ment Fund be used to provide 

Austin, Texas financial assistance for 

construction of recreational 

facilities which are proposed 

in conjunction with 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 facilities proposed 

in conjunction with a municipal dam and reservoir project. The 

town of Clyde, in Callahan County, Texas, seeks financial asslstante from the Texas Water Development Board in order to construct 

a municipal water supply project. Engineering plans submitted to 

you provide primarily for a municipal water supply but such plans 

also propose incidental construction of recreational facilities 

such as picnic tables, boat ramps, water supply lines, sewage 

facilities, access roads and parking areas, so as to allow public access and use of the water reservoir for recreational purposes. 

Where any such project Is otherwise within the purview of 

the Texas Constitution and laws governing your State agency, and 

where the Texas Water Rights Commission has resolved that such 

incidental Improvements are 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 reservoir project includes the power to make 

optimum development of 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 effective per 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 discretion by the legal entity 
Honorable Joe G. Moore, Jr., Page 2 (M-2) 

seeking your financial assistance, but the Texas Water Rights 

Commission and 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 not meant 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 "Texas Water Development Fund," hereinafter called "Development l?und," shall be a 

revolving fund into which there shall be deposited the proceeds derived from the sale of 

the Texas Water Development Bonds, and such 

other moneys 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 and making funds available to the various political subdivisions for projects and 

purposes authorized under this Act, and upon 

the terms and conditions hereinafter set out." 

Section 11, of Article 8280-9, supra, states: 

"Sec. 11 Until December 31, 1982, the Texas 

Water Develooment Fund shall be used bv the 

Section 2(f) of Article 8280-9, supra, defines the word 

"project" as follows: 

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. . 

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

“(f) "Project' means any engineering undertaking or work for the purpose of the conservation and development of the surface or 

subsurface water 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 lawful purposes by the ac-- 

quieition, improvement, extension. or con- 

&ructlon-of hams, reservoirs, and other 

water storage projects (Including underground storage projects), filtration and 

water treatment plants Including any system 

necessary for the transportation of 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, by purchase of rights 

in underground water, by the drilling of 

wells, or for any one or more of such purposes or methods." (Emphasis added) 

Recreation as a purpose consitutes a useful, lawful and 

beneficial use 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 C 00, 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 Conservation Di&l.ct v. Hughes, 20 C 1 

Rutr. 252, 257, recreational facilities were held to beaDGoperly inciudkd-in water projects as a public use, wherein 

the court stated: 

"In view of the fact that recreational uses are 

clearly related and incidental to the malntenante and operation of a dam and reservoir for 

flood control and water conservation purposes, 

and also recognizing the straw public interest 

In such recreational uses as shown by leglslaflve 

declarations and approval, we believe that under 

the act the power of eminent domain would include 

the taking of property for such related and incidental uses." 

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

This office has heretofore held that a multiple-purpose 

water reservoir constructed by a public district created under 

the Texas Constitution (Article XVI, Section 59), can lawfUlly 

impound waters for recreational use ; we held such a district 

could expend tax funds to finance and maintain such a reservoir. 

Attorney General's Opinion C-436, (1965). Texas laws speclfitally provide for use of water for "recreation and pleasure". 

Article 7470, V.C.S. 

With the above general principles in mind, and considering 

the statutory definition of the word "project" by the Legislature, recreational facilities eueh as you describe can properly 

be included as a part of any water reservoir project because 

the words of Article III, Sections 49c and @d, and Article XVI, 

Section 59, are to be given a broad and liberal meaning In order 

to effectuate the purpose of the constitutional provisions of 

which they are a part. Brown County W.I.D. No. 1 v. Austin 

Mill & Grain Co., 135 Tex. 140 138 

1 Improvements and use of sukun 

rkreation will materlalls aid the State in Derformlna Its duts 

as a trustee of surface wkters 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 specifically required to receive a finding 

bv the Texas Water Riahts Commission which Includes a certlfication that “the projkt 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,~ekient and cost of recreational lmprovements which are proposed in water storage projects where 

State financial assistance is sought is a fact question which 

both Texas Water Rights Commission and your agency must decide 

when considering the administrative steps necessary to project 

approval. 

Reservoir projects 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 Board may enter Into contracts 

visions of the State, with 

agencies of the State, and with the United States 

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. . . 

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&s added) 

These subsections constitute a le lslative construction of the 

meaning of Article III, Sections fi gc and 49cl of 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 feasibility of any water 

reservoir project for State financial assfstante; where proposed recreational facilities 

are included in plans su'bmitted and are found 

reasonable by such Board, such may be approved 

as a part of the water project. 

Ve 

neral of Texas 

Prepared by Roger Tyler 

Assistant Attorney General 

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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. 

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