THEATTORNEY GENERAL 

OF TEXAS 

PRICE DANIEL 

ATTORNEY GENERAL 

AURTXN H. TEXAS 

ldsrch 11, 1947 

Board of Water Engineers Opinion No. V-82 

State of Texes 

Austin, Texas RG: Appropriated Water - 

change of purpose 

snd PlSCG of use and 

ths watershed quesQGntl~a~~i,:, tion. 

The‘questions refeed are stated in your letter 

of February 26, 1947, as f01lorGn 

"In 1936, the Boerd grented a permit to 

ths &SzoS Irrigation Company to change the 

UIG or G part or all of the i7atera epproprlated under PeraLt No. 1040 to wnufacturing or 

cenwcial USG. The question l rlaea - roplld 

t&G American Canal C~ompany bc aUthoPizGd under 

this 1936 permit to take and divGPt water for 

~niclpal a,nd fndustriaJ uSe outside of the 

boundaries of the o~igiaal Permit No. 1040 

without obtaining a permit from the Board; 

an@, itiPthGP, would thGp be permitted to carPy thb WSter So approprfatGd OUtzidG the dmlnage aPea of the Braeos River." 

We heve been furnished ulth the permit and a-z&dnota tbeleto UndGP whi@h e&&e Amerfoan Cenal Cotspany (Suce& to B~zoa Valley Irrfgation Co~peny) is ROW uring 

8-b vOt4P f3'OW thG bP4ZOG WiVOP, In 30 far as they 0411- 

aem thir 4pfaion, the rmr 

mm&d, 8-p to be these: 

p aa PGflGctGd by &&G pbslpit,'#p 

By ?anit lo. lOb3 3 drOul Septemb#r P7, 

l!m, the 

‘s 

8x4 of Wmter Engfakerr grantGd to 

,t@e Br4zoa ,elley Irpigatfon Compaq tht right 

to appro~iate 99,932 WP4-rG4t or water p4r 

~ldl r2~41 t&44 fkWpPPOpFg8t4d, VG~WP~ Or thG 

b W@ o m R lVGPj l t 0 2WtG of div4prl.m t3ot to OX- 

.OOGd 685 cubfo fGGt PGP SSCOnd Of tin, @P a4 

maah thepsof 88 U48y bb naoessery WhGB3 294nGPg4~f41- 

1~ used fm the frrigetfon of 49,966 acrea ef 

land, loaabd Fn Fort Bend County, The pem9it 
Board of Water Engineers - Page 2, V-82 

ves issued subject to certeln egreements 

made between the Irrlgatlon Company and 

third persons; which agreements are not 

meterlal to this opinion. 

On June 16, 1336, thG Board used~ 

.the following language in amending the 

origins1 p4rmit: "Now, thepefore, the 

&34Pd of water EwinGera for thG gt8tG 

or TGWS, does by these prGsGUt8 @'ant 

this GmGUdm5rit to PGnlt llo. 1040 hewtofoP i88UGd to the lb4koG V4114y Irri@tioa Oway, and hG~OGrWth the 

Bnzos Vnllrf IxM.gatlon Compsnj may GppropFiat and WG the water, OP any portioa of auah umtG*, allocated by said 

On Oaaeisbebel 18, 1941, ?ePmlt 1040 was 

sg~in amended. This amendment referred to 

thG BOBrd'a 4Otioa in $PGnting the origitvl 

pG=it snd to its action In gPsnting the 

l smwhaent at Saw 16, 1936 "to pemalt G4ld 

eapmly te rrr? a #e&him ar 811 of the waterm 

rysp*oprlrted the+WtideP r0r mrnufacturi~.and 

eomiaWcla1 9u~poaea" and then authorlasd %iW 

Bncoa VaZleJr Irrigation Company "to Ch8* 

the p$aai~ of use 0r G portion or all 0r thG 

water pelttre3 to be 49propriated under arid 

PO it MO. z@ko r0z,r -0 purpoaa 0f irrig4ttw 

44351 84mo of It*i%d I@oRt& QU$8idG the 

ltRiGPShR$?' $& ~O(RIF$I, @4lVG8tOti, Jt8PPi8 #arf 

I*% mid ~cwatt~tt, lti0isg 5;115 l CPGI 0r 

lrnd dea@rib#d tr the ark tar1 pmwlt vithln 

the mamaa Bfrer wa04*llh J still to bG iPrigated out of the o~iglnal l pproprlrtion. 

,~d mmit 0. lo 0, iha4 GrrGat 0r whiah warn 

OnSq 28 f942 the Board agein amend- 

.$G permit th* iip$ attoa cowany to irri 

ii 

to 

GotaId &he wrtwa Gd 3,328 0r thG .‘5,11 8GFG8 

'remaining la thG watarahsd under the 9FioP 

4tGGndm4nt, and lorvfag 1,787 8Cr~a of the 

original penit still within the Bnzoa River 

wet&rGhedL This amea4axtnt is aimlls~ in fo@E 
. 

Board of Wster Engineers - Page 3, V-82 

to the amendment of October 18, 1941. 

The question of the Boclrd's jurisdiction 4rml 

power to regulete and control change of use sad plsco *i 

use of water which has been appropriated sad put to bmaoficlsl us4 under permits issued by ths Board, h4d not bwen 

considered by the courts of thta Sixto until the owe of 

Clark v. Briecoe Irrigetioa Comprray, decldod F4brwm 19, 

1947, by the Austin Court of Civil AFperls in Opinion Ho. 

9588, aad not yet rep4rteds 

The f4cts of the Clark case sre these, The permit held by Brlscoe Irrigation Compsny authorlzsd approprietioa of 75,000 acre-fe& per annum for irrigation, mining and 

mllnicipa 1 US4 e Of this amount, 50,000 acre-feet ~4s 4lloceted for the purpose of irrigation, the remaining 25,000 4cre 

feet being ellocated for mining and municipal purposes. The 

25,000 acre-feet permitted for mining end mualc~pa1 use was 

not involved slaae it was never beaeficlally used 48 required to coeplete the appropriation theroof. The 50,000 

acre-feet allocated for irrigation was btneficially used for 

the length of time required by Article 7592, V.R.C.S., 40 

as to vest the title ppovfded for in thst article. Upon 

the Board’s denial of an application to amend the permit to 

substitute other speaffied lends f,or those desigaated la t& 

permit, and to change the purpose of use 80 aa to iaClUa4 

m+nFag, manufacturing and wafeipal, the irrigation oompsay 

sought a declaratory judgment to the effect that it had 

the inherent right, growing out of the right vested by reason of Article 7592, to change the purpose of us4 of the 

water from irrlgertion to other lawful uses, such right beiag f’pee of any regulation or control by the Board ao long 

aa the use wal 8 beneffcfel one authorized by law and did 

not result fn an Increased eppr4prirtion or t4kFng 4f 4 

greater quentitg of water then was authorized by the p4klt, 

or Impair the vested rights of other appropriators. 

After reviewing the aoaservatien amendment to th4 

Coartltution (Artlole XVI, Sea. 59-a) and the st8tUt4s d441- 

iw vlth the aubjwt, the Court expressed 3.ts oplal4n ta the 

f4'bl4wiag langwgrs 

YQeae statutory provisions cl44rly 

Invest the BwrU vith the power and duty to 

determine whether the wol for whloh th4 II)- 

plicatioa $8 srde moat the strtutory 4hjeativ4s, including that of befag in the public 

interest. Nsceasarfly the determinetloa of 

that lsruo iwoLves the exePci44 of 61 Sewad 

. 
Boerd of Water Eagiaeers - Page 4, V,82 

i 

.a 

and reasonable discretion. Nor is it aoatended thet the Board bea,not such discreMz in peasing upon 4a origia41 epplloae 

"Bvery cawidentlon for vesting such 

origiael discretion in the Borrd applies 

with squel foiwe for it4 exercise in 0184 of 

change of purpose OF pl800 of use, We therefore think there is impliait in these provisions of our laws, coastltutioasl and statutory, a veatiaC; in the Board of the continuing 

duty of suparviaion over the distribution and 

use of the publio watera of the State ao as to 

sea that the oonntitutioael and etstutory objectlvea sre ottrined, and CamyLng with it 

the requirement thrt aay aubeteatial oh4nge In 

uae or plroe Qr use a& ruthorlzed in the origiual permlt,,aust Moe the approval of the Board. 

Any other construction might easily result in 

defeat or' airaumveatiea of the objootives of 

the conservation laws. 

n . . . 

“If4 hold that authority of the Boerd is 

essential to authorize a ohaage in us4 or 

place of use from thet authorized in the permit." 

B&used on Clerk Y. Briscoe Irrigation Compeay, 

sup14, it la our opinion that the American Ceael Cwpsay 

msy not use the water appropriated by it under Its present 

permit for muaioipsl purposes without the uauel application 

~,. to the Board.. 

. 

. 

,, 

We are uaebls to se4 a,dlatFaction as regards the 

c'henge f'rox e manuracturing end oommeroiel ua4 as stated in 

the psrmit to the Fndustrial ~44 referred te in your letter. 

It is provided in Artloli 7’170, V,A.C.3,, tliet "the ,epproprietlon. of vater aust be for irrigation, mining, mllllag, 

manufacturing, the developmsnt of power, the construction 

and operation of waterworks for cities sad towns, or for 

Stock Mlsing." And, in fixing priorltisa between usea, 

Article 7471, V.A.C.S., after grsntiag Ho. 1 priority to 

domestic. and pluaiclpol use, gives No, 2 priority to msnufacturiag, whioh is described as, "weter to be used in 

processes designsted to oonvart materiels of e lower order 

of value into rorp heviag greater usability and commer4ial 
Boer3 of Ueter Engineers - Page 5, V-82 

value end to include w8ter necessary for the d6velopatent of electric power by means ethsr than hgdroelectrio.” No prwision fa made in the statutes rel4tLve 

to industrial use es such. For the pwpoee of this 

opinion lndustrie2, menufaeturhg anb commevsypal will 

be considered 8s synonymous 4nd me8n the seme thing 

as the msnufacturing use referred to Zn the st4tute.8. 

The situation as regards the wnufscturlng 

use under conslderutian here Is distlngulsh4ble from 

that lnvolved In the Clerk case in tw reap6ots: (1) 

Here, the original plrrmit haa alrewlg been em6nd6d by 

the BM?rd t0 @&low 8 #8nuf8Cturing use of 811 0r sny 

porticln of the wster allocated to the original pezwrllllt. 

In the Clark ers6, this erendment te the permit u&a 

sought snd dented. (9) Although a4t m4terMl to t& 

decishm, the frets there shaw thet 4 44rMln grew+ 

tion of ths total slloa8tian ~8s set @ride to mitirq 

and mwieipl while the xwmalnder ~8s elloarted t* irrigao16m. Hors the total 4llaiostion is for lcrigstiem, 

Wnuf8crturtn.g aad oawoPcrcia1. 

tbfarence l.s nov made to our Opinion No. O3397, addreesed to the Board of Water &&gineers. Among other problewv, th0 oploion was ooncemed vlth 

(1) the right of perwbttee to I%%% ,'te land other tbrrn 

that d6wribed in bF4 pw?Itit, and T 8) the authority 0r 

th8 Board to gr4nt 8n em6ndment t0 such permit to ellow 

irrigation of such other land. me opinion conclude.8 

that peraittee'e i,rrigetion use Ls restriated to the 

Land desor.U#ed in swh permit and thet a ch46ge of piece 

of ua6 Is net parurritted withgrat the suthorlty of the 

Beard (1 W6 quote fr0m the opinion as PolloWs: 

"However B aereful resdlng of the Texas 

Statutes dda&g with app%?opriatioa of w4ter 

reveals 8 unifws Znsistenae by the Legbslsi 

ture that if the o&~rop:riartsd Wat6r is to be 

umd for I~rlgiItttcn pur~omcm, the land to be 

lrrigsted must be described in the oorioura 

inrtmentm required to perfect the spprogrtition. Ua, tind thtr requlr6ment in the stotuto 

oovrring the aentents of the 4pplloation, t&It 

covering the contents of the not104 of hesring 

on the permft, and in the statute de8ling,with 

the contents of the permit itself. The Legislature has set out no such requirementa wh4re 

the voter I.4 to be used for other purposes. 
. 

Board of Water Engineers - Pege 6, v-82 

"If it vas the leglslstive intentthat 

an sppropristor of water for lrrlgatlon purposes should be free to us6 suoh Water to 

lrrlgatesny lend he chose, ve o8n conceive 

of no reason for requiring th8t the land be 

described in each of these'enactments. If 

It vas intended that the appropriator could 

ignore the fsct th8t a particular tr8ct of 

land ~88 described in his permit, it must be 

es@UPfed th8t the Legisleture h8s required a 

uaelesa thing e 

o? statute 

Under well recognized rules 

q construction we can m8ke no auch 

assumption. 

At first glance, the result to be reached here, 

based on Opinion Bo, O-3397, would be that since the Leglslaturo h8s uot reguired 8 desoription of place of use of 

the non-irrigating statutory uses in the original application 8nd permit, chenges in the place of such use without 

further eppliccrtlon to the Board must follow as a matter d 

Cour8e. Nor st first glance, does Clark v. Briscoe Irrlga-' 

tion Company, suprs, seem to go so~far as to require the 

Boerd's permission to chenge vhen the use is already suthcized by permit. lfOVeV4r, no logical re8son exists for dlatinguishing change of piece of use 8s such, from ohange of 

place of use 8s betveep the various uses authorized by 

statute. We interpretiC1ark.v. Brlscoe Irrigation Comp8ny 8s holding that eppllcation to the Boerd is required 

to ch8nge the place of use a8 such and for all permitt8d 

purposes and not for irrigation alone. A0 good rea.son exists why pelllrittee should be confined to one area in conducting irrigation, absent suthorizetion to change by the 

Board, and at the same time be alloved to exercise the 

other uses covered by his permit at any place or places 

he desires. Here the wster to be used in either case is 

th6 s5me Vat4P. Cen it logically be restricted in change 

for irrigation, but not manufacturing? We think not. 

Clark v. hy2aaea frrlgation Company has lnferentielly moved the law ef appropriation in this State over the void 

lait by our statutes in nmt prevldi 

T 

for l ppllo~atloa for 

change OS ua4 em3 pla00 or uaa, and he "continuing duty 

of 8uparvIaien over ths diatrlbutlon and use of the public 

uatopa oh the Itata 10 86 to see that the constitutions1 

and at8tuterg objectives ar6 attained," accorded the Boald 

'by the opinion surely must relate to chsnge of place of 

use for all purposes and not for irrigation alone. We 

kn6v of no other result vhioh would not in the word8 of 
. . - 

Board of Water Engineers - Page 7, V-82 

th8 opinion “result in defeat or clruumyentlon OS th8 

objectives of the conservation law”, 88 th8t law has be8a 

construed and carried forward by that case. We conaidep 

Clark v. Briacoe Irrlgrtlon,Caop8nj a8 contFolll.ng on 

this aub jeot . 

We think it unS@tunate that the Board has not,, 

and In our opl~ion it r*, under its rsgulatory power8, 

Art. 7531, V.A.C.S., rd under th8 last atatem8Ilt of 

Article 7515, V.A.C.I., pequ3.m dealgmticm of the plaoo 

of the use of non-i~~ig8tL~ m8es. Article 7515, Y .A 4.8.; 

provide8 aa follewrr 

“Bvery pemit lasud by the Board, uudesr 

the provisions of thla cbrpter, shall bo in 

wrltl@g, 8tteatul by the 0081 of arid Word and 

shall contain aubstarltiatly the followlngr The 

name of the applioant ta wham Issued; the d8te 

of the isauanca thereof; the date of the flling of the original eppllcotion thersior In 

the offloe of th8 B@ard; the use or pur 

which the appropriation of water la to { 

0110 for 

e ude; 

the amount or voluma of water authorla8d to be 

appropriated; a general description 8f ths 

source of supply Srom whiah the appro]Pri8tiQn 

is proposed to be mrde; and, ii such 8ppropriOtion IS for irrigation, a daacrlption Snd atateslant of the approxirto are0 OS the 18nd8 to be. 

In this c annaction, we rat ommend lor your future 

ude 8 form of permit which allocat88 a 8p0ciric quantity 

of watsr to each permitted use in order that permittee ~87 

show by ectual b8neficFal user th8ylf tka w8t8r to which k8 

is entitled undst! his p8lwit ha8 ripsand into the tilt18 

vested by reason of Artiolo 75!XZ2. It seems to ua tlvlt 

this type OS pezrlalt designating the place of use -of all 

permitted u8eai would aaalat geu in Carryingout the ngulrtory gbligrtion whfoh you hoe mbder the 8tstutes and 

und8r the construotion given them by clrrk v. Bidscoe Irrlga~tion Ccmpaay, supra. 

Th8 qlaeatZcm nw rriara 88 to pemittee’r rZ&t 

to use the water under its p8nLt id ynuf88t~lag purt;te;oiLyond the w8teuh8d without tuur2h8r l mthoritf irou 

. Ih8 l ~OQdHP t8 0s @QtQhr 18, l$?h, 8?kd my 28, 
. 

Board of Water Engineers - Page 8, v-82 

. . . .(~ 

1942, olearly carry the irrigation use on all except 

1.787 acrea beyond the watershed. Tha language which 

is easentiellg the same in each of the 8eendments 

granting this authority, is quoted as Sollows: 

"l?OW,TliBRBFORE, the Board of Water 

Engineers for the 8t8te of Texas, does 

by t&888 INSent QltMT the Authority 

and the Right, subjeat te 811 the teru8, 

rgpeementa, conditlona and reatriotlona 

contained fn Permit Ho, 1040, unto the 

Brazes VIlley Irrigation Uoinpany to change 

its Plaoe of Use of the water, for irrigation under said Pepplit so. 1040 from the 

lands origfnelly described fn srld permit 

the irrig8tlon of the follcOlLng deaaribed 

lands, towltr 

to 

“ft iS expressly provided th8t 811 OS 

the rights, tezms, agreements, conditions 

and restpictfons contained in Permft No. 

1040 shall remain fn full force and effect 

and the Authority 8nd right to change the 

Plaae OS 086 herefn granted i8 granted subject to all auah rights, terms, agreements, 

condition and restrfbtfons. *. 

“It is further exp~sss~y provided that 

the granting OS this Right and Authority shall 

not in any way fnarease, nap decrease, the 

Permittee’s exfstfng Pfghts under said Pemit 

Hoa 1040, except that PermIttee niay exercise 

4ta Irrigation Fights OR the lands hereinbeiore 

described (88 Trest A and Tr8ct B), and shall 

not irrigate otBeqP l8nds than thoae hereinafter 

deacrfbed unleaa 18wSully permitted to dc 10.” 

Thl6 lrnguage is preceded by sealtations concornin the peetfoue action of the Beard fn granting the 

origin81 per&?, and in gnating the l sedment authorizing 

we SOP wnniaoturfng purpoasa, the applloat~on by the lPrtfgtien carpmy to frrif)te b8yoad the wrtorahed, the 

helrfng on snah 8ppliarth~i rnd th8 fLDdf0g that a chrnge 

in place of u8e would not Polltilt in on fna%wse% r$pmPirtlon OF fnterfere with vested rights, 

. 
,. . 

Boerd or Weiyr 1Cn(ptwaw - Peg8 9, Vn82 

We heve exerined the two wlt8Mhed rppliertlolu 

in question end neither mekes apfU,c~tloa to ~?ewwe the 

mrnuf8oturing we beyoti the v8teP8h8d. 

our 8t8tut88 on thL8 rubjeat rtrsss th8t the 

weter itself 18 t&8 818ment upon vhZoh the wrterrhed 

restriction 18 pl8ced. &Hi018 7589, V.A,O.S., makes it 

unlawful to dfvept vetrr beytmd tlw vrterehed end Article 

7590, V.A,O.S,, pXovide8 8 method by !fhiCh w8ter uy be 

diverted upeu p~op8r appllcrtion 8nd h88rigg. The statutce 

provide 8s fol.lcvs: 

Brtlale 7589- 

'It Sh8li be UWWiUi iQP WY pW#oll, 88- 

soci,etiQQ of p@JrIow, oor)slat;cln, vet(rp irproveoent or ixQQ8tloa district te take osI 

divert say of the vetep of th8 oniiarry flow, 

underflow, or storm flev of eny stCe8m, v8ter 

course, or vstershbd, in thi8 9tste Into any 

othw n8twl 8tMm, v8teP oouree 01 w8tesrh8d, 

ts t&8 prejksdloe of 8ay pw*sn or, propwty ritueted withtn ths wstexwwd fwa Mioh auoh vlter 

18 propw~ed to be t8k8n 6~ BLverted." 

"Before eny person, es4ociatioa of per80118, 

oorpor8tIoa, weter improvement or l~lgation 

district ShOll t8k8 8ny v8te2' iroll ear Mtur81 

StreDm, V8ter CQUZ’80, or vrtwahsd in tht8 i3t8te 

Into 8a) other w8terrhed, arUCh perI)on, l O8wi8- 

tion of per8on8, ao~e*ltlon, v8teF iuprovement 

. or irrlgrtlon dirtrlct ah811 erke rppliortioa to 

the Bo8H oh W8ter Xnglneer8 for 8 perrft 80 88 

to take OP dtvert swh vdlt8F8, and no such pmmit shell be ir8uad by the Barrd nntll 8fter full, 

hearing before arid Beard 88 to the ri@ts to be 

rffectivd thereby, end owh herring ah811 bs hsld~ 

end noti. thereof giVen 8t 8UOh ti@O 8ad 8uOk 

pl.ece, in 8Uch aode and m8nner 8s the &Mld UJ 

prescribe; end from l ny decision of the Bo8ld 

eny appeal my be t8keQ to the distriot court of 

the county in which such diversion is proposed 

to be made, in the mode 8nd m8nneP prescribed 

in this chapter for other 'appea18 from the de- .- 

cision of the Board." 
Bo8rd of Water Engineers - Page 10, v-82 

Although the Boardas intention as expressed in 

the two watershed amendments is not entirely clear, we interpret these amendments as necessarily carrying the water 

beyond the watershed for all permitted purposes and not for 

irrigation alone, We think that all uses authorized by a 

permit move with the water beyond the watershed and see no 

logic In requiring permittee to do that which he has done 

already, namely, reapply and be re-permitted to move exactly the same water beyond the watershed. By this, we do 

not me8n th8t under a permit allocating specific quantities of water to specific usea, that a permit to remove 

water 8lloc8ted to one of the permitted uses will move 

the weter 8llocDtOd to 8 permitted use not involved in the 

rerovrl application, That is not the situation involved 

here. XW d0 we ne8n t0 itier th8t this in any wry linit8 

what ha8 been heretofore said a8 to chenge of u8e and 

pl8ce of use. Articles 7589 and 7590 (supzu) rel8te only 

to removing wrter beyond the watershed and oreste no restriation on u8e OF place of u8e. These reatrietion8 88 

previded by st8tute, and es carried forward by Clark v. 

Brircoe Irrfgtfon Coaspsny (supra), apply, in our opinion, generelly# rnd are not confined to use within the 

wetershed. What we have said previously on this subject 

of change applies as well beyond the watershed. 

411 conclusions reached herein relating to chrnge 

OS use and place of use are subject to the general rule 

prohibiting such changes when the amount of appropriated 

wster fs increased, or when prior vested rights are lnjured. These ostters are for your cot~ideratlon at the he8ring on the application for change. 

SUMMARY 

Under a permit granted by the Board of 

Water Engineers authorfzfng the appropriation 

of water for irrigation purposes, and amendments thereto euthorfsfng the use of a portion or all of the water so appropriated for 

manufacturing and commercial purpo8es, and 

permitting the removal of the bulk of the 

water beyond the watershed for use in lrrfgatfng certain described lands; permittee must 

apply to the Board for a permit to use the apprfeted waters for municipal purposes and for 

a permit to change the place of use for manu- 
. . . . 

Board Of tiater Engi~~f~r~ - PIge 11, v-82 

fscturingg and coaamemial pufpo8ea, both whit&- 

in and without the vatershed~ 

Your8 very truly 

AT!P~RNEYOERERALOF !FXAB - 

HDP/bt/Ih 

APPROVED: March 11, 1947