**eon. F.** **.R. Booth**  Executive Director Texas Water Rights August,4, 1967 Opinion No. M-116 Commission Re: Navigation end reclamation SamHouston State ~Office Building powers of Flamingo Isles Austin, Texas 78711 Municipal Utility District. DearMr. Booth: Youhave requested myopinion es to the constitutionality of navigation end reclawation along the Texas coast, or 

### coastal islands, in the manner proposed by Flawing0 Isles Municipal Utility District. You request answers to the following questions: 1. Is the dredging of canals which will be used for ~recree- ” tional end pleasure boating end for access to houses within the District en euthorised project for which’bonds maybe issued, under the powers of awater control and improvement district for navigation of its coastal and inland waters and the reclamation anddrainage of overflowed andother lands needing drainage in the District?


### 2. Is depositing end leveling fill onprivate property of a developer end construction of bulkheads an authorieed project for which bonds maybe issued, under‘the powers of a water control and improvement district for navigation of its coastal and inland waters end the reclamation anddrainage of overflowed end other lends needing drainage-in the District? This district was created by the Texas legislature (Article 8280-327, Vernon’s Civil Statutes) and such a statute es this has been held to be ~ageneral law as distinguished from a locel or special act. It is not in contravention of Article,III. Baetion 56of the Texas Constitution. L.C.R.A. v. UcCrew. 125Tax. 26g, 83 S.W.Zd 629 (1935); L.N.V.A. v. m, 140Tex.,2%, 167 S.W.2d 1011 (1943); Atwood v. Willecy County Nav. Dist.. 271 S.W.2d 137 (Tex.~Civ. App. 1954. Ref. N.R.E.); Countv of Kron v. Wilson, 160Tex. 25. 326 S.W.2d 162 (1959)‘,; Sullins v. City of

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Hon. F,.R. Booth, page 2 (M-116)

e, 336 S.W.2d 814, (Tex. Civ. App. 1959, nowrit). All of Chapter 3A, Title 128, V.C.S. relating towater control and improvement districts is incorporated by reference into Article 8280-327, the organic law of this district, and such laws apply when they are not in con:. flict with the act creating this district. Sec. 3, of Art. 8280-327; Trim&r v. Carlton, 116Tex. 572, ,296S.W. 1070 (1927); Hidalgo County W.C.I.D. 

### No. 1v. Hidalgo County, 134 S.W.2d 464, (Tex. Civ. App. 1939, Error Refused). It is valid to incorporate the nsvigation and reclamation statutes relating to general lawwater ,control and improvement districts by reference into the organic law of Flamingo Isles Muoicipal Utility~ District. RoadDist. No. 1, Jefferson County v. Sellers, 142 Tex. 528, 180 S.W.2d 138 (1944); v. Yates, 145 Tex. 38,, 194 S.W.2d 395 (1946); Newton Lumber Companyv. Newton Countv Water Supply District, 328 S.W.2d 461 (Tex. Civ. App. 1959, nowrit). Lower Nueces River Water Supply District v. Cartwright, 274 S.W,Zd 199, 207 (Tex. Civ: App. 1954, Ref. N.R.E.). TheTexas Constitutional provision under which this District was organized plainly provides for “the reclamation and drainane of its m ” end for “the of its iaters.” i

Art& XVI, Sec. 59, Texas Constitution. nlandand coastal Bythe provisions of certain general ,stetutes relating towater control and improvement districts, the Legislature has declared that “such districts shall be ornanized end ouerated under the conditions, provisions. authority and restrictions” provided in.Article,XVI, S~ec. 59of~our Texas Constitution. Articles 7880-l and 7880-7, Vernon’s Civil Statutes. Section 3, of Article 8280-327, givesFlamingo IslesMunicipal Utility District: II~. . all of the

. e. powers aasconferred

. d

. by Chapter 3Aof Title 128, Revised Civil Statutes of Texas, 1925, , La includine all oowers and euthoritv relating to the navigation pf its coas.&& and inland wateX.8md the reclamation and drainage of_nverflowed ~. . and the issuance of bonds therefor as authorized by andprovided in said Chapter e . *” (Emphasis added) It is the opinion of this office that the project described in your request is clearly within the constitutional and statutory powers of Flamingo Isles Municipal Utility District, to-wit: reclamation, drainage andnavigation. Compare,Parker v. SanJacinto County Water Control &Improvement Dist., 154Tex. 15,.273 S.W.2d 586 (1954). Land fill along acoastline, or river, or island, has long been recognized as one of the means of reclamation of lands. 56Ami,Jur.,

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Hon. F. R. Booth, page 3 (~-116)
Waters, Sec. 501, pages 909-10; Annot. 91A.L.R.2d 858; Lorino v. eford Packing Co., 142 Tex. 51, 175 S.W.2d 410 (1943); Coxv. DallasL.I.D., 258 S.W.2d 851 (Tex. Civ. App. 1953, Ref. N.R.E.). It was long ago recognized that the legislature could decide the size of the district and the territory to be included. Paulsen v.,Portland, 149U.S. 30 (1892); II Farnham, Lawof Waters andWater~Riahts, Sec. 174, page 938. In Attorney Cenerel’s Opinion No. O-7018 (1946) wesaid:

“It is our understanding that the proposed (water control and improvement) district would be organized only for the purpose of reclaiming lands which are subject to overflow and providing drainage of the excess waters.”

“Section 3 (of Article 7880, V.C.S.) specifically provides that awater control and improvement district maybe organized for the purpose stated.” In Smith v. Wilson, 13F.2d 1007 (S.D. Tex., 1926), which involved anavige~district organized pursuant to Article XVI Section 59 of the Texas Constitution, Judge Hutcheson writing for the court holds ate page 1010:

“(W)e think itsplain that (the) contention

. . . that

. . . the district was formed really for aprivate and.not apublic purpose, and that the taxes were voted in violation of Article 3, g52, andArticle 8, 83, of the State Constitution, maybe disposed of sumsarily as,, if not frivolous, certainly plainly without,merit.”

“Every public improvement of this nature inevitably results in benefit to private individuals; in fact, in purely assessment districts as such the union of private benefit with public good’ is anessential to the district, and it goes without saying that the fact that the Freeport Sulphur Company, andother persons owning property in the town of Freeport, will benefit from the improvement, does not in anymanner prevent the tax levy from being public in its nature.” Article VIII, Sec. 3, Texas Constitution provides that, “Taxes shall be levied andcollected by general laws for public purposes only.” As stated above, Article 8280-327 is a“general law.” L.C.R.A. v. McCXew, 125 Tex. 268, 83S.W.2d 629 (1935). DpVis v. City of Lubbock, 160x 38, 326 S.W.2d 699 (1959), at 

### page 709. held that the Constitutional provision requiring taxes 

### to be levied andcollected for “public purposes”

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Hon. F. R. Booth, page 4 (~-116)

is nonarrower in meaning than the words "public use" es used in Article I, Sec. 17, Texas Constitution. While "public use” is finally ajudicial question, the declaration of the Legislature upon the subject is entitled to great weight and respect in arriving at afinal decision of~the question. Atwood v. Wiilacy County Navination District, 271 S.W.2d 137 (Tex. Civ. App. 1954, Ref. N.R.E.); Smith v. Wilson, supra; B&r& v. City of Taylor, 37S.W.2d 291 (Tex. Civ. App. 1931), affirmed in u v. City of Taylor, 123 Tex. 39, 67 S.W.2d 1033 (1934). InAtwood v. Willacv County Navigation District, supra, the San Antonio Court of Civil Appeals, through Justice Norvell held that the acquisition of land by the district for the purpose of leasing the land as industrial sites in the proximity of aport is reasonably necessary to the successful operation of the port end is for a"public use" within the meaning of the Texas Constitution. In this case, the appellee district was organized in accordance with Article XVI, Sec. 59of the Texas Constitution as was the Flamingo Isles Municipal Utility District. BySections 7end 9, of Art. 8280-327, V.C.S., the Legislature has found anddeclared the "benefits" of the navigation and reclamation of the ,seeshore lends, or island@. Nohearing as to benefits is necessary (as is the case in adistrict created by general law) where the Legislature so enacts the above type of language.. Southern Paine Lumber Compen v. Newton County W.S.D,, 325 S.W.2d 724, (Tex. Civ. App. 1959, Refused N.R.E.); State ex rel. Merriman v. m, 116 Tex: 527. 296 S.W. 1085 (1927); Baunhamv0Willacv County W.C.I.D. No. 1, 112 S.W.2d 318, (Tex. Civ. App. 1938, Error Refused); City of Houston v. Fore. 412 S.W.2d 35. (Tex.,Sup., 1967). Navigation principally by pleasure boats, as distinguished from commercial craft does not alter the fact that such is "navigation." 12Am.Jur.2d. Boats end Boating, Sec. 2. page 390; Mentor Harbor Yachting Jpl&v. Mg4 ntor'La,goons. Inc., 170Ohio 193. 163N.E.2d 373 (1959); !

Nekoosa Edwards Pal ,er Co. v. Railroad Commission, 201 Wis. 40. 228 1 27i. H.W. 1r

i4 (1929); State ex rel E lamsannv. Levltan, 200Wis. 228N.W. 140 (1929); State v. Rorrer. 127Minn. 6( 617, L.R,A. 1916c, 139 (1914Jil _~ _ _ 1, 148N.W. amorev v..Metcelf 52Minn. 181, 53 N.W. 1139 (1893); Grand Rapids v. Powers, 89Mich: 94. 50N.W. 661 (1891). 14L.R.A. 498, 20Am.St. Rep. 276; NewEngland Trout and Salmon Club v. Mether, 68Vt. 338, 35Atl. 323, 33L.R.A. 569, (1896). Theriaht of navigation in tidal waters includes the right of anchorage which maybe exercised for business purposes or for-pleasure.

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Hon. F. R. Booth, page 5 (~-116)

Anderson v. Reames, 204Ark. 216, 161 S.W.2d 957 (1942). Public right of navigation entitles the public generally to reasonable use of navigable waters for legitimate purposes of transportation and for boating or sailing for pleasure in anykind of water craft consistent with enjoyment of right by others. Silver Springs Paradise Co. v. m, 50 F.2d 356 (5th Cir., 1931). Thefact that the canals of Flamingo Isles Municipal Utility District will be used for recreational purposes es well as drainage is irrelevant. See Attorney General’s Opinion No. C-436 (1965). TheFlamingo Isles Municipal Utility District as created byArt. 8280-327, V.C,S., and its reference statutes applicable thereto, is legally created and can lawfully issue bonds, or otherwise act in consonance with its organic laws to carry out the navigation andreclamation plan outlined in your opinion request. This opinion does not obviate the need for the Texas Water Rights Commission under Art. 7880-139, v.c.s., to perform all of its statutory duties as to the proposed plans of the Flamingo Isles Municipal Utility District to issue bonds. Full administrative discretion onbehalf of the State is given your Commission under statutory guide-lines to approve, or disapprove, the project whenpresented. Likewise, this opinion is not to be construed as approval, or partial approval, by the Attorney General of Texas of eny’bonds of said district. Attorney General’s Opinion No. O-7018, (1946). Pursuant toArticle 7880-34, V.C.S., such bonds maybe considered only at the time samehave been properly presented to this office. Therefore,,the questions you have submitted cannot be answered more completely et the present time.

SUMMARY
Flamingo Isles Municipal Utility District, created by Art. 8280-327, V.C.S., can lawfully engage in navigation and reclamation projects along the Texas Coast, or islands thereof, but the feasibility of such projects must be approved by the Texas Water Rights Coensisrion pursuant toArticle 7880-139,

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Hon. F. R. Booth, page 6 (~-116)
V.C.S., and subsequent approval by the Attorney General pursuant to Article 7880-34, V.C.S., must be obtained if such projects are to be financed through the issuance of bonds.

Prepared by Roger Tyler Assistant Attorney General APPROVED: OPINIONCOMMITTEE Hawthorne Phillips; Chairman Kerns Taylor;-Co-Chaiman John Fainter ,Paul Martin Dyer Moore Jack Sparks STAFFLECALASSISTANT A. 3. Carubbi. Jr.

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