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                          The Attorney                 General of Texas
                                                June    7,    1978

JOHN L. HILL
Attorney General


                       Mr. Harvey Davis                                 Opinion No. H- 1177
                       Executive Director
                       Texas Department   of Water Resources            Re: Jurisdiction      of Texas Water
                       1700 N. Congress Avenue                          Commission     regarding     approval
                       Austin, Texas                                    of plans for the construction       of
                                                                        drainage   facilities      in Harris
                                                                        County Flood Control District.

                       Dear Mr. Davis:

                              You ask whether plans for a drainage project which have been approved
                       by the Harris County Flood Control District must also be approved by the
                       Texas Water Commission pursuant to section 16.238 of the Water Code. The
                       drainage projects you inquire about are to be constructed    by entities other
                       than the Harris County Flood Control District.

                             Section   16.238 of the Water Code provides    in part:

                                      (a) No person, corporation,       or levee improvement
                                   district may construct,    attempt   to construct,   cause to
                                   be constructed,    maintain,    or cause to be maintained
                                   any levee or other such improvement        on, along, or near
                                   any stream of this state that is subject           to floods,
                                   freshets,  or overflows so as to control,        regulate,  or
                                   otherwise change the floodwater of the stream without
                                   first obtaining   approval     of the plans by the com-
                                   mission.

                       In Attorney     General  Opinion H-328 (1974) we considered           whether   this
                       provision applied to the construction of lateral drainage facilities.    We stated
                       as follows:

                                   Only those levees or improvements      need be approved
                                   which are constructed, or maintained on, along or near
                                   one of the described      streams   ‘so as to control,
                                   regulate, or otherwise  change the flood water of the




                                                       P.    4754
Mr. Harvey Davis      -   Page 2      (H-1177)



             stream.’      Whether . . . this requirement   extends    to the
             construction     or improvement     of . . . lateral    drainage
             facilities   depends on the facts in a given situation,       and
             resolution of this question should at least initially be made
             by the [Water Development]          Board subject    to judicial
             review. Security State Bank of San Juan v. State, 169 S.W.2d
             554 (Tex. Civ. App. - Austin 1943, err. ref’d., w.o.m.)

Attorney    General Opinion H-328 (1974). We concluded that the plans for lateral
drainage    facilities should be submitted to the Board for its determination of the
relevant   fact questions.

       In Attorney   General Opinion H-328 we also determined     that the Harris
County Flood Control District was subject to the requirements   of section 16.238.
The Legislature    subsequently enacted the following amendment     to the statute
creating the Harris County Flood Control District:

                3A. Projects      proposed to be constructed     by the Harris
             County     Flood Control      District, other   than levees    and
             structures    related to levees, shall be under the control of
             the Commissioners       Court acting as the governing board for
             the District.     The findings of the Commissioners    Court as to
             the plan of work, the necessity, the location, and the type of
             improvement       of a project covered by this section shall he
             final and not subject to review.

Acts 1975, 64th Leg., ch. 593, at     1877. We considered this amendment    in Attorney
General Opinion H-915 (1976) and      determined  that the Harris County Flood Control
District was no longer required      to submit its plans for projects other than levees
and structures relating to levees    to the Water Development    Board.

       We believe the language of section 3A is clear. It applies only to projects “to
be constructed     by the Harris County Flood Control District” and not to projects to
be constructed      in Harris County by other persons or corporations.            We do not
believe the District’s approval of another entity’s drainage project converts it into
a project “to be constructed       by the . . . District” or otherwise exempts it from the
requirements     of section 16.238. The plans for such a project must also be submitted
to the Department        of Water Resources for an initial determination      as to whether
the construction     will “control, regulate, or otherwise change the floodwater      of the
stream” and thus be subject to section 16.238.

                                       SUMMARY

             A drainage   project   to be constructed by an entity other than
             the Harris   County    Flood Control District is not exempted




                                            P.   4755
Mr. Harvey Davis   -   Page3      (H-1177)



            from section 16.238 of the Water Code merely            because    the
            plans have been approved by the District.

                                             Very truly yours,




                                             Attorney     General   of Texas

APPROVED:




DAVID M. KENDALL,      First Assistant




C. ROBERT HEATH, Chairman
Opinion Committee

jsn




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