The Honorable Hugh C. Yantis, Jr. 

Executive Director 

Texas Water Quality Board 

P. 0. Box 13246, Capitol Station 

Austin, Texas 78711 

Opinion No. H- 805 

He: Does the Water 

Quality Board have the 

power to set water quality 

standards for waters 

occupying privately owned 

beds and to prevent waete 

discharges from entering 

privately owned beds? 

Dear Mr. Yantis: 

We do not resolve disputed questions of fact, and for 

purposes of this opinion, we assume, but do not decide, that 

the following explanation y,ou furnish is correct: 

The Brownsville Navigation District, 

upon adequate authority, applied to the 

Water Quality Board for a permit 

to discharge an average of one million 

gallons of waste per day from the proposed Fishing Harbor sewage treatment 

plant to be located adjacent to the 

Brownsville Ship Channel. The discharge, 

however, will originally be made into San 

Martin Lake, which is about 3,500 acres 

in size. The lake, which connects with 

the Brownsville Ship Channel, occupies 

a bed owned by the District in large part, 

and in part by several private parties. 

p. 3396 
The Honorable Hugh C. Yantis, Jr. - page 2 (H-809 

In this context, you ask: 

Does the Water Quality Board's authority 

to set water quality standards for the 

water in the state and to issue permits 

authorizing waste discharges into waters 

in the state extend to the waters occupying privately-owned beds which connect 

with public waterways, and to discharges 

entering the waters in such privately-owned 

beds. 

The navigation district agrees that the Texas Water 

Quality Board may regulate the discharge of wastes into the 

Brownsville Ship Channel from San Martin Lake, but contends 

that it has no authority to regulate the discharge of wastes 

into San Martin Lake because the lake is private property. 

In this case the private lake connects with a public waterway. 

Accordingly, it is necessary to address only that situation, 

and we need not discuss the authority of the Board to regulate 

water quality for bodies of water located on private property 

and which are not connected in any way with a public waterway. 

Prior to the enactment of th'e Texas Water Quality Act 

of 1967, article 7621d-1, V.T.C.S., the water pollution 

regulatory laws of the state clearly applied only to public 

waters and not to private waters and private water beds. 

V.T.C.S. .___ -.-. art. ~~~.. 4444 ~~ (renealed): Penal Code, art. 698b (repealed); Turner v. &Lake bil Co., 96 SiW.2d 221 (Tex.Sup. 

1936), affirming-Turner v. CL= Oil Co., 62 S.W.Zd 491 

(Tex.Civ.App. -- El Pasoy9331; m 

+ 

of Weslaco v. Turner, 

237 S.W.2d 635 (Tex.Civ.App. -- ace rP51, writ FZf. n.r.e.). 

Percolatinq and surface waters were declared to be "private" 

and not "public" waters. Turner v. 

The Texas Water Quality Act of 1967 departed from the 

pattern of previous acts by defining "water" subject to 

regulation in terms which now substantially appear in section 

21.003(3) of the Water Code: 

P. 3397 
The Honorable Hugh C. Yantis, Jr. - page 3 (~-805) 

'Water' or 'water in the state' means 

springs, rivers, streams, creeks, estuaries, 

marshes, inlets, canals, the Gulf of Mexico 

inside the teritorial limits of the state, 

and all other bodies of surface water, 

natus or artml,inland or coastal, 

fresh orsalt, navigable or nonnavigable, 

and including the beds and banks of all 

watercourses and bodies of surface water, 

that are wholly or partially inside or 

bordering the state or inside the jurisdiction of the state. (Emphasis added). 

The word "public" is notably absent, and previously unregulated percolating and surface waters are expressly included 

in the definition. 

Section 21.251 of the Water Code specifies: 

(a) Except as authorized by a rule, regulation, permit, or other order issued by 

the board, or the executive director when 

authorized by the board, no person may: 

(1) discharge oewage, municipal waste, 

recreational waste, agricultural waste, 

or industrial waste into or adjacent 

to any water in the state; 

(2) discharge other waste into or 

adjacent to any water in the state which 

in itself, or in conjunction with any 

other discharge or activity, causes, 

continues to cause, or will cause pollution of any of the water in the state; or 

(3) commit any other act or engage in any 

other activity, which in itself, or in 

conjunction with any other discharge or 

activity, causes, continues to cause, or 

will cause pollution of any of the water 

in the state, unless the activity is under 

p. 3398 
. . - 

The Honorable Hugh C. Yantie, Jr. - page 4 (M-805) 

the jurisdiction of the Parks and Wildlife 

Department, the General Land Office, or 

the Texas Railroad Commission, in which 

case this Subdivision (3) does not apply. 

(b) In the enforcement of Subdivisions 

(2) and (3) of Subsection (a) of this 

section, consideration shall be given to 

the state of existing technology, economic 

feasibility, and the water quality needs 

of the waters that might be affected. 

(c) No person may cause, suffer, allow, 

or permit the discharge of any waste or 

the performance of any activity in violation of this chapter or of any rule, 

regulation, permit, or other order of 

the board. 

We are of the opinion that this statute applies to the 

discharge of wastes into San Martin Lake. The bed of the 

lake, even though it may be privately owned, connects with 

the Brownsville Ship Channel. Water connected with a public 

waterway may be public, although it occupies private land. 

Diversion Lake Club v. Heath, 86 S.W.2d 441 (Tex. Sup. 1935); 

Attorney GeneralOpizonH;68 (1973). See also Coastal Industrial Water Authorit 

7?ZJ7X)~eZiZ-&o?tE%tZ TZXSa%&Z EE'i~Ermittently is separated from the Channel so that at times it 

might be characterized as private water, we belleve it is 

within the present statutory deflnltron of water subject to 

reasonable regulation by the Texas Water Quality Board. Cf. 

Amerrcan Plant Food Corporation v . State, 508 S.W.2d 598 - 

(Tex. Grim, App.74). 

In our opinion, the Water Quality Board does have valid 

statutory power to set reasonable water quality standards 

for waters in this state occupying privately owned beds which 

connect with public waterways, and to prevent harmful waste 

discharges from entering the waters of such prrvately owned 

beds, including San Marten Lake. See Attorney General 

Opinion H-64 (1973). We do not dene whether the proposed 

regulations sought to be imposed with respect to San Martin 

Lake are reasonable. 

P. 3399 
-- - 

- 

The Honorable Hugh C. Yantis, Jr. - page 5 (H-805) 

SUMMARY 

The Water Quality Board has the power 

to set reasonable water quality standards 

for waters in this state occupying privately 

owned beds which connect with public waterways, 

and to prevent harmful waste discharges from 

entering the water in such privately owned 

beds. 

Ver & truly zyd 

62 HN L. HILL 

Attorney General of Texas 

APPROVED: 

Opinion Committee 

jwb 

p. 3400