### TEE ATTORNEY GENERAL OF TEXAS

September 30, 1988

Ms. Betty Strohacker Opinion No. JR-961 President Upper Guadalupe River Re: Authority Authority of the Upper Guadalupe River Authority to P. 0. Box 1278 within Kerrville, Texas compel septic tank users 78029 its service area to connect to

a sewage gathering, transmission, anddisposal facility (RQ-1375)

DearMs. Strohacker:
You request anopinion concerning the authority of the Upper Guadalupe River Authority to compel septic tank users within the boundaries ofthe authority to connect to a sewage gathering, transmission,

authority, anddisposal system operated

- by the either by itself or pursuant to an

agreement with some other governmental entity permitted to contract with the authority forthe operation of such a system. You limityour questions toa sewage system within the service area of the authority, including: wholly

(1) locations within the corporate limits of a home rule city:
(2) locations within the extraterritorial jurisdiction of ahome rule city: (3) locations outside the corporate limits and extraterritorial jurisdiction ofahome rule city: (4) locations wholly within the corporate limits of a general law city: (5) locations within the boundaries of an entity authorized to provide sewage collection and disposal services pursuant to a Certificate of Convenience and Necessity; and (6) locations not within theboundaries ofany of the entities described in (l)-(5).

We conclude that the authority has nopower, either express or implied, to compel septic tank users to connect

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toa sewage system operated by it,either on its own behalf orpursuant toan agreement with some other governmental entity, including both home rule andgeneral law cities.

We also conclude that while home rule cities have the express power to compel property owners within the boundaries of the city to connect to sewage systems operated by them, they may notdelegate that power to the authority.
The authority has thepower topurify water before it returns to the groundwater table and hence to the river system. Thus, the authority may treat and dispose of sewage generated within its service area. parker v. San Jacinto CitvWater Control and Imnrovement District No. 1, 273 S.W.2d 586 (Tex. 1954). However, the authority has no general police powers to protect the public health and general welfare that can beused to force septic tank users to abandon those systems in favor ofa sewage system operated by it,nor any express power todo so. Powers may not be impliedmerely because they are convenient to the use of express powers. Tri-Citv Freshwater Suvvlv District No. 2ofHarris Countv v.Mann, 142S.W.2d 945, 948 (Tex. 1940).
The authority has express authority under its enabling statute and Water Code provisions to operate a sewage disposal system. See Acts 1971, 62d Leg., ch. 430, § 1, at 1586;Water Code 5 30.021 (regionalwaste disposal system): §51.331 (watercontrol and improvement district): g54.030 (municipal utility district). However, the authority to operate a sewage disposal system does not include the implied authority to require all septic tanks tobe connected with the system. Septic tanks are not parts of a sewer system. See, e.q., McWilliams v. 1063 (Kan. 1952); Barnes, 242 P.2d Lake Townshiv. McComb Countv v. Millar, 241N.W. 237. 239 IMich. 1932). Chapter 26 of the Water Code,which pertains towater .guality control, authorizes the Texas Water Commission to issue permits for the discharge ofwaste orpollutants into water inthe state. Water Code 926.027. The following definitions are applicable to chapter 26:

(‘5) 'Waste' means sewage, industrial waste, municipal waste, recreational waste, agricultural waste, or other waste, as defined inthis section.

. . . . (14) 'Sewer system' means pipelines, conduits, storm sewers, canals, pumping stations, force mains, and all other

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constructions, devices, and appurtenant appliances used to transport waste.
(15) 'Treatment facility* means any plant, disposal field, lagoon, incinerator, area devoted to sanitary landfills, or other facility installed for the purpose of treating, neutralizing, or stabilizing waste.
(16) 'Disposal system' means any system for disposing of waste, including sewer systems and treatment facilities.

Water Code § 26.001.
Section 26.031 of the Water Code defines "private sewage facilities" tomean

sevtic tanks, pitprivies, cesspools, sewage holding tanks, injection wells used to dispose of sewage, chemical toilets, treatment tanks, and all other facilities, systems, and methods used forthe disvosal of sewace other than disvosal **svstems** overated under avermit &e.suedbv the commission. (Emphasis added.)

Water Code 026.031. Thus, the chapter 26definitions show that septic tanks aredistinct froma sewer system and not part of one. The express power oftheUpper Guadalupe River Authority to operate a sewer system does not include the authority to regulate septic tanks by requiring their connection with the system. See also Local Gov't Code § 214.013 (providing that home rule cities may operate sewage systems and require connections with a sewer system operated by the city); Water Code 5 26.084(a)(l). (Water Commission may compel tie-in toregional orarea-wide waste disposal system designated under section 26.083 of theWater Code.)
The authority has assumed thepowers of a municipal utility district pursuant to section 54.030 of the Water Code, and therefore has the following statutory power:

A [MUD] may adopt and enforce reasonable rules and regulations to: (1) secure and maintain safe, sanitary, and adequate plumbing installations, connections, and appurtenances as subsidiarv parts of its sanitarv sewer svstem

. . . . (Emphasis added.)

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Water Code 554.205. It is suggested that the underlined language authorizes amunicipal utility district to require septic tank users to connect to a sewage treatment **system** operated by it. Section 54.205 does not grant such authority. A septic tank isnot a "subsidiary part" of the sanitary sewer system because itoperates in itsvlace.

No other provision in the Water Code specifically permits municipal utility districts to force connections by septic tank users to sewage disposal operated by it. Nor do we think that such apower canbe implied from the express powers granted to the authority in the code. Ordinarily, forcing septic tank users to connect to a sewage system can onlybe considered tobe convenient, andnot necessary, to the operation ofa sewage system by aMUD. Tri-Citv Freshwater Suvvlv District, suvra.
The legislature has, moreover, recognized that septic tanks inthe appropriate circumstances are adequate means to preserve the waters subject to the jurisdiction of the district. The 70th Legislature enacted a statute regulating the location, design, construction and operation of on-site sewage disposal **systems,** including septic tanks. Acts 1987, 70th Leg., ch. 406, 51, at 1932 (codified at V.T.C.S.):l see V.T.C.S. art. 4477-7e, 52(7). 4477-7e, The purpose clause includes the following legislative findings:

(2) on-site sewage disposal systems, when properly designed and constructed in suitable soils, provide a safe and adequate method of sewage disposal; and (3) insome areas of the state, the soil isnot suitable 

### fornormal underground sewage disposal and the improper and unapproved construction and installation of on-site sewage disposal inthose areas has created conditions dangerous to thepublic health.
V.T.C.S. art. 4477-7e, 5l(b).
The Department ofHealth or its authorized agent is responsible for adopting rules regulating on-site sewage

1. Two other statutes adopted by the 70th Legislature were also codified asarticle 4477-7e, V.T.C.S. See Acts 1987, 70th Leg., ch. 162, at 1327:Acts 1987, 70th Leg., ch. 810, at 2808. ‘1

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disposal and issuing permits tobuild, alter, repair, extend oroperate an on-site sewage disposal system. V.T.C.S. art. 4477-7e, 9s 4, 7. A city, county, river authority, or special district may bedesignated an authorized agent by the department andmay then exercise the regulatory powers set out in article 4477-7e, V.T.C.S. To become an authorized agent, a local government must, among other statutory requirements, enter an order orresolution which meets the department's minimum requirements for on-site sewage disposal systems. Id. 55(c). Article 4477-7e, V.T.C.S., isdirected at assisting "the state's citizens inobtaining safe and adequate on-site sewage disposal systems," not at prohibiting them. Id. 5l(a). The department or anauthorized agentmay refuse a permit to construct an on-site sewage disposal system if issuing itwould conflict with the public policy declared under the statute or with other applicable laws, id. 57(e)(2), butmay notdeny any and allpermits or require all septic tanks tobe connected to a sewage system. Moreover, nopermit isrequired foranon-site sewage disposal system 

### fora single residence on a land tract of 10acres or larger, subject tomeeting statutory conditions designed to protect thepublic health. Id. 57(f). The authority may not rely onarticle 4477-7e, V.T.C.S., to require septic tanks tobe connected to its sewage disposal system. The statute also expresses the legislature's intent to allow properly designed and constructed septic tanks and other on-site sewage disposal systems to exist, id. §l(b)(2),and itsrecognition that insome areas of the state the soil is not suitable for normal underground sewage disposal. Id. §l(b)(3). The legislature's findings and expression of intent inarticle 4477-7e and itsadoption of comprehensive regulations applicable to septic tanks lend additional support to our conclusion that the authority may not rely on implied authority toregulate septic tanks requiring connectionswith their sewage system.
The authority suggests that because the Local Government Code allows home rule cities to force connections with sewage collection systems operated by the city, such apower canbe delegated by ahome rule city to the authority. We disagree. Chapter 30 of theWater Codepermits cities to contract with the authority for the operation of sewage disposal systems. Water Code §f,30.021-035. However, the Local Government Code specifies that QP& a home rule citymay "provide fora sanitary sewer system" and "require property owners to connect to the sewer system." Local Gov't Code 5214.013.

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Theprovision of sewage collection, transportation, and disposal is a governmental function of a municipality. Dillev v. Citv ofHouston, 222 S.W.2d 992 (Tex. 1949); see also Gotcher v. Citv of Fannersville, 151 S.W.Zd 565 (Tex. 1941). cf. Local Gov't Code 5402.063(e). A municipality may notdelegate agovernmental function to another political subdivision soasto lose control over the discharge of the function or to inhibit the exercise of necessary discretion by the municipality concerning the function. C'v ofFarmers Branchv. Citv ofAddison, (;:x.App 694 S.W.2d 94

.-Dallas 1985,writ ref'd n.r.e.); Pidelitv Land 8Trust Co.v. Citv ofWest Universitv Place, 496 S.W.Zd 116 (Tex.Civ. App. - Houston [14th Dist.] 1973, writ ref'd n.r.e.). Thus, while a home rule city may by statute contract with the authority for the collection, transportation, and disposal of sewage, and cities which have thepower to force property owners to connect to their sewage systems may force them to connect with the sewage system operated by the authority, such cities may not surrender that power completely andunequivocally tothe authority as acondition of such a contract. Citv ofFarmers Branch, suvra.
---. Inconclusion, the authority hasno power to require semtic tanks within itsboundaries to connect to a sewage sy'stemwhich itoperates.
SUMMARY
TheUpper Guadalupe River Authority, which possesses cumulatively the powers of a water control and improvement district and a municipal utility district, has nopower to force septic tank users to connect to a sewage disposal system operated by the entity. Home rule cities may require septic tank users to connect to a sewage system operated by the city inside of its corporate limits, but the citymay notdelegate that power toany other governmental entity orpolitical subdivision.

Ver truly yo , 

# J AfQdh

& -J I

### M MATTOX Attorney General ofTexas

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MARY KELLER FirstAssistant Attorney General
LOUMCCREARY Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General
RICK GILPIN Chairman, Opinion Committee Prepared by Susan L.Garrison and D.R. Bustion, II Assistant Attorneys General

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