The Honorable Bill Sullivant 

Chairman 

Opinion No. Ii-802 

House Committee on Environmental Re: Whether the Water 

Affairs 

P. 0. Box 2910 

Quality Board is permitted 

Austin, Texas 78767 

or required to perform 

land use planning and 

condition the granting of 

permits'on compliance 

with land .use regulations. 

Dear Chairman Sullivant: 

you have requested our opinion regarding the authority 

of the Texas Water Quality Board with respect to land use 

planning. Specifically, you ask: 

To whatextent does the Texas Water 

Quality Board's authority allow [or] 

require the Board to perform land ruse 

planning and to condition the granting 

of permits to point or non-point'sources 

of watertiontaminants on proper site 

selection and on compliance with land 

use divisions and regulations set by 

the Board7 

The author'ity of the Texas Water' Quality Board is 

derived from three statutes:~ the Texas Water Quality Act, 

Water Code, 

Code, section 

the Disposal Well Act, Water 

article 

the Solid Waste Disposal Act, 

Water Quality Act, by 

which the Water Development Board was created, provides: 

p. 3383 
The Honorable Bill Sullivant - page 2 (H-802) 

The board shall administer the provisions of this chapter and shall establish the level of quality to be maintained 

in, and shall control the quality of, the 

water in this state as provided by this 

chapter. Waste discharges or impending 

waste discharges covered by the provisions 

of this chapter are subject to reasonable 

rules, regulations, or orders adopted or 

issued by the board in the public interest. 

The board has the powers and duties specifically prescribed by this chapter and all 

other powers necessary or convenient to 

carry out its responsibilities. Sec. 21.061. 

The Board is specifically empowered to "issue permits . . . 

for the discharge of waste into or adjacent to water in the 

state." Sec. 21.079. In issuing a permit, the Board is 

required to 

prescribe the conditions on which it is 

issued, includinq: 

(1) the duration of the permit; 

(2) the location of the point of dis- -- chargeof the waste; 

-- 

(3) the mxmum quantity of waste that 

may be discharged-under the permit at 

any time and from time to time; 

(4) the character and quality of waste 

that may be discharged under the permit; 

and 

(5) any monitoring and reporting requirements prescribed by the board for the 

permittee. 

Sec. 21.081. (Emphasis added). 

You have not indicated what you believe to be embraced 

within the ambit of "proper site selection" and "compliance 

with land use divisions and regulations set by the Board." 

p. 3384 
The Honorable Bill Sullivant - page 3 (H-802) 

Section 21.081 requires the Board, in granting permits, to 

consider the five enumerated conditions, one of which is 

'the location of the point of discharge of the waste." 

This condition could, in a .given instance, embrace a consideration as to whether there has been a "proper site 

selection." The use of the term "including" preceding the 

five specific conditions indicates that the Board may establish other criteria in determining whether or not to issue 

permits. Federal ---- Land Bank of St. Paul v. Bismarck Lumber 

314 U.S. 95, 99-100 (1941); El Paso Electric Co. v. 

conceptio; of "proper site selection" and "land use divisions 

and regulations" may be deemed to be "conditions on which 

[the permit] is issued," it is our opinion that the Board 

say consider such factors in determining whether to grant a 

permit. 

Under the terms of the Disposal Well Act, the Texas 

Water Quality Board is authorized to issue permits for the 

drilling of disposal wells and the conversion of existing 

wells into disposal wells. Water Code, S 22.011. In granting 

a permit, the Board is directed to 

impose terms and conditions reasonably 

necessary to protect fresh water from 

pollution, including the necessary 

casing. Sec. 22.051(b). 

Wiether proper site selection and compliance with land use 

divisions and regulations set by the Board constitute "terms 

and conditions reasonably necessary to protect fresh water 

from pollution" is a question of fact which we are unable to 

determine. Certainly, the authority conferred upon the 

Board by ,section 22.051 is less clearly related to those 

conditions than that granted by section 21.081. 

p. 3385 
The Honorable Bill Sullivant - page 4 (H-802) 

Pursuant to the Solid Waste Disposal Act, the Texas 

Water Quality Board has 

the powers and duties specifically prescribed in this Act and all other powers 

necessary or convenient to carry out its 

responsibilities. V.T.C.S. art. 4477-7, 

S 3(b). 

With respect to the disposal of the solid wastes over which 

it has jurisdiction, the Board 

has the power to require and issue 

permits authorizing and governing the 

operation and maintenance of sites used 

for for the disposal of solid waste. 

Sec. 4(e). 

Furthermore, the Board 

is authorized to inspect and approve 

sites used or proposed to be used. . . . 

Sec. 4(d). 

Thus, the Solid Waste Disposal Act clearly authorizes the 

Board to consider "proper site selection" in issuing its 

permits. Although the Board is granted the 

authority, for good cause, after hearing and notice to the permittee and 

to the governmental entities named in 

Paragraph (1) of this Subsection (e), 

to revoke or amend any permit it issues 

for reasons pertaining to public health, 

air or water pollution, -- land use, or 

violation of this Act or of any other 

applicable laws or regulations controlling 

the disposal of solid waste. Sec. 4(e) (8). 

(Emphasis added). 

p. 3386 
The Honorable Bill Sullivant - page 5 (H-802) 

The other aspect of your question inquires whether the 

Texas Water Quality Board may engage in land use planning. 

That term is not defined in any of the three statutes from 

which the Board derives its authority. In general, "land 

use planning" may be said to encompass a broad range of 

activities: 

The orderly use and development of land 

is the focus of land use planning. . . . 

[Lland use planning is concerned primarily 

with the physical environment . . . .It 

deals with the location of uses. . . .The 

primary legal tools for effectuating land 

use planning include such police power 

regulations as zoning and subdivisionplatting controls . . . . D. Hagman, Urban 

Planning &Land Development Control Law 

(1971), at 18-1.9. 

As one court has stated, "land-use" involves "the types of 

resulations nonnallv subsumed under zonins and nlannins 

devices." South Terminal Cor 

Agency, 504m 646 

, 6 8 (ls~.c~.EnviroNnentai Protection 

No statute grants to the Texas Water Quality Board any 

general authority to engage in land use planning. Although 

the power to enact zoning and other such regulations derives 

from the police power of the state, the Legislature has 

entrusted that authority to local units of government. See 

articles lOlla-1011j; article lOllm, V.T.C.S. 

- 

The Board 

enjoys . - only such authority as is specifically 'delesated to 

it by the Legislature. Stauffer v:.San Antonio, 344 S.W.Zd 

158, 160 (Tex.Sun. 1961). Absent a statutory directive 

permitting the Board to-engage in zoning or any other activity 

which may be characterized as "land use planning," we conclude 

that the Board may not exercise general power in this area. 

p. 3387 
The Honorable Bill Sullivant - page 

SUMMARY 

6 (H-802) 

The Texas Water Quality Board has no 

general authority to engage in land use 

planning, but it possesses authority 

under the Texas Water Quality Act, the 

Solid Waste Disposal Act, and possibly 

the Disposal Well Act, to condition the 

granting of its permits to point or nonpoint sources of water contaminants upon 

proper site selection. 

Very truly yours, 

JOHN L. HILL 

Attorney General of Texas 

APPROVED: 

DAVID M. KENDALL, First Assistant 

m 

Opinion Committee 

jwb 

p. 3388