      ^.
            .




                                  The Attorney                   General of Texas
                                                        December    29,    1961
MARK WHITE
Attorney General


                               Honorable  Mike Driscoll~                                Opinion     No.    MW-419
Supreme    Court Building
P. 0. Box 12546
                               Harris County Attorney
Austin, TX. 76711              1001 Preston,   Suite 634                                Re:    Authority      of a county to
5121475.2501                   Houston,  Texas     77002                                prohibit      discharge     of  sewage
Telex 9101874.1367                                                                      plant    effluent      into   a county
Te,ecc,pIer 51214750266
                                                                                        roadside     ditch

1607 Main St.. Suite 1400      Dear Mr. Driscoll:
Dallas, TX. 75201
21417428944                           You have     requested     the    opinion    of    this     office    on   the   following
                               question:
4624 Alberta Ave., SUite 160
El Paso, TX. 76305                          Does Harris County have the authority   under law to
913l5333464                                 prohibit   the discharge   of sewage plant   effluent
                                            into a county roadside   ditch?
1220 Dallas Ave.. Suite 202
Houston. TX. 77002
                                       You inform us that a privately              owned sewage plant is discharging
713165c-m66                    sewage       effluent       into    a   county      roadside       ditch      without     county
                               permission.          The Texas Constitution            gives    the county       commissioners
                               courts     “such powers and jurisdiction               over all     county business,       as is
606 Broadway, Suite 312
                               conferred       by this Constitution        and the laws of the State,             or as may be
Lubbock. TX. 76401
8081747.5236
                               hereafter       prescribed.”       Art. V, 518.         The counties       have no powers or
                               duties      other      than   those    expressly       or impliedly        conferred     by the
                               constitution        and statutes.       Canales     v.   Laughlin,     214   S.W.Zd   451   (Tex.
4(309 N. Tenth. Suite B        1948) ; Attorney           General    Opinion     H-374      (1974).       Unlike    home rule
MeAllen. TX. 76601
                               cities,      counties     have no general        police     power.     Comrtissioners’     Court
51218824547
                               of Harris County v. Kaiser,             23 S.W. 2d 840 (Tex. Civ. App. - Galveston
                               1929, writ        ref’d);     Harper v. Lindsay,           454 F. Supp. 597 (S.D.            Tex.
200 Main Plaza, Suite 400      1978).       The proper        approach     is   to determine         whether     the statutes
San Anlon~o. TX. 76205         expressiy       or by necessary       implication       provide    the requisite      authority
5121225-4191
                               to the commissioners           court.    Canales v. Laughlin,          s.

An Equal OppOrtunityI                 Article     2351 provides    the general   statutory   grant of power to the
Aftirmative Action Employer    commissioners         courts   and    specific    powers    are    found   elsewhere.
                               V.T.C.S.      art.     2351.   Neither    article   2351 nor     any other     statute
                               specifically        authorizes   the county to promulgate       any sort of blanket
                               prohibition       of all discharges     of treated    sewage effluent    Into county
                               ditches.

                                      The Texas     Water Code sets out the authority  for the regulation of
                               the   discharge      of sewage plant  effluent  and provides   that the Texas




                                                                   p.     1427
                                                                                                                 .   .
Honorable      Mike Driscoll         - Page 2           (MW-419)




Department       of   Water    Resources    is the administrative       agency  with
regulatory      authority    over water quality     In the state.       Water Code,
126.001 et. seq.         The Texas Water Coormission is the agency that issues
permits    for the discharge        of waste into or adjacent       to water in the
state.      Id. 26.027.       It has been suggested      that various     Water Code
provisionsight         authorize    a county to regulate    discharges   into county
roadside     ditches.

       The Water Code provides         that a county commissioners          court may use
the same procedures         as the Texas Water Commission in issuing                 permits
to private      sewage facilities       so as to abate or prevent            pollution     or
injury    to public    health.     Id.  $26.032.     “Private    sewage   facilities”      is
defined     by section     26.031x       include    a number of specific           types of
sewage facilities       “and all other facilities,          systems,    and methods used
for the disposal       of sewage other than disposal            systems operated       under
a permit       issued    by the      [Water]     [C]ommlssion.”        Since     the Water
Commission      has issued      a discharge       permit   for    the sewage plant         in
question,     the county may not require          a permit under the Water Code.

        The Water Code authorizes           a local      government      which     owns or
operates     a disposal      system to enact       and enforce      rules,    ordinances,
orders,    or resolutions       to control     and regulate      the type,     character,
and quality     of waste which may be discharged             to the system so as to
protect    the maintenance       personnel   and to prevent       unreasonable      adverse
effects    on the disposal       system.    Id. 26.176(a).        “Disposal    system” is
defined    as any system for disposiKof             waste,   including      sewer systems
and treatment      facilities.        Id.  §26.001(16).       This provision         of the
Water Code addresses           pretreatment      of waste     that    enters     treatment
systems and does not cover discharges               of treated      sewage effluent       to
county roadside      ditches.

       Harris      County Flood Control              District      is coterminous            with Harris
County and is governed by the Harris County Commissioners                                  Court.        Acts
1937. 45th Leg.,           ch. 360, Il.            Among     the   enumerated        purposes        of   the
creation      of the district          is “the control,             storing,      preservation.           and
distribution        of the storm and flood waters”                    Id.      The district        has the
power    “ to   regulate      the   flow    of     surface     and     flood    waters.”         Id. §§I,
2(e).        The     Harris      County       Flood       Control        District        is     expressly
authorized        to pass resolutions               establishing          building      setback        lines
along any waterway vithin               the boundaries           of the district.              Acts 1963,
58th Leg.,         ch.    118 at 318.             We believe          the absence           of    specific
authority       to prohibit       discharges         into drainage         ditches     lndica.tes        that
the legislature          did not intend the district                   to have that power.                The
county commissioners            court,     through its flood              control     authority,         does
not have express             or implied        authority        to prohibit          discharges          into
drainage       ditches.        Likewise,        if     the subject          property       is within         a
drainage        district,        there       is       no    statutory          authority         for       the
commissioners          court    to prohibit            sewage effluent           discharges         Into     a
district’s       ditches.      -See Tex. Water Code 556.001 et. seq. (1972).




                                                   p.   1428
Honorable     Mike Driscoll       - Page 3         (MW-419)




       The      county       has     the    authority       to     require      abatement      of
health-related          nuisances.       V.T.C.S.     art.     4477-l.      53.     One of    the
statutorily        recognized       nuisances     is “[a]ny       collection      of water     in
which mosquitoes          are breeding      within    the limits       of any city,     town or
village.”         1n your        opinion     request    you      state     that    the  pooling
condition      In this case breeds mosquitoes              and is a health        hazard.     The
question     of whether the discharge            of effluent       creates    a nuisance    is a
question     of fact.         The procedure      to be followed          in the abatement of
health-related          nuisances     by county health         authorities      Is set out in
the statute.         -Id.   53.

       In addition         to exercising     applicable      statutory       authority,        Harris
County has the right             to prevent    interference        with its easement.              The
easement held by Harris County necessarily                     carries      with it the right
to use and control           as much of the easement as may be reasonably                      needed
for the granted           purposes.     Hill Farm, Inc. v. Hill County,                  436 S.W.Zd
320 (Tex.       1969).       The fact    that the use contemplated              at the time the
easement was granted was use as a public                     road in no way precludes                 a
different       use as an avenue of drainage              at the present            time.     Id. at
323.      The landowner         has the right       to use the land subject                   rthe
easement in a manner that does not affect                     or impair the enjoyment                of
the public       easement.        Id. at 323; Hale County v. Davis,                572 S.W.Zd 63,
65 (Tex.       Civ.     App. -Amarillo        1978, writ       ref’d     n.r.e.);        Pittman v.
City of Amarillo,           598 S.W.Zd 941, 944 (Tex. Civ. App. - Amarillo                      1980,
writ ref’d       n.r.e.).       See also Jefferson       County Drainage District               No. 6
v. Southwell,          32 S.W.Zd 895 (Tex.          Civ.    App. - Beaumont 1930, writ
ref’d)     (district       was not entitled     to injunctive        relief       because    the dam
constructed        by the landowner          across     the drainage          ditch      in no way
interfered       with the complete        and adequate drainage           of water).         Whether
or not the landowner’s              use of the ditch       for sewage effluent              actually
constitutes         an encroachment         on the county’s           easement         is again       a
question      of fact.

       The issuance        of a permit by the Texas Water Commission does not
preclude      Harris      County    from pursuing      the aforementioned              remedies.
Section      26.133     of the Water Code provides             that    “[nlothing        in this
chapter     affects     the right     of any private     corporation       or individual        to
pursue     any common-law remedy to abate               a condition         of pollution        or
other    nuisance       or to recover       damages.”      In accordance         with section
26.133,     a standard       provision    of water commission          permits      states    that
“[t]he    issuance      of this permit does not convey any property                    rights   in
either     real     or personal      property.    or any exclusive           privileges,       nor
does it authorize           any injury     to private    property       or any invasion         of
personal       rights     nor any infringement         of    State,      or local        laws or
regulations;        nor does it obviate        the necessity     of obtaining         Federal or
local    assent      required    by law for the permitted           discharge.”         The fact
that a discharger          has been granted a discharge            permit will       not defeat
an action        for damages for        the resulting       pollution.        Atlas      Chemical




                                              p.   1429
Honorable     Mike Driscoll    - Page 4         (MW-419)




Industries,      Inc.  v.     Anderson,   514 S.W.Zd            309 (Tex.     Civ.    App.   -
Texarkana     1974). aff'd.     524 S.W.Zd 681 (Tex.           1975).

                                      SUMMARY

                    Harris County has no authority           to institute    a
              blanket    prohibition      of all   discharges     of sewage
              plant   effluent      into   county  ditches.      The county
              may prevent     Interference     with its easement through
              cO*O"       law     remedies      or   statutory      nuisance
              abatement proceedings.




                                                        Attorney   General   of   Texas

JOHN W. FAINTER, JR.
First Assistant Attorney         General

RICHARD E. GRAY III
Executive Assistant       Attorney    General

Prepared      by Susan Plettman
Assistant      Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison,       Chairman
Jon Bible
Tim Brown
Rick Gilpin
Jim Moellinger
Susan Plettman




                                           p.    1430
