             TEE    ATTORNEY          GENERAL
                       OF TEXAS

                          Noveuber25, 1987




    Honorable Terra1 R. Smith            Opinion No. JM-827
    Chairman
    Natural Resources Committee          Re: Authority of an Under-
    Texas House of Representatives       ground Water Conservation
    P. 0. Box 2910                       District created under the
    Austin, Texas   78769                authority of article XVI,
                                         section 59, of the Texas
                                         Constitution

    Dear Representative   Smith:

         you ask several questions about a statute enacted by
    the 70th Legislature, &8~ Acts 1987, 70th Deg., ch. 992,
    at 6764 (enacting S.B. No. 1518 hereinafter referred to as
    the bill), creating the Anderson County Underground    Water
    Conservation District. The legislature enacted the bill
P   pursuant to the authority of article XVI, section 59, of
    the Texas Constitution,    a provision    authorizing    the
    creation of special districts to conserve and develop    the
    state's natural resources.  It has been suggested that the
    district was created  solely in an attempt to regulate     a
    proposed hazardous waste management facility in the area.
    The facility in question plans to use space created by the
    dissolution of salt within a salt dome (the Keechi Dome)
    for the storage of hazardous wastes.         The    facility
    proposes to use fresh groundwater from the Carrizo-Wilcox
    Aquifer to dissolve salt within the Keechi Dome.         The
    brine dissolved  from the dome will be injected         into
    another aquifer, a saline aquifer. your questions      focus
    primarily on the fact that section 12 of the bill grants
    the district powers that you assert have not been granted
    to other article XVI, section 59, districts.

         Section 5 of the bill states:

           Except to the extent of any conflict with
P          this Act or as specifically limited by this
           Act, the district is governed by and subject
           to Chapter 52, Water Code, and has all the
           powers. duties.  authorities. and resnonsi-
           bilities nrovided bv Chanter 52, Water Code,




                               p. 3946
Honorable Terra1 R. Smith - Page 2   04-827)
                                                                    ,




       except the authority to issue bonds and levy
       taxes under Subchapters G and Ii, Chapter 52,
       Water Code.  (Emphasis added.)                           -.
     Section 12 of the   bill provides   for the    following
additional powers:

           (a) The district    may   prohibit    the
       pumping  or use    of groundwater   if    the
       district determines that the pumping would
       present an unreasonable risk of pollution.

           (b) The district may limit the      pumping
       of groundwater  to uses determined      by the
       board to benefit the district.

           (c) The district may require persons
       holding a permit  for an injection well to
       purchase water from the district.

          (d) The district may adopt regulations
       for the disposal  of salt dome leachate   in
       the district or may require disposal of salt
       dome leachate outside the district.
                                                                T.
     your first question is whether the bill creating    the
district violates article   III, section 56, of the Texas
Constitution.   Article   III, section 56, states       "The
Legislature shall not, extent as otherwise     vrovided   in.
this Constitution,   pass any     local or special      law"
(emphasis added) on certain enumerated      subjects.    See
Attorney General Opinion JM-535     (1986).   Article   XVI,
section 59, provides  express constitutional authority    to
enact laws that operate only in geographically      defined
areas and that grant powers applicable only in that area
with regard to conserving     and developing   the state's
natural resources. See Brown v. Memorial Villaaes     Water
Authoritv, 361 S.W.Zd 453, 456   (Tex. Civ. App. - Houston
1962, writ ref'd n.r.e.);      see also Attorney    General
Opinion M-871 (1971).

     Article III, section 56, also provides that "where a
general law can be made applicable,   no local or special
law shall be enacted."      The brief submitted    by the
proposed hazardous   waste management   facility suggests       ?
that, because the legislature has defined   the powers  of
underground water conservation districts in chapter 52 of
the Texas Water Code, a general     law, the legislature
cannot define the powers of such a district in a special
                                                                ?


                           p. 3947
Honorable Terra1 R. Smith - Page 3    (JM-827)




law. The language in article III, section 56, however,
must be construed  in context with the first sentence    of
the provision and with the whole of article III, section
56.   As indicated,   section 56 recognizes    that other
provisions of the Texas Constitution may provide    express
authority   for certain local and special     laws.     The
argument that chapter 52 of the Water Code could consti-
tute the exclusive     authority  for underground     water
conservation districts ignores the fact that chapter     52
was enacted to grant powers to districts created pursuant
to article XVI, section 59, of the Texas Constitution.
Without this constitutional authority, chapter 52 would be
meaningless because most of the districts to which chapter
52 applies could not have been created. The fact that a
general law is capable of providing for some district
powers does not mean that article       III, section 56,
requires that general law define all of the powers of all
districts.

     A similar argument is that the bill violates      article
III, section   56, because the bill grants powers          not
generally made available to such districts,          i.e.,  it
exceeds the powers granted       in chapter 52 of the Water
Code. The dispositive question, however, is not whether
the legislature has given the same powers to other
districts in chapter 52 of the Texas Water Code.           The
purpose for special districts       is to operate   solely in
geographically defined areas to serve the special needs of
the area defined.    Chapter 52 of the Water Code simply
enumerates certain guidelines,       powers,  and duties   for
underground water districts     to prevent waste, pollution,
and drawdown   of the water table. Chapter        52 contains
general powers that may be used by any district       governed
by chapter   52. The legislature      has granted   additional
powers to solve the special problems faced by particular
districts to numerous districts       created over the years
under article XVI, section 59. General         laws governing
article XVI, section 59, districts apply to such districts
only when the general laws are not inconsistent with the
special acts creating the districts.      Hidalao County Water
C ntrol and I nr      n District No. 1 v. Hidalao      Countv,
ly4 S.W.Zd 46:, i?e(:ex.     Civ. App. - San Antonio     1939,
writ ref'd): see also Attorney General Opinion m-706
(1987). Consequently, chapter 52 cannot limit the powers
granted by the bill in question.      See also Acts 1987, 70th
Leg., ch. 992, 55, at 6766 (chapter 52 applies to district
only to extent it does not conflict with bill).




                           p. 3948
Honorable Terra1 R. Smith - Page 4    W-827)




     The dispositive question is simply whether the powers
granted by the bill in question are within the general
scope of powers contemplated   by article XVI, section    59.
m   Attorney General Opinion M-871; Ef, Davis v. CitV      of
Lubbock  326 S.W.2d 699, 710 (Tex. 1959) (the legislature
is not iimited to creating the governmental bodies       that
are specifically  set out in the Texas Constitution).
Article XVI, section 59, does not restrict expressly      the
powers of the districts   it authorizes the legislature    to
create. Nor does it provide that the powers         of such
districts must be uniform.     As indicated,   article   XVI,
section 59, was intended to authorize non-uniform laws to
meet the needs of specific areas.       Subsection    (b) of
section 59 provides that districts may hold "the authority
to exercise  such rights, privileges and functions       con-
cerning the [conservation of natural resources] as may be
conferred by law." Additionally,    as a general rule, the
legislature may enact any law not prohibited by the state
or federal constitution.    Brkins   v. State,   367 S.W.2d
140, 145 (Tex. 1963); see, e.a,, Davis v. Citv of Lubbock,
sunra.

      The brief from the proposed hazardous waste manage-
ment facility suggests that regulation        of groundwater
within the boundaries of the district will have no effect
on groundwater   conservation   because  of the relatively
small size of the district in relation to Anderson      County
and in relation to the major aquifer in the area.          The
brief asserts that, for this reason, the district's
boundaries may not bear a rational      relationship to the
purposes for article XVI, section 59, districts.      It has
been alleged that the sole purpose of the district is to
regulate the proposed hazardous waste management     facility
within the district.    The argument is that this exceeds
the general scope of power contemplated      by article   XVI,
section 59, and is therefore    an invalid local or special
law because it is not "authorizedI' by article XVI, section
59.    For example,   in Attorney    General   Opinion W-871
(1971), the Attorney    General   struck down a local law
prohibiting hog pens within a certain distance of resi-
dences because it was not within the power to regulate
tivest~cka~anted~ in article XVI.. section 23.. of the Texas
 Constitution.  As indicated, however, the legislature       is
 not limited to creating the governmental bodies described
 in article XVI, section 59. Davis v. Citv of Lubbock, 326
 S.W.2d at 710.

     Moreover, this office cannot say as a matter of law
that this district's boundaries  and powers do not relate




                            p. 3949
Honorable Terra1 R. Smith - Page 5   (JM-827)




to the water conservation   powers contemplated by article
XVI, section 59. The legislature made a legislative      fact
finding that there exists a public necessity to create
this particular  underground   water district   pursuant   to
article XVI, section 59. This office cannot         "second-
guess** the legislature's     fact-finding.    The   opinion
process was not intended or designed to resolve complex
factual disputes. Additionally, a statute under constitu-
tional scrutiny should be upheld if reasonably     possible.
1
Stat      e .                                       v. Texas
Municinal Power Aaencv    565 S.W.2d 258, 266 (Tex. Civ.
APP. - Houston [lst Disi.] 1978, writ dism'd) . For these
reasons, the bill creating the Anderson County Underground
Water Conservation District does not on its face violate
article III, section 56, of the Texas Constitution.

     Your second question  is premised   on the assumption
that the bill grants the district the power to indirectly
affect the location, construction,     or operation  of a
hazardous waste management facility. You ask whether this
power is violative of the Texas Solid Waste Disposal Act,
article 4477-7, V.T.C.S. See also Tex. Water Code ch. 27
(the Injection Well Act). Section 4(e)(6) of article
4477-7 provides that a facility that obtains a permit from
the Texas Water Commission pursuant to section 4(e) shall
not be required to obtain a permit        for the siting,
construction or operation of the facility from any local
government or other political subdivision    of the state.
Section 4(e)(6) also prohibits political subdivisions from
enacting rules, regulations,  or ordinances that conflict
with or are inconsistent with state requirements       for
hazardous waste management facilities.     The Solid Waste
Disposal Act contemplates that the Texas Water Commission
shall have exclusive power regarding the impact          on
groundwater of the siting, construction, or operation    of
hazardous waste management facilities.

     This argument appears to be that the exercise         of
powers granted to the district    in section 12 of the bill
will necessarily  interfere with the construction      of a
particular  hazardous    waste facility.      It has    been
suggested that only a uniform, state-wide policy regarding
the siting, construction and operation of hazardous    waste
management  facilities will enable Texas to         maintain
adequate disposal capacity       for wastes generated      by
industries within   its borders.    The effect a series of
bills such as the one at issue here could have on the
uniformity of the state‘s regulation in this subject    area
may be significant.    It must, however,   be presumed  that




                           p. 3950
Honorable Terra1 R. Smith - Page 6   Of-827)




the legislature considered relevant policy questions   when
it enacted the bill creating the district in question.
See al o Smrth v. Davie 426 S.W.Zd 827         (Tex. 1968)       -
(wisdoi of law is legisiature's     prerogative,   not the
courts') .

     The legal basis of this argument appears to be that
because site preparation    such as dissolving   salt in the
Keechi Dome is directly related to the construction of a
hazardous   waste   facility, the powers granted       to the
district in section 12 of the bill conflict with the Texas
Water Commission's    jurisdiction  to control the siting,
construction, and operation of hazardous waste facilities.
It is not clear whether       the bill in question      is in
lqconflict'*with the Texas Water Code in the manner        you
suggest.    Although   there clearly exists some overlap
between the effect of the powers that may be exercised      by
the district,   it is not clear that the two pieces         of
legislation conflict in the legal sense that they cannot
both be given effect. $2~ Cole v. State 170 S.W. 1036,
1037 (Tex. 1914)    (effort must be made 40 reconcile      two
statutes that appear to be in conflict).    In the event of
an irreconcilable     conflict,  the latest expression      of
legislative intent ordinarily controls.       lTe!sid.   Addi-
tionally, as indicated, general laws apply to article XVI,
section 59, districts only when the general laws are not
inconsistent with the special acts creating the districts.
Ridalao Countv WCID N 0. 1 v. Hidalao County    134 S.W.2d at
467. The Solid Waste Disposal Act and the'bill        creating
the Anderson      County Underground    Water    Conservation
District, however, are not on their face in irreconcilable
conflict. An attempt must be made to give effect to both.

     On the other hand, whether the actual application   of
particular rules and regulations    of the district may
conflict with the Water Commission's exclusive  permitting
authority under section     4(e)(6) of article      4477-7,
V.T.C.S.,  depends on specific rules and       regulations
enacted by the district and on the facts surrounding their
application.  Under section 4(e)(6), the party challenging
the district's rules must shoulder the burden of proving
that the rule is in conflict with state requirements.

     Your third question is whether the bill violates  the
equal protection requirement of article I, section 3, of
the Texas Constitution insofar as the bill authorizes  the
district  to require   injection-well  permit holders   to
purchase water from the district. Article I, section    3,
is roughly analogous to the equal protection clause of the




                           p. 3951
Honorable Terra1 R. Smith - Page 7     (m-827)




Fourteenth Amendment    to the United States Constitution,
which prohibits the discriminatory treatment of similarly-
situated persons. &8 San Antonio Retail Gr er , In
&afferty, 297 S.W.2d 813     (Tex. 1957).   DiEerLt    F&2
classifications are not, however, prohibited        if there
exists a "rational basis"     for the classification.    See
Attorney General Opinion JM-766 (1987) (and cases cited
therein).   The test of a "rational basis@' under article I,
section 3,   is whether   any basis for the classification
exists that could have seemed reasonable to the legisla-
ture. San Antonio Retail Grocers v. Lafferty, 297 S.W.2d
at 815; Texas Board of Private Investiaators and Private
Securitv AaPncies    . B x r C UntV Sheriff's ReSeNe,    589
S.W.2d 135, 137    (zex.eC?v. EPP. - San Antonio 1979, no
writ).    Legislation   limited in operation    to a small
portion of the state or prescribing     different rules for
distinct   geographic   areas is    not invalid on     equal
protection grounds when there exists a reasonable      basis
for the distinction and all similarly-situated persons    in
the geographic area are treated equally. Wouton v. State,
627 S.W.2d 765, 767 (Tex. App. - Houston [lst Dist.] 1981,
no writ).

     The brief submitted by the hazardous waste management
facility affected by the bill suggests two basic equal
protection arguments  against the bill. First,          that no
reasonable basis exists for regulating groundwater         users
within the particular boundaries       of the district   because
of the relatively small size of the district in relation
to Anderson County and in relation to the major aquifer
underlying the district.        The brief suggests that the
boundaries of the district were drawn to center around one
specific injection-well operation.       Part of this argument
is that no reasonable         basis exists     for   regulating
injection-well permit holders within the district and not
regulating other injection-well        permit holders    located
over the affected aquifer.           The second basic      equal
protection argument is that injection-well permit holders
as a class do not have sufficiently unique characteristics
as groundwater users to justify the different          treatment
contemplated by section 12(c). The legislature,         however,
apparently   found some basis both for           distinguishing
injection-well permit holders from other users of ground-
water and for defining the' particular area covered by        the
district.  At least one Texas case upheld the creation         of
a subsidence district that did not include surrounding
areas containing wells that contributed to the subsidence.
See Beckendorff   v. Harris ’ - Gal veston  Coastal Subsidence
District, 558 S.W.2d 75 (Tex. Civ. APP. - Houston           [14th
Honorable Terra1 R. Smith - Page 8     (JM-827)




Dist.] 1977), agf'd ner cur&@      563 S.W.2d    239   (Tex.
1978). The court was persuaded that the greater    severity
of the problem   in the area of the district      justified        -,
different treatment.   Whether the area covered by the
Anderson County Underground Water Conservation District is
such that it justifies different treatment     and whether
injection-well permit holders have special characteristics
as groundwater users that affect underground water conser-
vation depend on complex questions of fact. The opinion
process was not designed to resolve        fact questions.
Thus, this opinion cannot resolve your equal protection
question.

     Your fourth question is whether the bill fails to
contain sufficient   standards to guide the exercise          of
authority delegated to the district in section 12. It is
well-established that the legislature may not delegate its
power to make law. See Tex. Const. art. III, 51; see also
Tex. Const. .art.
                . II, 51; Houslna A thoritv of Citv of
    as            bothqgl 143 S.W.2d ;9      86 (Tex.     1940).
The legT;lature'may, ho&ever, delegate khe tasks of making
rules and of making determinations        of fact to which
existing law and legislative policy are to apply so long
as the legislature     provides   standards   to guide       the
exercise   of   delegated  powers . and
                                      *    duties.       Housing
Authoritv of Citv of Dallas    . Hia-            143 S.W.2d at
87.  Such standards may be Broad when"cozditions must be
considered that cannot be investigated       conveniently     or
effectively by the legislature.    Id.; State ex rel. Grimes
                                             MUniCiDal     Power
                                         Committee v. Dallas
                                        554 S.W.2d     924, 928
                                           for delegation     in
terms of unconstitutional    vagueness    under the federal
Constitution).   Thus, this opinion cannot resolve your
equal protection question.

     The specificity of standards required depends on the
nature of the power, the agency exercising the power,     and
the subject matter      covered.   See Texas     Anticuities
m,         554 S.W.2d   at 927. In the Texas Anticuities
Committee case, the Texas Supreme Court found insufficient
standards in a statutory grant of authority to preserve
"buildings of historical   interest" to justify denying     a
permit to demolish    certain buildings.    554   S.W.Zd at        ?
927-28; see also Snann v. Citv of Dallas,      235 S.W.   513
(Tex. 1921).. In. contrast, in Housina Authority of Citv of
Dallas v. Hiaainbotham     143 S.W.2d at 86, the Texas
Supreme Court upheld 'the Housing Authorities        Law, a




                            p. 3953
    Honorable Terra1 R. Smith - Page 9    (JM-827)




    statute containing a list of general factors to guide the
    authority in determining whether certain housing     condi-
-   tions were detrimental  to the public safety and health.
    The act, however,  left to the discretion of the housing
    authority the power to determine whether a public need for
    housing improvements existed in a particular area.      The
    Supreme Court concluded that "taking into consideration
    the varying conditions throughout   the state to which the
    law must apply, we conclude that the legislature        has
    furnished a sufficient guide for the housing    authority."
    143 S.W.2d at 87.    Similarly, in State ex r e 1 . Grimes
                                                      al Power
                                the court of appeals upheld    a
    statute that granted an agency relatively broad powers to
    provide for electric power. m     V.T.C.S. art. 1435a.

         Section 12 of the bill in question does not consti-
    tute a standardless      delegation.   Subsections   (a) and
    (b) of section   12 are the only non-specific      grants   of
    authority in section 12. Subsection (a) grants authority
    to "prohibit the pumping or use of groundwater        if the
    district determines   that the pumping would present        an
    unreasonable risk of pollution."       What constitutes     an
    %nreasonable    risk of pollution"     in particular    cases
P   depends on conditions that cannot be conveniently           or
    effectively investigated by the legislature.    Accordingly,
    such standards are not overly broad. &2.9 Rousina Authority
    Pf Cl y    f Dallas    . Hicram          143 S.W.2d at 87.
    SubseEtioz   (b) prozides    "The diskrict may limit the
    pumping of groundwater to uses determined by the board to
    benefit the district." The phrase "benefit the district,"
    when taken alone, appears overly broad. The phrase must,
    however, be ConStNed      in the context   of article XVI,
    section 59, and of the bill as a whole. The bill and the
    constitutional provisions pursuant to which it was enacted
    relate to the conservation     of underground  water in the
    district.   The phrase "benefit the district"      refers to
    conserving   underground    water resources.     The    steps
    necessary to do so depend on the specific conditions
    prevailing in the district    -- conditions the legislature
    cannot adequately anticipate. Additionally, section 5 of
    the bill provides that, except to the extent of conflict
    with the bill, the district    shall be governed by chapter
    52 of the Texas Water Code. See aenerallv Hidalao      County
    1
    Water Co t
    Countv, 134 S.W.2d 464 (Tex. Civ. App. - San Antonio 1939,
    writ ref'd)   (provisions of general law apply to such
    districts when the provisions are not inconsistent        with
    special acts of their creation).     The bill, by reference




                                p. 3954
Honorable Terra1 R. Smith - Page 10    (JM-827)




to chapter   52, contains ample standards   to guide the
district's aCtiOnS.  See. e.a,, Tex. Water Code 5552.151,
52.166, 52.169, 52.170.                                         -7
     Your fifth and final question is whether   subsection
(c) of section 12 of the bill works a taking without
compensation in violation of article I, section 17, of the
Texas Constitution.  Article I, section 17, of the Texas
Constitution provides, in part:

          No person's property    shall be taken,
       damaged or destroyed    for or applied    to
       public use without    adequate compensation
       being made, unless by the consent of such
       person: and, when taken, except for the use
       of the State, such compensation    shall be
       first made, or secured by a deposit       of
       money. . . .

&2R Citv f Colleae Station v. Turtle Rock Cornoration
680 S.W.2: 802   ITex. 1984). A Vakinal' results from aA
exercise of the 'government's eminent domain power.      The
term, a *%aking,*1 ordinarily refers to an unconstitutional
taking, &,     one without compensation.
                                                                ?
     Under certain circumstances,    property may be appro-
priated constitutionally by government action without     any
compensation as an exercise of the state's police power --
the power to protect the public health,         safety,   and
welfare.   Attorney   General Opinion JM-600     (1986) (and
cases cited therein).     Traditional Vaking" law analysis
distinguishes the police power from the eminent        domain
power by focusing on whether the government is preventing
a public harm as opposed to forcing a private party to
give property   for a public benefit.     The Texas Supreme
Court, however, holds that property may not be taken
without compensation    under certain circumstances,     even
in the exercise of the police power. Citv of Colleae
Station   680 S.W.2d at 804; Citv of Austin v. Teacfue, 570
S.W.2d $89, 391     (Tex. 1978); Attorney   General Opinion
JM-294 (1984). The Texas Supreme' Court in Citv of Austin
v. Tacu       rejected an arbitrary     application   of the
"poliZe p%er" -- "eminent domain" distinction in favor of
a balancing test of whether the public need outweighs     the
private loss. 570 S.W.2d at 392-93.                             ?
     Subsection (c) of section 12 authorizes the district
to "require persons holding a permit for an injection well
to purchase water from the district."   The brief submitted




                           p. 3955
      Honorable Terra1 R. Smith - Page 11 ~-827)




,-,
      by the hazardous waste management facility to be located
      in the district    contends that this provision    requires
r     injection-well permit holders to purchase water regardless
      of whether they need it and regardless of the use to which
      it will be put. We disagree. A reasonable reading        of
      subsection (c) of section 12 is that the district may
      require injection-well   permit holders to purchase   water
      from the district only for uses related to injection-well
      operations.   Even with this narrow construction,  however,
      the bill raises a serious constitutional question.

           YOU suggest that requiring     injection-well   permit
      holders who   are landowners to  purchase water   from  the
      district rather than to obtain water by pumping         the
      groundwaterl   from beneath their land works a taking
      without compensation in violation of article I, section
      17, of the Texas Constitution.  Whether subsection (c) of
      section 12 authorizes the district to effect a taking
      depends on the extent of the power it grants to the
      district,   on the    nature of   landowners'   rights   to
      groundwater   beneath their land, and on the        factual
      circumstances surrounding the district's exercise of its
      power.

           The Texas Supreme Court recently reaffirmed         that,
      under Texas law, landowners have l'absolute ownership"      of
      percolating groundwater   beneath their lands.        Citv of
      Sherman v. Public Utility Commission of Texas, 643 S.W.2d
      681, 686 (Tex. 1983); uv      of Comus    Christi v. Citv of
      E;Leasanton, 276 S.W.2d 798, 802 (Tex. 1955). A corollary
      to this 1°absolute ownership"   is the landowners ' right to
      capture the groundwater beneath their lands.         Id.   The
      right of landowners to groundwater beneath the:ir land is
      an incident to their ownership of the land -- a part of
      the land.    Because groundwater    is considered  to be the
      property of the overlying landowner,
                                   ..        .under the
                                                      _- common-law
      rule, the landowner may withdraw       it regardless   of the
      effect of     the  withdrawal    on   other   wells or     the



            1. Throughout this opinion, the term lqgroundwaterlV
      refers to percolating   subsurface water as opposed to an
      underground stream. The two categories of groundwater are
-     subject to different   legal standards. See Hutchins, The
      Texas Law of Water iaht               (1961); see also Tex.
      Water Code 552.001 ~Vnd~;g:%~"waterV1      does not include
      subterranean streams).




                                  p. 3956
Honorable Terra1 R. Smith - Page 12    (JM-827)




           . . of the use to which it is put. m
reasonableness                                      Citv of
Cornus Christ1 v. Citv of Pleasanton I 276 S.W.2d at 801
(no common-law   cause of action    for waste):   See also
                       ent  Comnanv    V.  Smith-Southwest      ,-Y
udustries.    Inc.   576 S.W.2d 21, 29-30     (Tex.   1978)
(recognizing a cahse of action for subsidence only when
caused by negligent drilling or production of water well).

      Although there are no Texas cases directly on point
for the issue at hand, the courts' treatment         of the
government's termination or limitation of similar     rights
is instructive.   In u re Adiudrcation of the Water Riahts
of the Unner Guadalune    SegRRnt of the Guamune       River
w,      642 S.W.2d 438 (Tex. 1982), the Texas Supreme Court
held that the state of Texas may constitutionally      limit
riparian claimants to the quantity      of water    actually
beneficially used during a test period      established   by
statute.   In specific,  the court held that the termina-
tion, after notice and upon reasonable terms, of riparian
owners I rights to use non-flood waters after the riparian
owner failed to use the right for a fixed number of years
is not a taking of property.    642 S.W.2d at 444-45.    The
right of riparian owners   is one of use only because    the
riparian does not own the water that flows past his land.
642 S.W.2d at 644; see Wotl v. Bovd, 286 S.W. 458, 468
(Tex. 1926). The court acknowledged that riparian     rights
are vested rights.   642 S.W.2d at 645. Nevertheless,    the
court reasoned that, because riparian     rights are only
usufructuary, there is no right to the non-use of water.
642 S.W.Zd at 445.       Consequently,  termination   of   a
purported "right of non-use" is not a taking.      See also
Texas Water Riahts Commission v. Wriaht,    464 S.W.2d   642
 (Tex. 1971) (reaching similar conclusion   with regard to
appropriated water rights).

      Unlike the riparian landowner's    right to non-flood
waters, however, a landowner's wabsolute ownership"     right
to groundwater   may not be characterized     so easily as
mere1 y "UsufNctuary."     See Citv of Sherman V.     Public
Utility Commission   of Texax    su13ra. Section  52.002 of
the code confirms      landown&'    private   ownership    of
groundwater:

          Th ownershin and riahts of the owner of
       the l&d    and his lessees and assians    in
                                                                ?
       underaround water are hereby recoanized, and
       nothing in this code shall be construed   as
       depriving or divesting   the owner or his
       lessees and assigns of the ownership      or




                           p. 3957
    Honorable Terra1 R. Smith - Page 13      m-827)




           rights, subject to the rules promulgated   by
           a district under this chapter.      (Emphasis
r          added.)

    Subsection (a) of section 52.157 grants districts      the
    power of eminent domain but provides, in subsection (b):

           The power of eminent domain authorized    in
           this section may not be used for         the
           condemnation of land for the purpose      of
           acquiring rights to underground water or of
           water or water rights.

    These provisions   do not directly    limit the district
    because general laws governing article XVI, section 59,
    districts control such districts   only when the general
    laws are not inconsistent with the special acts creating
    the districts.   &i&la0   Countv WCID No. 1        Hidala
    County, 134 S.W.2d at 467. These Water Code Vprovisionz
    do, however, indicate that a statute could not be enacted
    in Texas that has the direct effect of appropriating
    groundwater without an eminent domain provision to prevent
    a taking of private waters without just compensation   and
C   due process of law. As indicated, however, under certain
    circumstances, property rights may be limited by govern-
    ment action without compensation   as an exercise of the
    state's police power.

           The law with regard to the state's regulation of oil
    and gas provides      a helpful    analogy for      groundwater
    regulation because the common-law        property   rights are
    similar. Texas recognizes landowners'        ownership of oil
    and gas beneath their land.         Brm         Hun&l     Oil   &
         . *
                 0. I 83  S.W.2d  935,   9ZO   (Gex.   193:).     The
    common-law rule recognized an unlimited right to capture
    such oil and gas. Ig, In Brown v. Humble Oil & Refining
    Co.,   83 S.W.2d  at 943-44, the Texas Supreme Court held
    that state regulation    of oil and gas production is not
    unconstitutional merely because it operates as a restraint
    on private property rights.     Regulation of production       to
    prevent waste is within the state's police power and is
    valid provided it is not exercised in an unreasonable          or
    arbitrary manner.       Id.    For   similar    reasons,      the
    district's reasonable regulation of groundwater production
    would probably be upheld.       See Casebier      and Starley,
    Proration of Ground Water in PROCEEDINGS OF WATER LAW
    CONFERENCES 1956, at 167-68 (1956).




                                 p. 3958
Honorable Terra1 R. Smith - Page 14   (JM-827)




     Subsection (c) of section 12 apparently     gives the
district the discretion to require that injection well
permit holders purchase their water from the district.   No    --Y
other groundwater districts   have a provision like this.
Several districts,   however, charge  for their regulatory
actions on a water usage basis.      In Parker v. El Paso
County Water   I nrovement District No. 1    297 S.W. 737
742-43 (Tex. 19i7)    the Texas Supreme  Churt addressed  A
riparian 1andowner:s claim that an article XVI, section
59, district lacked the legal authority to charge riparian
owners for the use of water from the Rio Grande River.
The district in question excavated ditches for irrigation
and drainage within   its boundaries  and assessed  charges
for the use of the reclamation       service and for the
construction and maintenance    of its irrigation   system.
The district's   charges were apportioned in part on the
basis of water use. The court determined that this did
not constitute a taking because the district did not claim
any right to take the riparian owner's proportionate share
of riparian water. 297 S.W. at 742-43.

     In contrast, subsection   (c) of section   12 does not
merely assess a charge on the use of water to defray the
district's expenses.  Subsection (c) purports to authorize
the district  to require certain     injection-well   permit
holders  to purchase water from the district         without
specifying that the cost of the water will relate to the
district's expenses of operation.     Nonetheless,   without
knowing how the district     is going to implement      such
authority -- for example, how it will determine the charge
for such water -- this decision cannot determine the con-
stitutionality of this provision.

     Article XVI, section 59(a), of the Texas Constitution
directs the legislature    to pass laws to conserve      the
state's natural resources.   Brown v. u    e Oil and Refin-
ina Co,, 83 S.W.2d at 941. As indicated, whether        such
laws constitute  a taking involves a reasonableness       or
balancing test dependent upon the facts in each particular
case. Citv of Colleae Station, 680 S.W.Zd at 804: Citv of
Au tin v. Teaoue, 570 S.W.2d at 393. Accordingly, if the
diitrict's  requirement  that an injection-well       permit
holder purchase water from the district    in a particular
case bears a reasonable  relationship to the conservation
of groundwater, such as to prevent its waste or pollution,
and if the benefit of those requirements     to the public
outweighs the loss to the landowner, an unconstitutional
taking would    not   necessarily   occur.    Whether    the
district's  requirements   that an injection-well     permit
                                                               ?




                           p. 3959
Honorable Terra1 R. Smith - Page 15   (JM-827)




holder purchase water from the district may thus be
constitutionally prohibited depends on factual determina-
tions beyond the scope of the opinion process.

                       SUMMARY

          The bill creating the Anderson     County
       Underground Water Conservation District, S&R
       Acts 1987, 70th Leg., ch. 992, at 6764, does
       not violate,   on its face, article      III,
       section 56, of the Texas Constitution as an
       unauthorized local or special law.   General
       laws, such as chapter 52 of the Texas Water
       Code, that govern article XVI, section 59,
       districts apply to such districts only when
       the general laws are not inconsistent    with
       the special acts creating the districts.

          The Solid Waste Disposal Act, article
       4477-7, V.T.C.S., and the bill are not on
       their face in conflict. Whether the actual
       application of particular rules and regula-
       tions enacted by the district may conflict
       with the    Water   Commission's   exclusive
       permitting authority under section 4(e)(6)
       of article 4477-7 depends on the specific
       rules and regulations   and the facts sur-
       rounding their application.

          Different legal classifications are not
       prohibited by the equal protection   reguire-
       ment of article I, section 3, of the Texas
       Constitution   if there exists a rational
       basis for the classification.    Whether  the
       area covered by the Anderson County Under-
       ground Water Conservation  District is such
       that it justifies different    treatment  and
       whether the persons particularly affected by
       the bill creating the district have special
       characteristics as groundwater    users that
       justify different    treatment    depend   on
       complex questions of fact.       The opinion
       process was not designed to adjudicate   fact
       questions.

          The legislature'may delegate the task of
       making rules and of making determinations of
       fact to which existing law and legislative
       policy are to     apply so    long as    the




                         p. 3960
Honorable Terra1 R. Smith - Page 16    (JM-827)




      legislature provides standards to guide the
      exercise of delegated   powers  and duties.
      The bill creating the district      contains
      sufficient standards for its delegation   of
      power.

          Reasonable  governmental   regulation    of
       landowners' rights to groundwater is within
       the state#s police power and would not, on
       its face, constitute  a taking without   com-
       pensation in violation of article I, section
       17, of the Texas Constitution.     Subsection
       (c) of section 12 of the bill creating    the
       Anderson County Underground Water Conserva-
       tion District authorizes    the district    to
       deprive landowners who are injection-well
       permit holders of the use of their ground-
       water for injection-wells.   If the reguire-
       ments to purchase water    from the district
       bore a reasonable  relationship to the con-
       servation of groundwater,   such as the pre-
       vention of waste or pollution, an unconsti-
       tutional  taking   would    not   necessarily
       result. Determination of a taking    involves
       a balancing test dependent   on the facts in
       each particular case.




                                -J I M   MATTOX
                                 Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General




                          p. 3961
