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 setwater quality standards forwaters occupyingprivately 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 explanationy,oufurnish is correct:

The BrownsvilleNavigation 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 originallybe made into San Martin Lake, which is about 3,500 acres in size. The lake,which connectswith the Brownsville Ship Channel, occupies a bed owned by the District in largepart, and in part by severalprivate parties.

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

In this context,you ask:
Does the Water Quality Board's authority to setwater quality standards for the water in the state and to issuepermits authorizingwaste discharges intowaters in the state extend to the waters occupying privately-ownedbeds which connect with public waterways, and to discharges entering the waters in suchprivately-owned beds. The navigationdistrict 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 connectswith 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 TexasWater QualityAct 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 privatewaters and private water beds. V.T.C.S. art. 4444 (renealed):Penal Code, art. 698b (re.___ -.-. ~~~.. ~~ pealed); Turner v. &Lake bil Co., 96 SiW.2d 221 (Tex.Sup. 1936), affirming-Turnerv. 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.). Percolatinqand surfacewaters 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 termswhich now substantiallyappear in section 21.003(3)of the Water Code:

P.3397The 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 surfacewater, natus or artml,inland or coastal, fresh orsalt, navigable or nonnavigable, and including the beds and banks of all watercourses and bodies of surfacewater, that are wholly or partially inside or bordering the state or inside the jurisdiction of the state. (Emphasisadded). The word "public" is notably absent, and previously unregulatedpercolating and surfacewaters are expressly included in the definition. Section 21.251 of the Water Code specifies: (a) Except as authorizedby a rule, regulation,permit, or other order issued by the board, or the executivedirector when authorized by the board, no personmay: (1)discharge oewage,municipal waste, recreationalwaste, agriculturalwaste, or industrialwaste 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 conjunctionwith 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 conjunctionwith any other discharge or activity, causes, continues to cause, or will cause pollution of any of thewater in the state, unless the activity is under

p.3398. . -

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

the jurisdictionof 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 shallbe given to the state of existing technology, economic feasibility,and the water quality needs of the waters thatmight be affected. (c) No personmay 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 itmay be privately owned, connectswith 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 IndustrialWater Authorit 7?ZJ7X)~eZiZ-&o?tE%tZ TZXSa%&Z EE'i~Ermittently is separated from the Channel so that at times it might be characterizedas private water, we belleve it is within the present statutorydeflnltron of water subject to reasonableregulation by the Texas Water Quality Board. Cf. Amerrcan Plant Food Corporationv State,

. 508 S.W.2d 598 - (Tex.Grim,App.74).
In our opinion, the Water Quality Board does have valid statutorypower to set reasonablewater quality standards forwaters in this state occupying privately owned beds which connectwith public waterways, and to prevent harmfulwaste 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 imposedwith 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 reasonablewater quality standards forwaters in this state occupyingprivately owned bedswhich connectwith public waterways, and to prevent harmfulwaste discharges from entering the water in suchprivately owned beds.
Ver 

# & trulyzyd 

# 62 HN L. HILL Attorney General of Texas
APPROVED:

Opinion Committee jwb

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