ATTORNEY GENERAL OF TEXAS GREG ABBOTT



### The Honorable Patrick M. Rose Chair, Committee on Human Services Texas House ofRepresentatives Post Office Box 2910 Austin, Texas 78768-2910

Dear Representative Rose: March 15,2010

Opinion No. GA-0762
Re: Whether a Type A general-lawmunicipalitymay impose and enforce a nonpoint source pollution ordinance in its extraterritorialjurisdiction pursuant to section 26.177 of the Water Code (RQ-0822-GA)

On behalfofthe City ofWimberley, you ask whether "a Type A General-Law city has the authority to impose and enforce a nonpoint source pollution ordinance" in its extraterritorial jurisdiction under section 26.177 ofthe Water Code.! Subsection 26.l77(a) ofthe Water Code states, "[a] city may establish a water pollution control and abatement program for the city." 

### TEx. WATER CODE ANN. 

### § 26. 177(a) (Vernon 2008). Subsection 26. 177(b) further explains that [t]he water pollution control and abatement program of a city shall encompass the entire city and, subjectto Section 26.179 ofthis code,2 may include areas within its extraterritorial jurisdiction 

### which inthe judgment ofthe city should be included to enable the city to achieve the objectives ofthe city for the area within its territorialjurisdiction. The city shall include in the program
... the following services and functions:

lRequest Letter (available athttp://www.texasattorneygeneral.gov).
2Sect ion 26.179 ofthe Water Code pennits the owner or owners ofland in the extraterritorialjurisdiction of some municipalities to designate a tract as a water quality protection zone. 

### TEx. WATER CODE ANN. § 26. 179(c}--{d) (Vernon 2008). Once the Texas Commission on Environmental Quality approves the designation, municipalities are prohibited from enforcingtheirpollution control and abatementprograms within such zones. Id. § 26.1790). However, the Texas Supreme Court held that section 26.179 of the Texas Water Code, as it was enacted in 1995, was unconstitutional as an impermissible delegation ofauthority to private landowners. FMProp. Operating Co. v. City of Austin,22 S.W.3d 868,888 (Tex. 2000). Althoughthe Legislature amendedthe statute in 1999, a prior attorney general opinion concluded that ''the Texas Supreme Court's analysis ofsection 26.179 in FMProperties would not change in light ofthe 1999 amendments." Tex. Att'y Gen. Op. No. JC:-0402 (2001) at 6.The Honorable Patrick M. Rose

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(5) the development and execution of reasonable and realistic plans for controlling and abating pollution or potential pollution resulting from generalized discharges of waste which are nottraceable to a specific source, such as storm sewer discharges and urban runofffrom rainwater

.... 

### ld. § 26.177(b) (emphasis added) (footnote added).
Atthe outset, wenotethat section26.177 does notusethephrase "nonpointsourcepollution" as you do in your request, nor is that phrase defined inthe Water Code, although itis used in several other provisions. 3 

### See Request Letter; 

### TEx. WATER CODE ANN. 

### § 26.177 (Vernon 2008); 

### see also 

### TEx. WATER CODE ANN. 

### §§ 26.0135 (Vernon Supp. 2009) (requiring State Soil and Water Conservation Board to coordinate certain "nonpoint source pollution" programs), 26.023 (Vernon 2008) (requiring consideration ofeffects of"non point source pollution" indeveloping water quality standards). Instead, subsection 26. 177(b)(5) addresses "generalized discharges ofwaste which are nottraceable to a specific source, such as storm sewer discharges and urban runofffrom rainwater." 

### TEx. WA.TER CODE ANN. 

### § 26.177(b)(5) (Vernon 2008). While the two phrases are conceptually similar, inconsideringyourquestion, we confine ouranalysistothe exactlanguage of the statute and address a Type A general-law municipality's authority in its extraterritorialjurisdiction to control and abate water "pollution resulting from generalized discharges ofwaste which are not traceable to a specific source." 

### ld.
Inansweringyourrequest, we first address whether section26.177 appliesto Type A generallawcities. Municipalities inTexas maybe divided into three broad categories: general-law, speciallaw, and home-rule. 

### Laidlaw Waste Sys. v. 

### City ofWilmer, 904 S.W.2d 656, 658 (Tex. 1995). The Local Government Code further subdivides general-law municipalities into three types: A, B, and C. 

### TEx. Loc. GOV'T CODE ANN. 

### §§ 5.001-.003 (Vernon 2008). Section 26.177 ofthe Water Code applies to "acity" or "amunicipality" without further distinction, and youtherefore ask whether that section applies to any city, regardless ofits size or whether the city is organized as a general-law or home-rule municipality. Request Letter.
The Legislature has charged the Texas Commission on Environmental Quality (the "Commission") with implementing the provisions ofchapter 26 ofthe Water Code. 

### TEx. WATER CODEANN. 

### § 26.011 (Vernon 2008). For purposes ofsection 26.177, the Commission has defined the term "city" as "amunicipality orcity existing, created ororganizedunderthe general, homerule, or special laws of this state." 30 

### TEx. ADMIN. CODE 

### § 216.23 (2009) (Tex. Comm'n on

3"Point source" is defined in the Water Code as "any discernible, confmed and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well,

. . . or vessel or other floating craft, from which pollutants or wastes are or may be discharged into or adjacent to any water in the state." TEx. WATER CODE ANN. § 26.001(21) (Vernon 2008). The Texas Commission on Environmental Quality has defined "nonpoint source" as "[a]ny origin from which pollutants emanante in an unconfmed and unchanneled manner, including, but not limited to, surface runoff and leachate seeps." 30 TEx. ADMIN. CODE § 330.3(92) (2009) (Tex. Comm'n on Environmental Quality, Municipal Solid Waste, Definitions).The Honorable Patrick M. Rose

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Environmental Quality, Municipal Water Pollution Control and Abatement, Definitions). Thus, under the Commission's definition, the term city in section 26.177 would include Type A generallaw cities. As the agency charged with administering the provisions of chapter 26 ofthe Water Code, the Commission's rules interpreting those provisions are entitled to deference, provided the agency's interpretation is reasonable and does not contradict the plain language ofthe statute. 

### Fiess 

### v. State Farm Lloyds, 202 S.W.3d 744, 747 (Tex. 2006); 

### Tarrant Appraisal Dist. v. 

### Moore, 845 S.W.2d 820,823 (Tex. 1993). We therefore analyze the Commission's construction ofthe term city in light ofthis standard.
Inconstruing statutes, theprimaryobjective isto ascertain and give effecttothe Legislature's intent. 

### City of Marshall v. 

### City ofUncertain, 206 S.W.3d 97, 105 (Tex. 2006). Unambiguous statutory language is interpreted accordingto its commonmeaning unless such interpretation would lead to absurd results. 

### TEx. GOV'TCODEANN. 

### § 311.011(a) (Vernon 2005); 

### Hernandez v. 

### Ebrom, 289 S.W.3d 316, 318 (Tex. 2009). The commonly-understood definition ofthe term city is "an incorporated municipality." AMERICAN HERITAGE DICTIONARY 276 (2d ed. 1982); 

### see also THE NEW OXFORD AMERICAN DICTIONARY 312 (2001) (defining city as "an incorporated municipal center"). For purposes ofthe Local Government Code, when the Legislature simply uses the word municipality without further specification, it means "a general-law municipality, home-rule municipality, or special-lawmunicipality." 

### TEx. Loc.Gov'TCODEANN. 

### § 1.005(3) (Vernon2008). Thus, the Commission's definition ofthe term city appears to be consistent with both the plain meaning and the Legislature's intent. Furthermore, an examination ofthe Texas statutes as a whole reveals that the Legislature frequently enacts laws specific to one type ofmunicipality. 

### See, e.g., id §§ 141.006 (applying to Type A general-lawmunicipalities), 23.024 (applyingto Type B general-lawmunicipalities),26.047 (applying to home-rule municipalities); 

### TEx. WATER CODE ANN. 

### §§ 26.0271 (Vernon Supp. 2009) (applicable to some home-rule municipalities only), 26.180 (Vernon 2008) (applicable to some type B orC general-lawmunicipalities only). However, theplainlanguage ofsection26.1 77 of the Water Code does not distinguish between types ofmunicipalities. When the Legislature employs a term in one section ofa statute and excludes it in another section, the term should not be implied where excluded. 

### Laidlaw, 904 S.W.2d at 659. Had the Legislature wanted to limit the application of section 26.177 to specific types ofcities, it knewhowto do so. We conclude that the Commission's construction ofthe term city is neither unreasonable or contrary to the plain language ofthe statute and agree that section 26.177 applies to Type A general-law municipalities.
We next address whether section 26.177 authorizes a city to "voluntarily implement and enforce a waterpollutionand abatementprograminits "extraterritorialjurisdiction." RequestLetter. Under the plain language of section 26. 177(b), the Legislature has authorized a city to establish a program to control and abate water pollution resulting from generalized discharges of waste not traceable to a specific source. TEX. WATERCODEANN. 

### § 26.177(b)(5) (Vernon 2008). Furthermore, this program may extend to the city's extraterritorialjurisdiction so long as "in thejudgment ofthe city" doing so "enable[s] the city to achieve the objectives ofthe city for the area within its territorial jurisdiction." 

### Id § 26. 177(b).The Honorable Patrick M. Rose

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Consistent with the plain language, Texas courts have recognized a city's authority under section26. 177(b ) "to enactordinances, applicable

... within its extraterritorialjurisdictiondesigned to control andabate actual orpotentialwaterpollutionresultingfrom generalized discharges of waste not traceable to [a] specific source." Lucas v. N. Tex. Mun. Water Dist., 724 S.W.2d 811, 817 (Tex. App.-Dallas 1986, writ refd n.r.e.) (holding that cities may not regulate sewer treatment plants, which are point sources, intheir extraterritorialjurisdiction). In City of Austin v. Jamail, the Austin court of appeals specifically addressed a city's authority to enforce a nonpoint source pollution control ordinance inits extraterritorialjurisdiction. 662 S.W.2d 779, 780 (Tex. App.-Austin 1983, writ dism'd). Upholding the ordinance, the court concluded that subsection 26. 177(b )(5) expressly provided the city with authority to execute its ordinance in its extraterritorialjurisdiction. 

### ld. at 782-83. 4 Prior opinions ofthis office likewise recognize a city's authority under section 26.177 to enforce waterpollution control and abatementprograms within its extraterritorialjurisdiction. See, 

### e.g., Tex. Att'yGen. Op. Nos. JC-0402 (2001) at 2-3, JM-226 (1984) at 7-8. Thus, the Legislature has granted express authorityto a Type A general-law municipality to regulate, inits extraterritorial jurisdiction, pollution resulting from generalized discharges ofwaste which are not traceable to a specific source if the municipality first determines that implementing a water pollution control program in its extraterritorialjurisdiction is necessary to achieve pollution control objectives in its territorialjurisdiction. 5

4Dicta in City ofWest Lake Hills v. Westwood Legal Defense Fund suggested that section 26.177 "does not contemplate independent regulatory action by a city." 598 S.W.2d 681, 686 (Tex. Civ. App.-Waco 1980, no writ). That opinion addressed the authority of cities to regulate private sewage facilities (point sources) in the cities' extraterritorialjurisdiction, and it is therefore distinguishable from the nonpoint source pollution asked about in the request at issue. Id. at 682; see also Jamail, 662 S.W.2d at 781 ("[T]his language [in City of West Lake Hills] is quite clearly dictum to the extent that it purports to defme the scope ofcity authority under subection five

....").

5 A briefsubmittedbythe Texas Association of Builders suggests thatthe Texas Local Government Code limits the regulations thata citymay include in a waterpollution control and abatementprogramapplicable to its extraterritorial jurisdiction. See Brieffrom Ned Muftoz, Director ofRegulatory Affairs, Texas Association ofBuilders, to Honorable Greg Abbott, Attorney General ofTexas, at 4 (Oct. 23, 2009) (on file with the Opinion Committee). However, you ask only about the general authority granted pursuant to section 26.177 ofthe Water Code, and our opinions are limited to the specific questions asked by an authorized requestor. Tex. Att'y Gen. Op. No. GA-0283 (2004) at 9 n.2. Therefore, we express no opinion onthe validity ofany specific controls that may be included within a city's pollution control and abatement program.

### The Honorable Patrick M. Rose

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### SUMMARY
Pursuant to Water Code subsection 26. 177(b)(5), ifa Type A general-law municipality determines that implementing a water pollution control program in its extraterritorial jurisdiction is necessary to achieve pollution control objectives in its territorial jurisdiction, the Legislature has authorized the municipality to regulate, in its extraterritorial jurisdiction, pollution resulting from generalized discharges ofwaste which are nottraceable to a specific source.

ANDREW WEBER First Assistant Attorney General
JONATHAN K. FRELS Deputy Attorney General for Legal Counsel
NANCY S. FULLER Chair, Opinion Committee Virginia K. 

### Hoelscher Assistant Attorney General, Opinion Committee