The HonorableBill Sullivant

Chairman Opinion No. Ii-802
House Committeeon 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 .useregulations.
Dear ChairmanSullivant:
you have requested our opinion regarding the authority of the TexasWater 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 landruse planning and to condition the granting of permits to point or non-point'sources of watertiontaminantson proper site selectionand 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 DisposalAct, Water Quality Act, by which the Water Development Board was created, provides:

p.3383The 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 issuedby 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 specificallyempowered to "issuepermits

. . . 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-underthe permit at any time and from time to time; (4) the character and quality of waste thatmay be discharged under the permit; and (5) any monitoring and reporting requirements prescribed by the board for the permittee. Sec. 21.081. (Emphasisadded). You have not indicatedwhat 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.3384TheHonorableBill Sullivant - page 3 (H-802)

Section21.081 requires the Board, in granting permits, to considerthe five enumerated conditions,one of which is 'thelocationof the point of discharge of the waste." Thisconditioncould, in a .giveninstance, embrace a consideration

as to whether there has been a "proper site selection." The use of the term "including"preceding the fivespecificconditions indicates that the Boardmay establishothercriteria in determiningwhether or not to issue permits. Federal Land Bank of St. Paul v. Bismarck Lumber ---- 314U.S. 95, 99-100 (1941);El Paso Electric Co. v. conceptio;of "proper site selection"and "landuse divisions andregulations"may be deemed to be "conditionson which [thepermit] is issued," it is our opinion that the Board sayconsidersuch factors in determiningwhether to grant a permit. Under the terms of the DisposalWell Act, the Texas WaterQualityBoard is authorized to issuepermits for the drillingof disposalwells and the conversion of existing wellsintodisposalwells. Water Code, S 22.011. In granting apermit,the Board is directed to

impose terms and conditions reasonably necessary to protect freshwater from pollution, including the necessary casing. Sec. 22.051(b). Wietherproper site selectionand compliancewith land use divisionsand regulations set by the Board constitute "terms andconditionsreasonablynecessary to protect fresh water frompollution"is a question of fact which we are unable to determine. Certainly, the authority conferred upon the Boardby ,section22.051 is less clearly related to those conditionsthan that granted by section 21.081.

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

Pursuant to the Solid Waste DisposalAct, the Texas Water Quality Board has

the powers and duties specificallyprescribed in this Act and all otherpowers 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 solidwastes 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 solidwaste. 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 reasonspertaining 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). (Emphasisadded).

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

The other aspect of your question inquireswhether the TexasWater Quality Boardmay 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.

. . . [Llanduse 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 regulationsas 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 resulationsnonnallv subsumed under zonins and nlannins devices." South Terminal Cor Agency, 504m 646, 6 8 (ls~.c~.EnviroNnentai Protection

No statutegrants to the Texas Water Quality Board any general authority to engage in land use planning. Although the power to enact zoning and other such regulationsderives 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 'delesatedto

**. -**  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 characterizedas "land use planning,"we conclude that the Boardmay not exercise general power in this area.

p.3387The 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 SolidWaste DisposalAct, and possibly the DisposalWell 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

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