                                                             R-508


                                OlWXCE       OF

                   THE ATTORNEY                 GENERAL
                               Auwrm,     TEXAS
PRICE  DANIEL
*~TcmNEY GENERAL                July 28, 1947

        Hon. E..V. Spence, Chairman
        Board of Water Engineers
        302 West 15th Street                 ._,
        Austin, Texas           Opinion No. V-319
                                 Re:    Sale of stored water
                                        by Lower Colorado Rl-
                                        ver Authority for irri-
                                        gation and manufacturing
                                        use outside the Authori-
                                        ty's statutory bounda-
                                        ries
        Dear Sir:
                 The question and facts upon which our opinion
        Is requested are stated In your letter of May 23, 1947,
        as follows:
                    "Your opinion is requested with
               respect to the appllcatlonof 3. T.
               Suggs, Box 3, Lake Jackson, Brazoria
               County, Texas, now pending before the
               Board, to appropriateand divert
               40,000 acre-feet per annum of the unap-
               propriated waters of the State of
               Texas, the same to be diverted from
               the,,ColoradoRiver and the San Bernard
               River for the purpose of utilizing
               35,000 acre-feet for Irrigationand
               5,000 acre-feet for manufacturing. The
               annual diversion from the sources of
               supply to be on the basis~of 10,000
               acre-feet from the Colorado River of
               which 2,000 is .tobe for manufacturing,
               and 30,000 acre-feet from the San Bernard
               River of whhich3,000 should be for msnu-
               facturlng.
                    ". . .

                    "The question arises - hasthe Lower
               Colorado River Authority the right to sell
               water to Mr. J. T. Suggs for irrigation and
                       -.
      Hon. E. V. Spence - page 2 :   v&g
102

          manufacturingpurposes, aa to use,
          distribute and sell the same outside
          the boundaries of the District, and
          in this case the lands being in the
          Brazos Valley."
                We have examined the applicationof J. T.
      Suggs which states that any permit granted by the
      Board to divert water from the Colorado River will
      be contingentupon the ability of the applicant to
      purchase stored water from the Lower Colorado River
      Authority. The only waters, therefore, subjectto
      this opinion, are those of the Colorado stored by
      Lcm. The question restated is whether or not LCRA
      may sell legally stored water to a purchaser who
      will deliver it for ~irrigatlonand manufacturing
      use beyond the boundaries of the District. In addl-
      tion, and in order to ,fullyanswer your question,
      it till be necessary to decide whether a purchaser
      who has bought stored water from LCRA may, by follow-
      ing the procedure outlined in Article 7590, V. C. S.,
      remove the water so purchased beyond the watershed.
                The various conservationand:reclamationdis-
      tricts, Including LCRA, have been created by special
      acts under Article XVI, Sec. 59 of the Constitution,
      and have only those powers expresslygranted or reason-
      ably implied from the acts upon which their creation
      depends. The solution to your problem must be deter-
      mined by ascertaininglegislative Intent as expressed
      in these acts.
                LCRA.was created by Acts 1934, 43rd Legisla-
      ture, 4th C. S   Ch. 7, as amended. Its boundaries
      are coincident.kth the boundaries of Blanco, Burnet,
      Llano, Travis, Bastrop, Fayette, Colorado,Wharton,
      San Saba, and Matagorda Counties. The powers given
      LCRA are set out in Section 2 of the Act creating ft
      and in so far as these powers touch on the subject
      under lnvestlgatlonit appears that LCRA Is authorized
      to control, store, and preserve within the boundaries
      of the district the waters of the Colorado and its
      -i6utaries      any useful purpose and use distribute
      a& sell the same wlth5.nthe bounckes of ihe district;
      develop and generate water power and electric energy
      within the boundaries of the district and distribute
      and sell water power and electric energy within or
      without said boundaries;aid In foresti
      watershed area of the Colorado and aid in prevention
                                                    103
Hon. E. V. Spence - Page 3 - V-319


of soil erosion and floods within said watershed area;
acquire by purchase or otherwise any property, real,
personal or mixed, within or without the-boukdarlesof
the district necessary or convenient to the exercise of
the nowers conferredunon it. Rezardless of nermits -
held; the district is not permitted to use fo; lrrlga-
tion purposes any water unless expressly authorizedby
subsequentpermit granted by the Board of Water Rngi-
neers; provided, however. that nothing shall prevent
the district from selling for Irrigation purposes wlth-
In the boundaries of the district any water impound
by it under authority of law. Its use of water for the
purpose of generatinghydro-electricpower Is subordi-
nated~and madi?inferior to the rights of any citizen of
Texas. or bodies nolltic. to build dams and Impound
flood-waterswithin the watershed of the Colorado and
its tributariesfor domestic purposes and for the pur-
poses of irrigationand any permit held by It is sub-
ject to the limitationsindicated.
     We find In the Act creatina LCRA an exnress di-
rective to use, distribute and zell within she bounda-
ries of the district the waters which are controlled,
stored and preserved by It. It is also provided that
regardless of the permits which it holds the district
Is-requiredto obtain a subsequent permit from your
Board In order to use any but impounded waters for lrri-
gation, It being expressly provided that nothing shall
prevent the sale of water mounded under authority of
law for irrigationwithin the boundaries of said dls-
trlct. LCRA may distribute and sell water power and
electric energy wlthln or without its boundaries, and
Is to aid in foresting and In the prevention of soil
erosion and floods within the watershed area. It may
acquire within or without its boundaries property nec-
essary to the exercise of its powers. The Act indicates
to us a carefully consideredattempt by the Legislature
to localize certain functions and to generalize others.
    ~Turningnow to the other Conservationand Recla-
mation Acts, all of which are compiled under Special
Acts beginning at page 536, Vol. 21, V. C. S., we brief-
ly review the provisions of these Acts in so far as
they touch on the subject under Investigation.
     Brazos River Conservationand ReclamationDistrict.
Its boundaries are coincidentwlth the watershed of the
Brazos. It is authorized to control and employ the
flood, storm and unanpropriatedflow waters of said
~.p~4 Hon. E. V. Spence - Page 4 - V-319


      district in order to provide for the preservationof
      the equitable rights of the people of the watershed
      area; the conseTPationof water essential for do-
      mestic uses of the watershed; for the itigation of'
      lands in the watershed area; the equitable distribu-
      tion of waters to the regional potential requirements
      for all uses, and to make available waters in the de-
      velopment of commercialand Industrial enterprisesin
      all sect,Tonsof the watershed.
           Central Colorado River Authority. It is composed
      of the.Countyof Coleman. It is authorized to use.
      distributea,ndsell its waters within the boundaries
      of the district. Water power ana electric energy may
      be sold witNn or without such boundaries. It Is di-
      rected to aid in prevention of soil erosion and floods
      nithin the watershed area. It may acqpire property
      necessary to the exercise of its powers, whether such
      property be within or without such district.
           &uXlalupe-Blanc0River Authority. Its bounda-
       riesare COinOident~wlththe boundaries of Hays; Comal,
      Quadalupe.Caldwell, Gonzales. Dewitt. Victoria. Ken-
      dall, R&igio and Calhoun Cou&es.     It is authhrized-to
      use, distributeand sell Its waters within the bountia-
      rles of the district;water power and electric energy
      to be distributedand sold within or without such bounda-
      ries. It is to aid in foresting and in the.prevention
      of soil erosion and floods within the watershed area.
      Property necessary to carry out its purposes may be ac-
      quired within or wIthout the district.
            Lower Neches Valley Authority. Its boundaries
       consist of Jefferson.Iiardin.Tiler and nortions of
       Liberty and Chambers Counties. -It is ac‘cordedpower
       of control and employment of the waters of the Neehes
       in order to preserve the equitable rights of the
       people of the watershed area: for irrigationof land
       in said district and land without said district but
       within said watershed; for the equitabledistribu-
       tion of waters to the regional potential require-
       ments for all uses, and to make availablewaters in
       the developmentof commercialand lndustrial~enter-
      'prises in all sections of the,watershed of the dis-
       trict.
            Lower Conch0 River Water and Soil Conservation
       Authority    Its boundaries consist of Conch0 County.
       ft Is au&orized to sell water power and electric ener-
    Hon, E. V. Spence - Page 5 - V-319


    gy within and without the district3 to provlde,forthe.
    Irrigation of lands In the district and for the equita-
    ble distributionof waters of the Conch0 and Colorado
    Rivers to the regional potential requirementsfor all
    uses, and to make available waters in the development
    of commercialand industrialenterprisesin all sec-
    tions of the watershed area of the district.
         Nueces River Conservationand ReclamationDistrict.
    Its boundaries describe by metes and bounds the water-
    shed area. It has power of,control and employmentof
    the waters of the Nueces for domestic uses of the people
    of the watershed; for irrigationof land In the water-
    shed; for the equitable distributionof waters to the
    regional requirementsfor all uses, and In order to
    make available waters in the developmentof commercial
    and tidustrialenterpriseswithin the watershed.
         PanhandleWater ConservationAuthority Its bounda-
    ries consist of certain named counties alo& the Red,
    Canadian and Brazes Rivers. The District has the au-
    thority to distribute and sell water power and electric
    energy within or without its boundaries; to provide-for
,   the Irrigationof lands In the watershed areas; pro- ..
    vided, that such district may not use water for lrriga-
    tion unless It obtains a permit from the Board.of Water
    Engineers, It being expressly provided, however, that
    nothing is to prevent the district from selling for
    Irrigationwithin its boundaries any water impounded
    by it under authority of law, and to make available
    waters In the developmentof.commercialand Industrial
    enterprises in the watershed area of the district.
         Sablne-NechesConservationDistrict. Its bounda-
    ries originally consisted of certain named counties,
    but by amendment these boundaries were extended to
    Include the watershed areas of the Sabine and Neches
    Rivers. It has power of control and employmentof the
    waters of these rivers for the preservationof the
    equitable rights of the people of the watershed; for .
    irrigation of all lands within said watershed; develop-
    ment of commercialand~~industrial enterprisestherein,
    and to conserve such waters for the domestic uses of
    the people of the district,
        Sulphur River Conservationand ReclamationDis-
    trict. It boundaries consist of the watershed area
    me    Sulpkr River, It may control and employ the
    Hon. E. V. Spence - Page 6 -V-319 '.
P f:36

     flood, storm and unappropriatedflow waters to pre-
     serve the equitablerights of the people of the water-
     shed; to conserve water for essential domestic uses
     within the watershed; for the itigation of lands
     within the watershed; for the equitable distribution
     of Its waters to the regional potential requirements
     for all uses, and to make available such water for
     commercialand industrial enterprisesin the water-
     shed.
          Upper Red River Flood Control and Irrigation,
     District. It Is composed of 3riscoe, Hall and Chll-
     dress Counties. It has power to control, store and
     preserve within the boundaries of the district the'
     waters of Prairie Dog Fork and Red River for the re-
     clamation and irrigation of the lands of the district
     and to use, distribute,and sell the same within such
     boundaries.
          Upper-GuadalupeRiver Authority. It is composed
     of the County of Kerr. It is authorized to use, dis-
     tribute and sell Its waters within the boundaries of
     the district for any useful purpose, and to acquire
     such property as may be necessary to carry out its
     purposes wIthin or tithout the district.
          We find in these acts a more or less uniform
     insistenceby the Legislature to confine within the
     district'sboundaries the sale generally by it of
     stored waters and specificallysale by it of stored
     waters for manufacturingand irrigationuse; per-
     missionto sell and distribute electric energy and
     water power within or without such boundaries;a
     conservationpolicy regarding foresting,flood
     control and soil erosion covering the watershed
     area; the power to acquire property necessary to
     carry out the powers of the district within or with-
     out the boundariesof such district, and the dele-
     gation generally of a duty to preserve the waters
     for the watershed area In accordancewith regional
     potential requirements.
          In the following Instanceswe have found exceptions
     to the general policy discussed above:
          Guadalupe River Authority. Its boundaries consist
     of certain named surveys in Coma1 County. Its right to
Hon. E. V. Spence - Page’7 -V-p9


control, store, sell and dlstribute,waterIs acquired
by approprlatlonM.the,usual manner by ,petit from
your:,Board.andthe ,exerclse~ofall privileges obtained
under such permits is subjectto the provisions of
Chapter 1, Title 128, R. c. S., 1925, as amended, Since
water la permitted to be moved beyond the watershed by
Article 7590, R. C. S., 1925, which is a part of Chap-
ter 1, Title 128, it would appear:~,~that
                                        the district
may sell toma purchaser who In turn might apply to your
Board under said Article for a per&t to remove the
mater so purchased beyond the watershed and beyond the
district's boundaries.,.
       &ilf Water Supply Dlstrlct.,,Its boundaries con-
sist 5?7tXson, &arn       Be   San Patriclo aa Nueces
                               S
Counties. It is.spe%ioa%y       authorized
                                &thorizea to sell water
to towns, cities and other
                       other~politlcalsubdivisionsIn the
State,of Texas, to private corporationsand to indlvl-
Stat6
anals,
duals, rithin
         mtnl~l or without
                   titnout the
                           tne district.
                               a&strlct.
     San JaCinto Conservationand Be&nation District.
It is-boundedb the watershed of the S     J into
cept for'the Co&y of Harris, As orip&$        e&EGd
the Act creatj.ngthis'districtcontains the usualpro)
vlslons~indicated above. However, by amendment,Acts
1941, page 769, the district was ~authorlzedto enter into
any and all necessary and proper eontracts ~wlthother
agencies, districts and bodiespolitic and corporate and
others for the storage, conservation,utilization,trans-
Portation and sale of lmpounded,waters.andelectric
power to cities, towns, .industrialsites, persons, firms
and corporationswlth%n or Mthout the boundaries of the
district.
     Upper-ColoradoRiver Buthorlty ThIsdIstrict
Is comnosed of Coke and TomGreen C&nties.~ It is au-.
thorized "to sell and distribute,water without the
boundariesof the district to any municipality for do-
mestic, municipal and irrigation purposes, and to any
person, firm, or, corporationfor municipal purposes or
irrigation,together with the right to'~construct,fnmes,
lrrlgat.tion
           ditches, plpeltnes and storage reservoirs
without the district for such purposes.
     The fact that the Legislature has seen fit in
bertaln cases to confine sal,esfor manufacturdngand
irrigationuse,tithin flxed boundaries but has deviated
from this policy in other cases, together with an over-
all policy of localiiing certain functions while
                -.                                                             A
,/.-,A


                     Hon. E. w. Spence - Page 8 -.w-319’
         1108

                     generalizingothers, leads us to the conclusionthat
                     only where sales beyond the district are expressly au-
                     thorized were they intended to be permitted. It is our
                     opinion that under its present act LCRA has no autho-
                     rity to distribute or sell its stored water~for use
                     beyond MX boundaries.
                          In digesting the various conservationand recla-
                     mation Acts; we covered and consideredonly certain of
                     the expresslygranted powers and functionsaccorded
                     such districts. In most cases, these express powers
                     are preceded by a broad grant of authority to exercise,
                     all powers and functions conferredupon such districts
                     by general law and by the conservationamendment to the
                     Constltutlonand that the grant of express power is not
                     Intended to limit the general powers so conferred.
                     Sections 1 and 2 of the LCRA Act (supra) are the sec-
                     ‘tlonswhich confer upon it these general powers. In
                     addition, It is usually provided that the Act shall
                     be liberally construed. See Sec. 18, LCFtAAct (supra).
                     We have donsidered these sections~w%threference to
                     the situation under investigationbut have been unable
                     to find any purpose, function or power conferredupon
                     LCFU under the general law or by the conservation
                     amendment to the Constitution,whichwould authorize
                     It to sell stored waters beyond its boundaries in the
                     face of an express directive that it use, distribute
                     and sell such waters within such boundaries.
                          If the district Is not authorized to sell or dis-
                     tribute waters beyond its boundaries,then it necessari-
                     ly follows that the Legislature intended that these
                     waters be used only within such=boundaries. To permit
                     a purchaser from such a district to distributeand use
                     the stored waters purchased by him beyond district
                     boundarieswould nullify whatever purpose the Legisla-
                     ture had In mind In placing restrictionson sales by
                     the district of such waters. We have covered at
                     length the various conservationand reclamationdis-
                     trict acts because we believe that these,acts,with the
                     exceptions Indicated, show an overall purpose by the
                     Legislature to preserve for the benefit of the ln-
                     habitants of these districts the waters stored by such
                     districts and to permit a purchaser to remove such
                     waters beyond district boundarieswould circumvent
                     this purpose. It is. our opinion that a purchaser,of
                     stored waters under the present LCRA Actsmay not dis-
                     tribute and use such waters ,forIrrigationand manu-
                     facturing purposes beyond LCRA boundaries.
                                                          109
      Hon. R. V. Spence - Page 9 -V-319


            In our opinion, ArtlOle 7589, V. C. S., declar-
       lng it to be~unlawfulto remove water .beyondthe .,
       watershed, Article 7590, V. C.&, providing a method
       by which water may be removed upon applicationto your
       Board, and Article 7591, V. C. S., making It a mls-
       demeanor and providingpenalties for removing waters>
       without Proper authority,have no appllcation.tothe
       sltUatiOn presented. Msny of the districts discussed.
       above consist of named countiesso thatthe overall
       boundarymayor may not be coincidentwith the ~water-
       shed area. Whether the district boundaries lie within
       or without the watershed,:or,whetherthesesboundaries
       are coincidentwith the watershed, all of the special
       acts In question having been enacted subsequentto ~'
       Articles 7589, 7590 and 7591, have the effect of cre-
      boatingto the extent indicated in each act an exception
       to the general law stated in said Articles. See
       25 R~.C. L.,    929, 59 C. 'J.P. 936, Sec. 546, 39 T.J.
     . p. 150, Sec. ifi'
                     2, Harris Count Drainage District No.12
                                    3 35 s w (2) 118. Hunt
       =~*A~~sl,nCB~~(~~eAP~orn.       App:) i2~S; W. 12)
       ;&& and Fortinberryv:State (Corn.~pp.)--283S. W
          . The,effect-ofthis exception Is two-fold; (lj
       making it lawful to use waters beyond the watershed
       where the boundaries of the district extend beyond such---
       watershed,,and (2) except- from the.operationof Artl-
       cle 7590 the waters involved in the spe&lal,actsin
       question to the extent lndlcated.ineach of such acts.
           We find no decision in Texas on this question.
      The only related cases we have found are not in point,
      since in each a statute easted permitting removal of
      waters beyond district boundaries. See San Jacinto
      River Conservationand ReclamationDistrict v. Sellers
                 Ct. 1945) 184 S. W. (2) 920; Cameron County
               rovement District No. 1 v. Danlels (T.C.A.
                S. W. 1066.
           Outside Texas the few cases found are not in
      harmony. The rule laid down in Jenison v. Redf2el.d
      (Cal. sup. ct. 1906) 87 P. 26, involving an irriga-
      tion district, confines water strictly~to district
      boundaries,holding that the waters of such districts
      are held in trust for their Inhabitantsand may not be
      used beyond district.bouudariesin the face of a sta-
      tute restrictinguse within such boundaries. On the
      other hand, the following cases, while announcing the
      rule laid down in the Jenison case, place an exception
I     upon this rule, holding that if the rights of the ln-
      habitants of the district are not injured and if there




t-
110   Hon. E. V. Spence - Page 10 - V-319


      5s a surplus of water, .theClistrictmay furnish water
      for use beyond Its boundaries. See,Yaden v,'Gem Irrl~
      gation District (Idaho Sup. Ct. 1 2 ) 216 P. 2 0;
      Koch v. Colvln (Mont. Sup. Ct.'19$7
                                        0 10 P. ,(2 7 334, and
      Maclay,v. Mlssoula IrrigationDistrict 7Mont. Sup. Ct..-
      1931) 3 P. (2) 286. In our opinion, the principlesan-
      nounced In these cases with regard to Irrigation'dls-
      tricts do not necessarily apply to conservationand
      reclamationdistricts such as LCRA due to the broader
      purpose for which the conservationand reclamation
      district has been created ,andthe more extensivearea
      over which this ,purpoae'
                              extends. See Brazes River
      Conservationand ReclamationDistrict v. McGraw (Tex.
      SUP. ct. 1936) 91 S. w. (.2)670.




                Under Its present Act (Ch, 7, Acts
                43rd Legis. 4.thC.S.1934, as amended),
                waters stored by the Lower Colorado
                River AuthorWy may not be distributed
                or sold by,it for irrigation or manu-
                facturing use beyond the Authority's,
                boundaries. '.Thisrestrictioh~alsore-
                lates to purchasers from the Autho-rity;
                                   Yours very truly ~~
                               ATTORNRY WRERAL OT~>TRXAS



                                            . D. Pm&t, Jr.
                                                               L-
                                                  Assistant
                                                         .'
                                                          ,:


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