R-697 

E 7rroRNEY GENERAL 

0 EXAS 

AUUTIN XI.TEXAS 

September 10, 1947 

Hon. E. V. Sperm, Chainsan 

Board of Water Euglneere 

302 Went 15th Street 

Au&in, Texas Opinion Ho; V-372 

Re: Sale of stored waters 

by Brazos River Conservation and Reclamation 

District beyond the 

Brazos watershed 

Dear Sir: 

Your letter of July,25, 1947, raises the following question for our opinion: 

“Does the Brazos River Conservation and 

Raclamation District have the power to 

sell, deliver or contract to deliver 

stored water outside the Brazes River 

watershed? Has our Board any function 

in this regard?” 

The Brazos River Conservation and Reclamation 

District was created, Acts 1929, 4lst Legislature, 2nd 

ch s 4, ;iS;.vLEtSpage 22, Ch, 13, as amended. Title 128, 

Its boundaries are defined by a metes 

and b&nds dekGi&ion of th8 watershed of the Brazes 

River except for the counties of Freestone, Leon, and 

Madison (as smnded Acts 19.31, 1st C.S., Ch, 5, Sec. 1). 

Its powers, $n so far as they touch on the question pre8ent8d, are eet out in Sectfons 2 and 3 of the Act, Saction 2 grants broad, general power and authorizes the 

diatrlot to exercise all power conferred by the COnaerVation Aaendmnt to the Constitution, Article XVI, Sec. 59, 

and by general law3 such,district to have “authority and 

pow8r of control and regulation over ouoh storm and flood 

waters of the Brazes River and Its tributaries as may be 

exercised by the State of Texas.” Section 3 provides aa 

followa : 

“‘Sec. 3. The Brazes River Conservation 

and Reclamation District shall have and be 
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HOG. E, v. Spence - Page 2 (No. V-372) 

aerv:tlon and-beneficial utilization of 

storm, flood and unapp??oprlated flqw waters, 

the power of control and employment of such 

flood, storm and unappropriated flow waters 

of the raid district la the manner and for 

the particular purposes hereinafter set 

forth. 

“l(a) To provide through the only practical 

and legal means for the control and the coordination of the regiil8tionof the waters 

of the watershed of the Brazes River and its 

tributary streams as a unit. 

'1 (b) To provide by adequate organization 

and adminlstratlon for the preservatXon of 

the equitable rights of the people of the 

different sections of the watershed area in 

the beneficial us8 of storm, flood and unappropriated flow waters of the Brazos River 

and its tributary streams, 

“8 (c) For stosiri, controlling and conserving storm, flood and unappropriated flow 

waters of the Brazos River and its trlbutaries, and the wevention of the escape of 

y of such waters without>~~~_$xximum of ---.._ _ .,r 

i&l14 servfceg for the prevention of devastatTon 'ofX3nd~s from recurPent overflows, 

and the protection of life and property in 

such watershed area from uncontrolled flood 

waters. 

'r (d) For the conservatfon of waters essential for the domestic uses of the people of 

the watershed of the Brazos River and its 

tributaries, incYuding al1 necessary water 

supplies for cities and towns* 

"t(e) For the Irrigation of lands In the 

watershed of the Brazos River and Its tributary streams where irrigation is required 

for agricultural production; and for the 

equitable distribution of storm, flood and 
. - 

Ea. E. V. Spe8W - rage 3 (MO. V-372) 

unappropriated flow waters to the regional 

potential requirements for all w508. All 

plur md all work8 provided by raid dintricta, and aa well, all worka whiah.may be 

provided under authority of said district 

%?=veP?F 

regard to the necessary 

aa potentla no6 s for water, by or within 

the rerpeotive area8 constituting the water- 

;p$z tEe Braeos River and ite tributary 

. 

“l(f) For the better encouragement and development of drainage systema and provlsio~ 

for drainage of lands In the valleys of the 

Brazer River and its tributary stream needlng dra%uage for profitable agricultural production; and drainage for other lands in the 

watershed area of the district requiring 

drainage for the most advantageous u8e. 

“1 (g) For the purpose of conservation of 

all aoila against destructive erosion and 

thereby preventing the lnareased flood menace incident thereto. 

“l(h) To control and make available for employment flood, storm and unappropriated flow 

waters in the development of commercial and 

Industrial enterprises in al.1 sectiona of the 

,watershed area of the district. 

“*(I) For the control, storing and employment of flood, storm and unappropriated flow 

waters in the development and distribution of 

hydra-electric power, where such use may be 

economically coordinated with other and auperlor usea, and mbordlnated to the uses declared by law to be auperlor. 

?&)fl~~ froE&and everv oumo8e for 

upappropriated flow 

waters when controlled and conserved may b 

utilized In the performance of a useful. se:- 

vice as contemplated and authorized by the 

provisions of the constitution and the ~ubllc 

policy therein declared. 

‘l’(k) Nothing in this Act shall affect or 

repeal Articles 7496, 7500A of the 1925 Revised Statutes of 1925 as amended by Chapter 
lion, E. V, Spence - Page 4 (Nod v-372) 

128 Acts of ,the Regular Session of the 42nd 

Legislature." 

In our ginion No. V-319, addressed to you, we 

considered the power of the Lower Colorado River Authority 

to sell stored water for irrigation and manufacturing use 

beyond its boundaries and concluded that its pxesent Act 

did not confer thhis power. The Brazes Act was cited in 

the course of that oplnlon as being illustrative of a type 

of aot whiah contained no epeciflc authorization for sale 

of waters outside the boundaries of the district. It now 

becomes necessary to construe this act to determine whether the leglslatlve Intent therein expressed in general 

terms authorizes sales of water for use outside the dlstrlct under certain conditiona. 

The Brazer Act and Lower Colorado River Act differ in some very material respects. 

Se&ion 2 of each act sets forth certain general 

powem. Im Sectlen 2 of the Brazes Act, there la no express llm.ltatlon upon the general powers therein set out, 

The powers there granted are cumulative, Including all powem ‘contemplated and Implied by the purposes of this provision of the Constitution, and as may be conferred by General Law, and the provfsions of this Act*" On ,the other 

hand, Seotion 2 of the Colorado Act opens with the words 

"Except as expoesaly limited by this Act", the District 

shall have cedain general powers. Section 3 of the Brazoa 

Act provides that the District shall have certain specified 

vgreatest practicable measure of the conservation a& beneficial utfllzation of the storm, flood and unappropriated 

flow waters of said District in the manner and for the particular purposes hereinafter set forth,” 

By the terms of the Brazos Act, the part%cular 

powers are granted in addition to the general powers, In 

the Colorado Act, the general powers are limited by the particular powers. In the Colorado Act, the-o provisign 

aorresponding to subsection (3) of Section 3 of the Brazos 

Aat. In the Colorado Act, ther8 is no provision similar to 

that of Section 4 of the Brazes Act, which provides that 

the powers and duties of the Distriot shall be "taken subject to all legislative declarations of public policy In 

the maximum utilization of the storm, flood atdunappropriated flow waters of the Rrazos River watershed for the purposes for which the District 1s crested, 8s expressed 
Hon. E. V. Spence - Page 5 (Ho. V-372) 

and indicated ln this Act, and subdect to the continuing 

rtghte of mpe~siou” by the Board of Water Engineers. 

In the Colorado Aot, there 1s a careful catalog 

of the things that say be done by the Colorado Dlstrlct 

“within the boundaries of the Diatrfct” and other things 

that may be done “within or without the boundarleu of the 

Di8trlotr” For Instance, subsections (a) and (b) of Sectlon 2 of.the Colorado Act are a8 follows: 

“(a) to control, store and meaerve. 

jrithln-the boundaries of the Dletrict, thewaters of the Colorado River and its tributories for any UB( ?ful purpose, and to use, 

dietribute and sell the same, 

b ok und for -=9 any sue 

snmwet 

“(b) to develop and generate water 

power and electric energy within the boundaries of ,the District and to distribute an6 

sell water pow;;ea;d electric energy, wlthIn ,or without oundarles of the Dlstx%ot,” 

That distinction as to what may be done wlthln 

the Dletrlct and beyond the boundaries of the blstrlct ie 

carefully maintained through several of the aucceedlng subsections of Section 2 of the Colorado Act. Ho such disUnction le maintained In the statute by which the Brazoe 

District was created. 

Article 7590, V.C .S,, authorizea the Board of 

Water Engineere, upon application, to Issue a permit after 

notice and hearing, to take waters Prom one watershed In 

this State into another watershed, Article 7471, V.C.S., 

determlnea the priorities to be given in the allotment and 

appropriation of water. The Brazes Act 1s a special act 

relating primarily to waters of that District, and It would 

control over the statutes above mentioned in 80 far as It 

is inconsistent with such statutes. 59 C!,J, 936, Section % 

However, as relates to the flood, storm and unapproprlated flow waters which may be controlled and conserved, we 

find that the Brazoa Act is not inconsistent with the 

powers of the Board of Water %glneers as conferred by 

Articles 7472d, 7525, 7528, 7589, 7590 and 7591, V.C.S, 

In fact, Section 2 and Section 4 of the Act provide that 

the Dlatrlct~a powers are subject to other Legielative A&e. 
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Hon. E. V, Spence - Page 6 (No. V-372) 

We accor?Lngly hold that the Board of Dlrectors of the Brazos River Cctnservation and Reclamation 

District in determining whether or not to enter into a 

contract for the sale of excess stored waters shall give 

primary regard to the necessary and potential needs for 

water for the Irrigation of lands in the watershed of the 

Brazos.Rlver and Its tributary streams for Irrigation and 

domestic uses, and including all necessary water supplies 

for cities and towns within the District, The Dlstrlct 

would be authorized to sell for use outside of the watershed only surplus water If, as, and when available. After a determination on the part of t!le District to sell 

much surplus water for use outside of the wstershed, it 

Is necessary for the one who desires to remove the water 

from the watershed, whether it be the District or some 

other person, to apply to the Board of Water Qglneers 

for a rsmoval permit as authorized by Article 7590,, 

V.C.S. 

In passing "on the rights to be effected" by 

the Issuance of such a permit, the Board of Water Engineers 

shall take Into consideration, among others, the question 

of whether the waters which the District proposes to sell 

for removal outside the watershed is, In fact, surplus 

water, and the further question of the preference and priorities to which the residents of the watershed are entitled under Article 7471, V.C.S.: and the provisions of 

the Act creating the Brazes River Conservation and ReolallUh&Qn Dirtrlet. 

The permit which the Board of Water Engineers 

may issue for the removal of water outside of the Brazbs 

Blver watershed pursuant to ArtlLLe 7590, P,G,#+ $8 n&h- 

~&gig moTe than a 'remOv81 permit" subject to the tecR18 df 

the ~oontract between the District and the~purchaser of 

the YaBer, and such permit should afflrmatlveLly so state, 

SUMMARY 

The Brazos River Conservation and 

Recl8matlon District has authority to seL% 

surplus stored waters for use outside thh 

District. Before such water is moved outr&de the watershed of the Brazoa River, 

the peraon or agency desiring to make such 

removal must obtain a removal permit from 

the Board of Water Engineers, after notice 

and hearing, In accordance with Article 

7590., v. c. SC3 Acts 1929, 4lst Legislature, 
, - 

Bon. E. V, Spence - Page 7 (I?o. V-372) 

Second c. s., Special Laws page 22, ch. 13, 

as amended, being Title 126, ch. 8, note, 

V. C. S. A&u. 7589, 7590 and 7591, V.C.S. 

Very truly roum 

.‘ATTOEUW QEHBlAL OF TEW 

FD/wb/lh 

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