The Honorable Hugh

Executive Director 

### OF TEXAS AUSTIN. Tncz+as 78711 

### ,----.---- _

C. Yantia,Jr. Texas Water Quality Board 314W. 11thStreet Austin, Texas 78701 Dear Mr. Yantis: Re: Authority bfcities to establish water pollution con&L programs under 521.357, 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 awater pollution control and abatement program for the city. The city ohall employ or retain an adequate number ofpersonnel, 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 toperform 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 thejudgment ofthe city should be included toenable the city toachieve&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 thejudgment 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-, *

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

“(1) the development and maintenance ofan inventory of a11significant waste discharges into or adjacent tothe water within the city and, where the city so elects, within the extraterritorial jurisdiction of the city, without regard towhether or not the discharges are authorized by the board:

“(2) the regular monitoring ofall significant waste discharges included in the inventory prepared pursuant toSubdivision (1)of this subs’ection:

“(3) the collecting of samples and the conducting ofperiodic inspections and tests of the waste discharges being monit0re.d todetermine 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 apermit 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 ofwaste which are not traceable toa specific source, such a,sstorm 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 ofthis state any powers which are not otherwise given them by law? Second, does this section give cities any power to control activities outside ofthe city limits but within the extraterritorial jurirdiction of these cities? ” .

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p. 1411, I .,.
c The Honorable Hugh C. Yantir, Jr., page 3’ (H-304)

Although it is clear that there are other source0 ofpower 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. ;$521.351, 21.353 and 21.354, Texas Water Code; Articlea 970a, 1015and 1175. Vernon’s Texas Civil Statutes; Swinney v. City ofSanAntonio, ~483S.W. 2d 556 (Tex. Civ. App. , SanAntonio, 1971, nowrit), 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 521.357 is necessarily implied whether nornot 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 ofHouston, 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 tothe 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 toperform the activities permitted and required by s21.357 of the Water Code. Your third question is:

“Can this section be relied upon by cities tofurnish 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 tolocal governments. Section 21.084 gives similar authority to counties.

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

Our analysis of your first two questions requires an affirmative response toyour third inquiry. The authority given cities under $21.357 and other statutes is sufficiently broad topermit regulation ofprivate sewage facilities. Sections 21.083 and 21.084 do nQt expressly prohibit local regulation. ct., Swinney v. Citv of SanAntonio, supra. SUMMARY A city has broad powers to establish water pollution control programs under 521.357, Texas Water Code. These powers can include regulation ofprivate sewage facilities in thd.oity and in its extraterritorial jurisdiction. Vqry truly yours,

DAVID M. KENDALL, Chairman Opinion Committee

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