The Honorable Hugh 

Executive Director 

OF TEXAS 

AUSTIN. Tncz+as 78711 

,----.---- _ 

C. Yantia,Jr. 

Texas Water Quality Board 

314 W. 11th Street 

Austin, Texas 78701 

Dear Mr. Yantis: 

Re: Authority bf cities to establish water pollution con&L 

programs under 5 21.357, Texas 

Water Code 

You have asked three questions which relate to § 21.357, Texu Water 

Code. That eection provides: 

.“(a) Every city in thjr rtate having a population 

of 5,000 or more inhabitants shall, and any city of 

this state may, establirh a water pollution control 

and abatement program for the city. The city ohall 

employ or retain an adequate number of personnel, on 

either a part-time or full-time basis as the needs and 

circumetances of the city may require, who by virtue 

of their training or experience are qualified to perform 

the water pollution control and abatement functions 

required to enable the city to carry out its duties and 

responsibilities under this section. 

l!(b) The water pollution control and abatement 

program of a city shall encompass the entire city and 

may include areas within its extraterritorial jurisdiction which in the judgment of the city should be included 

to enable the city to achieve&e objectives of the city for 

the area within its territorial jurisdiction. The city ahall 

include in the program the services and functions which, 

in the judgment of the city or as may be reasonably required by the board, will provide effective water pollution control and abatement for the city, including the 

following services and functions: 

p. 1410 
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, 

The Honorable Hugh C. Yantia, Jr., page 2 (H-304) 

“(1) the development and maintenance of an 

inventory of a11 significant waste discharges into 

or adjacent to the water within the city and, where 

the city so elects, within the extraterritorial jurisdiction of the city, without regard to whether or 

not the discharges are authorized by the board: 

“(2) the regular monitoring of all significant 

waste discharges included in the inventory prepared 

pursuant to Subdivision (1) of this subs’ection: 

“(3) the collecting of samples and the conducting of periodic inspections and tests of the waste 

discharges being monit0re.d to determine whether 

the discharges are being conducted in compliance 

with this chapter and any applicable permits, orders 

or regulations of the board, and whether they should 

be covered by a permit from the board; 

“(4) in cooperation with the board, a procedure 

for obtaining compliance by the waste dischargerr 

being monitored, including where necessary the use 

of legal enforcement proceedings; and 

“(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 not traceable 

to a specific source, such a,s storm sewer discharges 

and urban r’unoff from rainwater. ” 

Your first two questions are: 

“Fiqet, does Section 21.357 of the Texas Water Code 

confer upon cities of this state any powers which are 

not otherwise given them by law? Second, does this 

section give cities any power to control activities outside of the city limits but within the extraterritorial 

jurirdiction of these cities? ” 

. 

. 

p. 1411 
, I 

.,. 

c 

The Honorable Hugh C. Yantir, Jr., page 3 ’ (H-304) 

Although it is clear that there are other source0 of power for a city’s 

exercise of some of the duties outlined in 5~216 357, both within the city 

limits, and within the city’s extraterritorial jurisdiction, e.,g. ; $ 5 21.351, 

21.353 and 21.354, Texas Water Code; Articlea 970a, 1015 and 1175. Vernon’s 

Texas Civil Statutes; Swinney v. City of San Antonio, ~483 S. W. 2d 556 (Tex. 

Civ. App. , San Antonio, 1971, no writ), we believe a city’s authority is not 

necessarily limited to those statutes. Whatever authority is necessary to 

perform the actions permitted or required under 5 21.357 is necessarily 

implied whether nor not that authority may .be granted independently by other 

statutes. cf., Davis v. City of Taylor, 67 S. W. 2d 1033 ~(Tex. 1934); Foster 

v. City of Waco, 255 S. W. 1104 (Tex. 1923); Hayden v. City of Houston, 305 

S. W. 2d 798 ,(Tex.~Civ.App., Fort Woith, 1957, writ ref’d, n. r. e.). Of 

course, a city’s authority would not extend to the point of setting water quality 

standards. $ § 21.006, 21.075, 21. 257, Texas Water Code. 

Therefore, in answer to your firat and second questions, it is our 

opinion that, irre,spective of the power conferred by other statutes, a city 

may exercise the power necessary to perform the activities permitted and 

required by s 21.357 of the Water Code. 

Your third question is: 

“Can this section be relied upon by cities to furnish a 

basis for the regulation of private sewage facilities? If 

so, by use of this authority can cities use the power 

conferred by Section 21.357 to regulate private sewage 

facilities located outside the city limits, but within the 

extraterritorial jurisdiction of the city? ” 

You indicate that your question is prompted by a belief that 5 $ 21.083 

and 21.084, Texas Water Code, provide an exclusive means of regulating private sewage facilities. Section 21.083.creates a means of regulation by the 

board. A public hearing is required as is consultation with the State Commiseloner oi Health. The Board ie permitted to establish a licensing system and 

may delegate the licensing function to local governments. Section 21.084 gives 

similar authority to counties. 

p. 1412 
The Honorable Hugh C. Yantis, Jr., page 4 (H-3041 

Our analysis of your first two questions requires an affirmative 

response to your third inquiry. The authority given cities under $21.357 

and other statutes is sufficiently broad to permit regulation of private 

sewage facilities. Sections 21.083 and 21.084 do nQt expressly prohibit 

local regulation. ct., Swinney v. Citv of San Antonio, supra. 

SUMMARY 

A city has broad powers to establish water 

pollution control programs under 5 21.357, Texas 

Water Code. These powers can include regulation 

of private sewage facilities in thd .oity and in its 

extraterritorial jurisdiction. 

Vqry truly yours, 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 1413