## THEA'ITORNEYGENERAL OF 7rExAs

WI& WI&SON *‘croRNEY GENERAI. April lo,

## 1961

Mr. DurwoodManford, Chairman Opinion No. WW-1037 State Board of Water Engineers P. 0. BOX 2311 Re: Under the submittedfacts Austin 11, Texas and assuming that all proceedings in promulgating the Rules, Regulations and Modes ofiprocedure of the Board of Water Engineers in 1953 and in the 1955 revisionwere in due and proper form, whether Board Rule 615.1 was valid when first adopted and when re-promulgated in 1955, and Dear Mr. Manford: relatedquestions.

In your request for an official opinion from this office you relate the following facts in connectionwith your request:

On June 19, 1957, the Board of Water Engineers issued Permit No. 1880 to the Wichita County Water Control and Improvement District No. 1 which authorized the constructionof a reservoir at what is known as the Ringgold Site on the Little Wichita River in Clay County, Texas. The time for the construction works allowed by the Permitwas extendedon two occasions, the last extensionbeing granted until April 10, 

## 1961, in which to commence constructionof the reservoir.

Your letter relates that the City of Wichita Falls submitted an application to the Board for a permit to construct a dam and reservoir on the Little Wichita River in Clay County, Texas, at what is known as the Halsell Site, approximately 35 miles upstream from the Ringgold Site, this applicationbeing submitted on October 5, 

## 1960, such applicationbeing for the purpose of appropriatingpublic waters from such reservoir for municipal purposes. You state that the application on the Halsell Site has not been accepted for filing and set for hearing by the Board primarily because hydrologic studies indicate that there is no unappropriatedwater available in the source of supply by virtue of the fact that the appropriationauthorizedby Permit No. 1880 is based upon the development of most of the dependableyield of the Little Vichita River.
You also relate tha.t at a bond election in the District on December

## 6,1958, the voters disapproved the issuance of dLstrictbonds to finance the project at the Ringgold Site, and thatmore recently the voters of the City of Wichita Pa,lls approved the issuance of city bonds to finance the construction of a,reservoir on the Little ~Wic’hita. River a.ndtha.tthe city elected to proceed with the application on the Halsell Site.

Your letter further states that after a discussionhad ::lith representativesof both the city and the district the..t th,- Board received an instrument executedby the districtpurporting to wa.ive

all the district’s rightsunder Permit No. j-889 with the request that the Board cancei the Permit without a hea.ring.

Your principal question is whether the Boa,rd ma.yproceed under Board Rule 615.1, a procedure whic’h authorizes ca.ncella.tion of a.. permit to appropriatewater without notice of t,eari.ng a,nd ‘hearingthereonw’herethe holder of the permit tenders the same voiunkrily for ca,ncellation with a.

writteil

wa.iver.
For the purpose of showing E?card Rule 

## 615.1

in context, we quote here all subsectionsunder the heading numbered 615.

“CANCELLATIONOF PXRMITSAND CXRTIFIED FILINGS “615.1 CANCELLATIONWITH CONSEIU“T: Upon being a.dvisedthat the holder of a permit or certified filing no I.onger

desires to a,bpropriate water, the Board sends a written waiver to the owner of the wa.terright a.ndthe owners of the land, if different ownerships a.reinvolved. If t~he permit or certified filing is held by a political subdivision, suchwaiver will be mailed to its governing body. (a) Documents Needed to Pile: Written waiver consenting to the cancellation. (b) Fees: None. (cl Notice and Hearing: Not-l e. (d) Action of the Zoard: An order ca.nceiing the ,permitor filing in whole or in part is -nt-recl. a.nd

mailed to tile county cleric for recording,with t3e request to i:eturnsame for fiii~ng.I.:-. D.m~ood. I,'ianford,

Pa.ge

## 3 (Wd-1037)

“615.2

CANCELLATIONWITHOUT CONSENT: Under Article 7474, the Board is given administrative power to find facts which will effect a legal forfeiture of a water permit or certified filing, or a portion thereof,where no water has been used, where the work required in a permit or certified filing has not been begun OP pursued with reasonablediligence, and where there is no beneficial use of water. (a) DocumentsNeeded to File: None. This proceeding is initiatedby the Board, (b) Fees: None. (c) Notice and Hearing: Under Articles

## 74.74 and 7519, actual noticemust be given not only to the record owner of the water right but also the owner of the land,where different ownerships are involved, noticewill be given its agent for service of citation. Such noticewill be given 30 days before the hearZng is to be held, and a public hearing is required at which the holder of the permit or certified filingmay appear or he may file a written statementresisting the cancellation. (d) Action of the Board: The Board enters a resolution or order either declaring the facts and canceling the water right, or the Board resolves that it refuses to cancel same. "615.3 CANCELLATIONUNDER ARTICLE 7519a: Article 7519a effects the cancellation of all permits unused for a period of ten consecutive years prior to January 1, 1955. The law requires the Board to follow cancellationprocedures. (a) DocumentsNeeded to File: None. The Board initiates theproceeding. (b) Fees: None. (c) Notice and Hearing: A hearing date Is set by the Board and notice thereof is sentby registeredmail, return receipt requested, to the permit holder at the last address shownby the records of the Board at least 90 days prior to the effectivedate of such cancellationhearing.Mr. DurwoodManford, Page & (ww-1037)

(d) Action of the Board: If the facts disclose that no water authorized to be withdrawn has been beneficially used for a period of ten consecutiveyears, the Board orders that the permit be cancelled.” Board Rule 615.1 was promulgatedpursuant to the Board’s general rule-makingpower which is provided for in Article 7531, Vernon’s Civil Statutes. Article 7531 provides in part as follows:“The Board of Water Engineers shall adopt

rules and regulations, includingmodes of procedure, for the performance of the duties, powers, and functionsprescribed and vested in itby this Chapter, and for the enforcement of its provisions, and shallhave a seal, the form of which it shallprescribe. All such rules and regulationsmade for the administration and enforcementof the provisions of this Chapter, and that are reasonableand not in conflict herewith, shallbe binding uoon all oersons affectedbs such orovisions. The rules-and regulations shallbe-sprinted, and copies shallbe furnished to all interested persons upon application therefor,provided, that the Board,may at its discretion,make a reasonable charge therefor. After the rules and regulations shall have been adopted and printed, no amendment of an existing rule or no new rule shallbe made effectiveuntil at least thirty (30)days after copy of same shall have been published one time in a newspaper of general circulation in each of the threeWater Divisions described in Article 7475 of the Revised Civil Statutes of Texas, 1925.“.... (Eknphasis

supplied)
For the purpose of answeringyour request,we assume that Board Rule 615.1 was published as requiredby Article 7531, and was validly promulgated. The foregoingprovision conditions the Doard’s rule-makingpower as follows: (1) All such rules and regulationsmust be made for the administrationand the enforcementof Chapter 1 of Title 128 of the Revised Civil Statutes of Texas of 1925, as amended. (2) Such rules and regulationsmust be reasonable. (3) Such rules and regulations must not be in conflictwith existing statutes.

One of the duties of the Board under Chapter 1 of Title 128 is set forth in Article 7472d.of Vernon’s Civil Statutes asMr. DurwoodManford. Page 5 (WW-1037)

follows:
“It shallbe the purpose and policy of the

State and of the enactments in accord therewith, in effecting the greatestbeneficial utilization of waters of the State, to cause to be made all surveys essential to disclose themeasure and potential availability of the water resources of the State to uses recognized; and to ascertain from necessary investigation the character of the principal requirements of the distinct regional division of the watershed areas of the State for the uses herein authorized, to the end that distribution of the right to take and use the waters of the Statemay be themore equitably administered in the public interest,and privileges granted for the uses recognizedmay be economicallyco-ordinated,achieving themaximum of public value from this resource;and recognizingalike the distinct regional necessities for water control and conservation, and for control of harmful floods.” The Board is likewiseunder a duty to deny an application for a permit to appropriatepublic waters if the Board finds that there is no unappropriatedwater in the source of supply, if the proposed use will impair existingwater rights, or if the granting of the permit is detrimental to the public welfare. Art. 7506, V.C.S.

It would seem clear then that Board Rule 615.1 clearly meets the first two tests layed down in Article 7531, ie., (1)That the Rule made must be for the administrationand enforcement of Chapter 1 of Title 128 of the Revised Civil Statutes of Texas, 1925, as amended, and (2) that the Rulemust be reasonable.

It remains to be consideredwhether Board Rule 615.1 is in conflictwith cancellationproceduresprescribed by statute. Article 7519a, Vernon’s Civil Statutes,which was adopted by the Legislature in 1953, and authorized the cancellationof all water rights under which no wa.ter has been used for a period of ten consecutiveyears prior to January 1, 1955, and prescribes a definiteprocedure for the cancellationof permits under the conditions therein set forth. In 1957, the Legislature amended Article 7519a to authorize the cancellation of all or any part of the water rights to the extent thatwater has not been used thereunder during the lo-yearperiod prior to the institution of cancellationproceedings. Article 7519a prescribes specifically that)>i;;r.

D-~rwood

Manford, Pa.ge5 (W-1037)

notice of hearing and a hearing to be had before the Eoard proceeds to act pursuant to those statutoryprovisions, and this orcseduremust be followed under this type of cancellation. p.t; c Azc-,m ".‘?earing,where provided for by the Legislature for a specific function is a prerequisite to the jurisdictionof an administrativeagency to proceed to exercise that function. See Maryland Casualty Co. v. Lafield, 29 S.W.2d 444 (Civ.App 1930‘),

rev'd on other grounds, 119 7%~. 466, 33 S.W.;?d 187 (lC30)*and American Surety Co. of New York v. Mays, 157 S.W.2d iiird (Civ.App.1941,error ref.w.o.m.) There is, however, an importantdistinctionbetween cancellationunder Board Rule 615.1 and cancellationunder Article 7519a. Under Board Rule 615.1, only voluntar cancellations are authorized. *be afThe person whose rightsmigh fected by cancellationwaives any right he would Otherwise have to a notice and hearing. It is axiomatic that onemay waive such a right.

Article 7519a applies where cancellationsare involuntary. In such cases, notice and hearing is essential to any valid action of the Board.

We do not, therefore, construe the two procedures as being in conflict, and without such conflict, it is apparent that ward Rule 615.1meets the third limitationon the rule-making ,powerof the Board conferredby Article 7531.

You have also asked whether youmust wait until the ex- ,pirationof the current Eoard order extending the time for the District to commence constructionbefore proceeding under Board EJle 615.1. We see no basis for such a requirement,for the waiver executedby the Districtwaives all rights the District may have, includingall rights granted under the Board's order extending the time for the commencementof construction.

SUMMARY Under the facts submittedand assuming that all proceedings in promulgating the Rules, Regulations and Modes of Procedure of the Board of Water Engineers in 1953 and in the 1955 revisionwere regular, Board Rule 615.1 was valid when first adopted and when repromulgated in 1955. The Boardmay, under Board Rule 615.1, entertain cancellationof the subjectpermit prior to the expirationof the entension of time to commence. .-

Mr. DurwoodManford, Page 7 (W-1037)

constructionunder the subjectpermit.

Very truly yours,
WILL WILSON zez, 3,

BY Houghton Brownlee, Jr. Assistant HB:jh
APPROVED:
OPINION COMMITTEE w.V. Geppert, Chairman Iola BarronWilcox Robert Lewis Vernon Teofan Robert Rowland Sam Wilson
REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore