R-508

OlWXCE OF 

## THE ATTORNEY 

# GENERAL

Auwrm, TEXAS

PRICE DANIEL *~TcmNEYGENERAL July 28, 1947

Hon. E..V. Spence, Chairman Board of Water Engineers 302 West 15th Street ._, Austin, Texas Opinion No. V-319

Re: Sale of stored water by Lower ColoradoRlver Authority for irrigation and manufacturing
use outside the Authority's statutoryboundaries

Dear Sir:

The question and facts upon which our opinion Is requested are stated In your letter of May 23, 1947,
as follows:

"Your opinion is requestedwith respect to the appllcatlonof 3. T. Suggs, Box 3, Lake Jackson,Brazoria County, Texas, now pending before the Board, to appropriateand divert 40,000 acre-feetper annum of the unappropriatedwaters of the State of Texas, the same to be diverted from the,,Colorado

River and the San Bernard River for the purpose of utilizing 35,000 acre-feet for Irrigationand 5,000 acre-feet for manufacturing. The annual diversion from the sources of supply to be on the basis~ of 10,000 acre-feet from the ColoradoRiver of which 2,000 is .to

be for manufacturing, and 30,000 acre-feet from the San Bernard River of whhich

3,000 should be for msnufacturlng.

"

. . . "The questionarises - hasthe Lower ColoradoRiver Authority the right to sell water to Mr. J. T. Suggs for irrigationand-.



### 102 Hon. E. V. Spence - page 2 : v&g

manufacturing

purposes, aa to use, distributeand sell the same outside the boundaries of the District, and in this case the lands being in the Brazos Valley."

We have examined the applicationof J. T. Suggs which states that any permit grantedby the Board to divert water from the ColoradoRiver will be contingentupon the ability of the applicant to purchase stored water from the Lower ColoradoRiver Authority. The only waters, therefore,subjectto this opinion, are those of the Colorado stored by Lcm. The question restated is whether or not LCRA may sell legally stored water to a purchaserwho will deliver it for ~irrigatlon and manufacturing
use beyond the boundaries of the District. In addltion, and in order to ,fully answer your question, it till be necessary to decide whether a purchaser who has bought stored water from LCRA may, by following the procedure outlined in Article 7590, V. C. S.,
remove the water so purchasedbeyond the watershed.

The various conservation and:reclamation

districts, IncludingLCRA, have been createdby special acts under ArticleXVI, Sec. 59 of the Constitution, and have only those powers expresslygranted or reasonably implied from the acts upon which their creation depends. The solution to your problem must be determined by ascertaininglegislativeIntent as expressed in these acts.

LCRA.was created by Acts 1934, 43rd Legislature, 4th C. S Ch. 7, as amended. Its boundaries
are coincident.kth the boundariesof Blanco, Burnet, Llano, Travis, Bastrop, Fayette, Colorado,Wharton, San Saba, and Matagorda Counties. The powers given LCRA are set out in Section 2 of the Act creating ft and in so far as these powers touch on the subject under lnvestlgatlon it appears that LCRA Is authorized to control, store, and preservewithin the boundaries of the district the waters of the Colorado and its -i6utaries any useful purpose and use distribute a& sell the same wlth5.n the bounckes of ihe district; develop and generatewater power and electric energy within the boundariesof the district and distribute and sell water power and electric energywithin or without said boundaries;aid In foresti watershed area of the Colorado and aid in preventionHon. E. V. Spence - Page 3 - V-319 

### 103

of soil erosion and floods within said watershed area; acquire by purchase or otherwise any property, real, personal or mixed, within or without the-boukdarles of the districtnecessary or convenient to the exercise of the nowers conferredunon it. Rezardless of nermits - held; the district is not permitted to use fo; lrrlgation purposes any water unless expresslyauthorizedby subsequent

permit grantedby the Board of Water Rngineers; provided,however. that nothing shall prevent the district from selling for IrrigationpurposeswlthIn the boundariesof the district any water impound by it under authorityof law. Its use of water for the purpose of generating hydro-electric

power Is subordinated~andmadi?

inferior to the rights of any citizen of Texas. or bodies nolltic. to build dams and Impound flood-waters

within the watershed of the Colorado and its tributariesfor domesticpurposes and for the purposes of irrigationand any permit held by It is subject to the limitationsindicated.

We find In the Act creatinaLCRA an exnress directive to use, distributeand zell within she boundaries of the district the waters which are controlled, stored and preservedby It. It is also provided that regardlessof the permits which it holds the district Is-requiredto obtain a subsequentpermit from your Board In order to use any but impoundedwaters for lrrigation, It being expresslyprovided that nothing shall prevent the sale of water mounded under authority of law for irrigation within the boundaries of said dlstrlct. LCRA may distributeand sell water power and electric energy wlthln or without its boundaries,and Is to aid in forestingand In the prevention of soil erosion and floods within the watershed area. It may acquire within or without its boundariespropertynecessary to the exercise of its powers. The Act indicates to us a carefullyconsideredattempt by the Legislature to localize certain functionsand to generalizeothers.
~Turning

now to the other Conservationand Reclamation Acts, all of which are compiled under Special Acts beginningat page 536, Vol. 21, V. C. S., we briefly review the provisionsof these Acts in so far as they touch on the subject under Investigation.

Brazos River Conservation and ReclamationDistrict. Its boundaries are coincident wlth the watershed of the Brazos. It is authorized to control and employ the flood, storm and unanpropriatedflow waters of said~.p~4 Hon. E. V. Spence - Page 4 - V-319

district in order to provide for the preservation of the equitablerights of the people of the watershed area; the conseTPation of water essential for domestic uses of the watershed; for the itigation of' lands in the watershed area; the equitabledistribution of waters to the regionalpotential requirements for all uses, and to make availablewaters in the developmentof commercialand Industrialenterprisesin all sect,Tons

of the watershed.

Central ColoradoRiver Authority. It is composed of the.Countyof Coleman. It is authorizedto use. distributea,nd

sell its waters within the boundaries of the district. Water power ana electric energymay be sold witNn or without such boundaries. It Is directed to aid in preventionof soil erosion and floods nithin the watershed area. It may acqpireproperty necessary to the exercise of its powers, whether such propertybe within or without such district.
&uXlalupe-Blanc0

River Authority. Its boundaries are COinOident~wlth the boundariesof Hays; Comal, Quadalupe.Caldwell,Gonzales.Dewitt.Victoria.Kendall, R&igio and Calhoun Cou&es. It is authhrized-to use, distributeand sell Its waters within the bountiarles of the district;water power and electric energy to be distributed

and sold within or without such boundaries. It is to aid in forestingand in the.prevention of soil erosion and floods within the watershedarea. Propertynecessary to carry out its purposesmay be acquiredwithin or wIthout the district.

Lower Neches Valley Authority. Its boundaries consist of Jefferson.Iiardin. Tiler and nortions of Liberty and Chambers Counties. -It is ac‘corded power of control and employmentof the waters of the Neehes in order to preserve the equitablerights of the people of the watershed area: for irrigationof land in said districtand land without said districtbut within said watershed; for the equitabledistribution of waters to the regionalpotential requirements for all uses, and to make availablewaters in the developmentof commercialand lndustrial~enter- 'prisesin all sections of the, watershed of the district.

Lower Conch0 River Water and Soil Conservation Authority Its boundaries consist of Conch0 County. ft Is au&orized to sell water power and electric ener-Hon, E. V. Spence - Page 5 - V-319

gy within and without the district3 to provlde,forthe. Irrigationof lands In the district and for the equitable distribution

of waters of the Conch0 and Colorado Rivers to the regionalpotential requirementsfor all uses, and to make availablewaters in the development of commercialand industrialenterprisesin all sections of the watershed area of the district.

Nueces River Conservationand Reclamation District. Its boundariesdescribeby metes and bounds the watershed area. It has power of, control and employmentof the waters of the Nueces for domesticuses of the people of the watershed; for irrigationof land In the watershed; for the equitabledistributionof waters to the regional requirementsfor all uses, and In order to make availablewaters in the developmentof commercial and tidustrialenterprises within the watershed.

PanhandleWater Conservation Authority Its boundaries consist of certainnamed counties alo& the Red, Canadian and Brazes Rivers. The District has the authority to distributeand sell water power and electric energy within or without its boundaries;to provide-for

, the Irrigationof lands In the watershed areas; pro-

..

vided, that such districtmay not use water for lrrigation unless It obtains a permit from the Board.ofWater Engineers, It being expresslyprovided,however, that nothing is to prevent the district from selling for Irrigation

within its boundariesany water impounded by it under authority of law, and to make available waters In the developmentof.commercial and Industrial enterprisesin the watershed area of the district.

Sablne-Neches

Conservation

District. Its boundaries originallyconsistedof certainnamed counties, but by amendment these boundarieswere extended to Include the watershed areas of the Sabine and Neches Rivers. It has power of control and employmentof the waters of these rivers for the preservationof the equitablerights of the people of the watershed; for

. irrigationof all lands within said watershed;development of commercialand~~industrial enterprisestherein, and to conserve such waters for the domesticuses of the people of the district,
Sulphur River Conservationand ReclamationDistrict. It boundaries consist of th
me Sulpkr River, e watershed area It may control and employ theHon. E. V. Spence - Page 6 -V-319 '.

P f:36

flood, storm and unappropriatedflow waters to preserve the equitablerights of the people of the watershed; to conservewater for essentialdomesticuses within the watershed; for the itigation of lands within the watershed; for the equitabledistribution of Its waters to the regional potential requirements for all uses, and to make available such water for commercialand industrialenterprisesin the watershed.

Upper Red River Flood Control and Irrigation, District. It Is composed of 3riscoe, Hall and Chlldress Counties. It has power to control, store and preservewithin the boundaries of the district the' waters of Prairie Dog Fork and Red River for the reclamationand irrigationof the lands of the district and to use, distribute, and sell the same within such boundaries.
Upper-Guadalupe

River Authority. It is composed of the County of Kerr. It is authorizedto use, distribute and sell Its waters within the boundariesof the district for any useful purpose, and to acquire such property as may be necessary to carry out its purposeswIthin or tithout the district.

We find in these acts a more or less uniform insistenceby the Legislature to confinewithin the district's

boundariesthe sale generallyby it of stored waters and specificallysale by it of stored waters for manufacturing and irrigationuse; permissionto sell and distributeelectric energy and water power within or without such boundaries;a conservation

policy regarding foresting,flood control and soil erosion covering the watershed area; the power to acquire property necessary to carry out the powers of the districtwithin or without the boundariesof such district, and the delegation generally of a duty to preserve the waters for the watershed area In accordancewith regional potential requirements.

In the followingInstanceswe have found exceptions to the general policy discussedabove:
GuadalupeRiver Authority. Its boundaries consist of certainnamed surveys in Coma1 County. Its right toHon. E. V. Spence - Page ’ 7 -V-p9

control, store, sell and dlstribute,water Is acquired by approprlatlon

M.the,usual manner by ,petit from your:,Board

.andthe ,exerclse~of all privilegesobtained under such permits is subjectto the provisions of Chapter 1, Title 128, R. c. S., 1925, as amended, Since water la permitted to be moved beyond the watershed by Article 7590, R. C. S., 1925, which is a part of Chapter 1, Title 128, it would appear:~,~that the district may sell tom

a purchaserwho In turn might apply to your Board under said Article for a per&t to remove the mater so purchasedbeyond the watershed and beyond the district'sboundaries.
,. &ilf Water Supply Dlstrlct.,, Its boundaries consist 5?7tXson, &arn Be S an Patriclo aa Nueces Counties. It is.

spe%ioa%y &thorizea

authorized to sell water to towns, cities and other ~politlcal

subdivisionsIn the Stat6 e,of Texas, to private corporations and to indlvlanals, mtnl~l titnout n a&strlct. duals, rithin or without the district.

San JaCinto Conservation and Be&nation District. It is-bounded

b the watershed of the S J into cept for'the Co&y of Harris, As orip&$ e&EGd the Act creatj.ng

this'district

contains the usualpro) vlslons~

indicatedabove. However, by amendment,Acts 1941, page 769, the districtwas ~authorlzed to enter into any and all necessary and proper eontracts~wlth other agencies, districtsand bodiespolitic and corporateand others for the storage, conservation, utilization,transPortation and sale of lmpounded,waters.and electric power to cities, towns, .industrial sites, persons, firms and corporations

wlth%n or Mthout the boundaries of the district.
Upper-Colorado

River Buthorlty ThIsdIstrict Is comnosed of Coke and TomGreen C&nties.~ It is au-. thorized "to sell and distribute, water without the boundariesof the district to any municipalityfor domestic, municipal and irrigationpurposes, and to any person, firm, or, corporationfor municipalpurposes or irrigation,togetherwith the right to'~construct,fnmes, lrrlgat.tion

ditches,plpeltnes and storage reservoirs without the district for such purposes.

The fact that the Legislaturehas seen fit in bertaln cases to confine sal,es for manufacturdngand irrigation

use,tithin flxed boundariesbut has deviated from this policy in other cases, togetherwith an overall policy of localiiingcertain functionswhile-. A ,/.-,A



### 1108 Hon. E. w. Spence - Page 8 -.w-319’

generalizingothers, leads us to the conclusionthat only where sales beyond the district are expresslyauthorizedwere they intended to be permitted. It is our opinion that under its present act LCRA has no authority to distributeor sell its storedwater~foruse beyond MX boundaries.

In digesting the various conservation and reclamation Acts; we covered and consideredonly certain of the expresslygranted powers and functionsaccorded such districts. In most cases, these expresspowers are precededby a broad grant of authority to exercise, all powers and functions conferredupon such districts by general law and by the conservation amendment to the Constltutlonand that the grant of expresspower is not Intended to limit the generalpowers so conferred. Sections 1 and 2 of the LCRA Act (supra) are the sec- ‘tlons which confer upon it these generalpowers. In addition, It is usually provided that the Act shall be liberally construed. See Sec. 18, LCFtA Act (supra). We have donsidered these sections~w%th reference to the situationunder investigation but have been unable to find any purpose, functionor power conferredupon LCFU under the general law or by the conservation amendment to the Constitution,which would authorize It to sell stored waters beyond its boundariesin the face of an express directivethat it use, distribute and sell such waters within such boundaries.

If the district Is not authorizedto sell or distributewaters beyond its boundaries,then it necessarily follows that the Legislatureintended that these waters be used only within such=boundaries. To permit

a purchaser from such a district to distributeand use the stored waters purchasedby him beyond district boundarieswould nullify whatever purpose the Legislature had In mind In placing restrictions on sales by the district of such waters. We have covered at length the various conservation and reclamationdistrict acts because we believe that these,acts, with the exceptionsIndicated,show an overallpurpose by the Legislature to preserve for the benefit of the lnhabitants of these districtsthe waters stored by such districts and to permit a purchaser to remove such waters beyond districtboundaries would circumvent this purpose. It is. our opinion that a purchaser ,of stored waters under the present LCRA Acts may not distribute and use such waters ,forIrrigationand manufacturingpurposes beyond LCRA boundaries.

# I 109

Hon. R. V. Spence - Page 9 -V-319

In our opinion,ArtlOle 7589, V. C. S., declarlng it to be~unlawfulto remove water .beyond the
., watershed,Article 7590, V. C.&, providing a method by which water may be removed upon applicationto your Board, and Article 7591, V. C. S., making It a mlsdemeanor and providingpenalties for removingwaters> without Proper authority, have no appllcation.to the sltUatiOn presented. Msny of the districtsdiscussed. above consist of named countiesso thatthe overall boundarymayor may not be coincident with the ~watershed area. Whether the districtboundaries lie within
or without the watershed,:or ,whether

theses boundaries

are coincident

with the watershed, all of the special acts In questionhaving been enacted subsequentto ~' Articles 7589, 7590 and 7591, have the effect of creboating to the extent indicated in each act an exception to the general law stated in said Articles. See 25 R~. C. L.,

. p. 150, Sec. ifi'

929, 59 C. 'J.P. 936, Sec. 546, 39 T.J. 2, Harris Count

3 Drainage District No.12
=~*A~~sl,nCB~~(~~eAP~orn. App:) i2~S; W. 12) 35 s w (2) 118. Hunt

;&& and Fortinberryv:State (Corn. ~pp.)--283

S. W

. The,effect-ofthis exception Is two-fold; (lj making it lawful to use waters beyond the watershed where the boundariesof the district extend beyond such--- watershed,,and (2) except- from the.operation of Artlcle 7590 the waters involved in the spe&lal,actsin question to the extent lndlcated.ineach of such acts.

We find no decision in Texas on this question. The only related cases we have found are not in point, since in each a statute easted permitting removal of waters beyond districtboundaries. See San Jacinto River Conservation and ReclamationDistrict v. Sellers Ct. 1945) 184 S. W. (2) 920; Cameron County rovementDistrict No. 1 v. Danlels (T.C.A. S. W. 1066.

Outside Texas the few cases found are not in harmony. The rule laid down in Jenison v. Redf2el.d (Cal. sup. ct. 1906) 87 P. 26, involvingan irrigation district, confineswater strictly~todistrict boundaries,holding that the waters of such districts
are held in trust for their Inhabitantsand may not be used beyond district.bouudaries in the face of a statute restricting

use within such boundaries. On the other hand, the following cases, while announcing the rule laid down in the Jenison case, place an exception upon this rule, holding that if the rights of the lnhabitants of the district are not injured and if there

t-

## 110 Hon. E. V. Spence - Page 10 - V-319

5s a surplus of water, .the Clistrict

may furnishwater for use beyond Its boundaries. See,Yadenv,' Gem Irrl~ gation District (Idaho Sup. Ct. 1 2 $7 ) 216 P. Koch v. Colvln (Mont. Sup. Ct.'19 0 2 0; 10 7 P. ,(2 7 334, and Maclay, v. Mlssoula IrrigationDistrict 1931) 3 P. (2) 286. Mont. Sup. Ct..- In our opinion, the principlesannounced In these cases with regard to Irrigation'dlstricts do not necessarilyapply to conservation and reclamation

districts such as LCRA due to the broader purpose for which the conservation and reclamation districthas been created ,andthe more extensivearea over which this ,purpoae' extends. See Brazes River Conservation

and Reclamation

District v. McGraw (Tex. SUP. ct. 1936) 91 S. w. (.2) 670.

Under Its present Act (Ch, 7, Acts 43rd Legis. 4.th

C.S.1934, as amended), waters stored by the Lower Colorado River AuthorWy may not be distributed
or sold by,it for irrigationor manufacturinguse beyond the Authority's, boundaries. '.This

restrictioh~alsorelates to purchasersfrom the Autho-rity;

Yours very truly ~~

ATTORNRY WRERAL OT~>TRXAS 

# L-

. D. Pm&t, Jr. Assistant

.' ,:

RDPrbt APPROVED '..