### R-697

E 7rroRNEY GENERAL

0 EXAS 

### AUUTINXI.TEXAS
September 10, 

### 1947

Hon. E. V. Sperm, Chainsan Board of Water Euglneere 302 Went 

### 15thStreet Au&in, Texas Opinion Ho; V-372
Re: Sale of stored waters byBrazos River Conservation andReclamation 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? Hasour Board any function in this regard?”
TheBrazos River Conservation andReclamation District was created, Acts 1929, 4lst Legislature, 2nd c s h 4, ;iS;.vLEtSpage 22, Ch, 13, as amended. Title 128, Its boundaries are defined by ametes andb&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, $nso far as they touch on the question pre8ent8d, are eet out in Sectfons 2and 3of the Act, Saction 2grants broad, general power and authorizes the diatrlot to exercise all power conferred by the COnaerVation Aaendmnt to the Constitution, Article XVI, Sec. 59, andby general law3 such,district to have “authority and pow8r of control andregulation over ouoh storm andflood waters of the Brazes River andIts tributaries as maybe exercised by the State of Texas.” Section 3provides aa followa :

“‘Sec. 3. TheBrazes River Conservation andReclamation District shall have andbe- ,

HOG. E, v. Spence - Page 2 (No. V-372)

aerv:tlon and-beneficial utilization of storm, flood andunapp??oprlated flqw waters, the 

### power of control andemployment of such flood, storm andunappropriated flow waters of the raid district la the 

### manner andfor the particular purposes hereinafter set forth.

“l(a) Toprovide through 

### the only practical andlegal meansfor the control andthe coordination of the regiil8tionof the waters of the watershed of the Brazes River and its tributary streams as aunit.
'1 (b) Toprovide by adequate organization andadminlstratlon 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 andunappropriated flow waters of the Brazos River and its tributary streams,

“8 (c) For stosiri, controlling and conserving storm, flood andunappropriated flow waters of the Brazos River andits trlbutaries, andthe 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 andproperty 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 andtowns* "t(e) For the Irrigation of lands In the watershed of the Brazos River andIts tributary streams where irrigation is required for agricultural production; andfor 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 andprovlsio~ for drainage of lands In the valleys of the Brazer River and its tributary stream needlng dra%uage for profitable agricultural production; anddrainage 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) Tocontrol andmakeavailable for employment flood, storm andunappropriated 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 andunappropriated flow waters in the development anddistribution of hydra-electric power, where such use maybe 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 whencontrolled and conserved mayb utilized In the performance of auseful. se:- vice as contemplated andauthorized by the provisions of the constitution andthe ~ubllc policy therein declared.

‘l’(k) Nothing in this Act shall affect or repeal Articles 7496, 7500Aof the 1925Revised Statutes of 1925 as amendedby Chapterlion, E. V, Spence - Page 4 (Nodv-372)

128Acts of ,theRegular 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 andmanufacturing use beyond its boundaries and concluded that its pxesent Act did not confer thhispower. TheBrazes 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 wheth

### er the leglslatlve Intent therein expressed in general terms authorizes sales of water for use outside the dlstrlct under certain conditiona.

TheBrazer Act andLower Colorado River Act differ in somevery material respects.

Se&ion 2of each act sets forth certain general 

### powem. ImSectlen 2of the Brazes Act, there la no express llm.ltatlon upon the general powers therein set out, Thepowers there granted are cumulative, Including all powem ‘contemplated and Implied by the purposes of this provision of the Constitution, andas maybe conferred by General Law, and the provfsions of this Act*" On,theother hand, Seotion 2of the Colorado Act opens with the words "Except as expoesaly limited by this Act", the District shall have cedain general powers. Section 3of the Brazoa Act provides that the District shall have certain specified

vgreatest practicable measure of the conservation a& beneficial utfllzation of the storm, flood andunappropriated flow waters of said District in the mannerand for the particular purposes hereinafter set forth,”

Bythe 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 3of the Brazos Aat. In the Colorado Act, ther8 is noprovision 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 expressedHon. E. V. Spence - Page 5 (Ho. V-372)

andindicated 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” andother things that maybe done “within or without the boundarleu of the Di8trlotr” For Instance, subsections (a) and (b) of Sectlon 2of.the Colorado Act are a8 follows:

“(a) to control, store andmeaerve. jrithln-the boundaries of the Dletrict, thewaters of the Colorado River andits tribu?ful purpose, andto use, tories for anyUB( dietribute and sell the same, bund -=9 ok for anysue snmwet

“(b) to develop andgenerate water power and electric energy within the boundaries of ,the District andto distribute an6 sell water pow;;ea;d electric energy, wlthIn ,orwithout oundarles of the Dlstx%ot,”
That distinction as to whatmaybe donewlthln the Dletrlct andbeyond the boundaries of the blstrlct ie carefully maintained through several of the aucceedlng subsections of Section 2of the Colorado Act. Hosuch disUnction le maintained In the statute bywhich the Brazoe District was created.

Article 7590, V.C.S,, authorizea the Board of Water Engineere, upon application, to Issue a permit after notice andhearing, 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. TheBrazes Act 1s a special act relating primarily to waters of that District, andIt would control over the statutes above mentioned in 80far as It is inconsistent with such statutes. 59C!,J, 

### 936,Section % However, as relates to the flood, storm andunapproprlated flow waters which maybe 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 2andSection 4of the Act provide that the Dlatrlct~a powers are subject to other Legielative A&e.- .

Hon. E. V, Spence - Page 

### 6 (No. 

### V-372)

Weaccor?Lngly hold that the Board of Dlrectors of the Brazos River Cctnservation andReclamation 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 andpotential needs for water for the Irrigation of lands in the watershed of the Brazos.Rlver andIts tributary streams for Irrigation and domestic uses, andincluding all necessary water supplies for cities andtowns within the District, TheDlstrlct would be authorized to sell for use outside of the watershed only surplus water If, as, andwhenavailable. After a determination on the part of t!le District to sell muchsurplus water for use outside of the wstershed, it Is necessary for the one whodesires 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 byArticle 7590,, V.C.S.
In passing "on the rights to be effected" by the Issuance of such apermit, the Board of Water Engineers shall take Into consideration, amongothers, the question of whether the waters which the District proposes to sell for removal outside the watershed is, In fact, surplus water, andthe further question of the preference andpriorities to which the residents of the watershed are entitled under Article 

### 7471,V.C.S.: andthe provisions of the Act creating the Brazes River Conservation andReolallUh&QnDirtrlet.

Thepermit which the Board of Water Engineers mayissue for the removal of water outside of the Brazbs Blver watershed pursuant to ArtlLLe 7590, P,G,#+ $8n&h- ~&gig moTethan a 'remOv81permit" subject to the tecR18df the ~oontract between the District andthe~purchaser of the YaBer, and such permit should afflrmatlveLly so state,
SUMMARY TheBrazos River Conservation and Recl8matlon District has authority to seL% surplus stored waters for use outside thh District. Before such water is movedoutr&de the watershed of the Brazoa River, the peraon or agency desiring to makesuch removal must obtain a removal permit from the Board of Water Engineers, after notice andhearing, In accordance with Article 7590., v. c. SC3Acts 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 QEHBlALOFTEW

FD/wb/lh

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