                                                         4X.3




Hon. H. A. Beckwith, Chairman
Board of Water Engltieers
Austin, Texas
                Opinion NO. v-1060
                Re:  Procedure for designating
                     underground.waterreservoirs
Dear Sir:         .~~~
                     pursuant
                          .   to~Artlcle 7880+3_c,V.C.S./
         Your request for an opinion presents ‘s&en
questions concerning the cqnstructilonof Subseotion C,
Article 7880:3c;V.C.S.,passed by the 51st Legislature,
Acts 1949, page 599, and providing a8 follows:
         ."
          -Cf No petitibn for the~creationof
         a Mstrlct to exer&se.the pOwera land
         functions set forth 1n~'SubaectionB of
         .thisSectidn 3c shall be consideredby
         a CommissionersCourt OF the Board/es
         the case may be;unless the.area to be
         Included therein is coterminus.withan
         undergroundwater resekvolr or,subdiii-
         slon thereof whhichtheretoforehas been
         defined and designatedby the Board as an
         undergroundwater reservoir or subdivision
         thereof.  Such district, in conSorm$ng to
         a defined reservolr or subdivision,may
         lnclude.allor parts of a county or coun-
         ties, municipal corporations.or other:po-
         lltlcal subdivisions,Including but not
        .llmltedto ,WaterControl atidImprovement
         Districts.
         "It shall be the duty OS the Board
         from time to tlme.and in'any event up-
         on application,bypetition In the manner
         provided in Section 10 OS the Acts of
         1925, Thirty-ninthLegislature,Chap-
         ter 25, page 88, after notice and hear-,
         ing as provided for In Se&ion 15 and
         Section 21 (as amended), Acts of 1925,
480
      Hon. H. A. Beckwith - Page 2 (v-1060)


               Thirty-ninthLegislature,Chapter 25,
               to designate undergroundwater reser-
               voirs and subdivisionsthereof and
               thereafteras future conditionsmay
               require and factual data justify to
               alter the boundaries thei%6f;provlded,
               however, such alterationshall not.in-
               validate the creation-ofany District
               theretoforecreated wlth.the.powers
               provided for In this Section 3c.”  .'
                For the sake of clarity, we repeat your
      several questions before our answers thereto.
                1. .&es the law provide for two separate


                .S&&n   B of the Act provides that underground
      water 'contiervation~
                         dlsttilctsshall be created wider 'the
      procedure~usedlr.,q?eat'ingwater Control and Improvement
      districts. These latter districts.arkiorganlzed  ,bypetl-
      tion "signed by a ~majorityIn number of the holders OS
      title to lands tbe'reln,and the 0wriers.of.amajority ln
      value of the iands therein, a8 ~sht$qn
                                           by tQe county t&x
      rolls; provided, JS the number of au@ landowners therein
      Is more than-fifty,.such petition shall_.be.sufSicientif
      same is signed by.<IS- landowners.~ ~. .,,.~"
                                                 Article 7880-10.
      Sect1on.C oS,the Act states~thatno .petlt$onfor the crea-
      tion of an underground,w~,ter.aonservatitSfKdistrlct
                                                         shall
      be considered.by.+ Com@ssloners' Court ,orthe Board un-
      leas the ~areato @e Included therein is cotermlnuswith
      an undergroundwater reservoir'H which thketofore has been
      defined qd ~deslgnatedby the Boar!." This.languageex-
      pressly Indicates.thata,reservolr.deslgnal$on1s to be
      made in advance ,ofthe petltlon~tocreat+:$he district. It
      Is also evldent$thatsince the -petition.,to~,create
                                                        a dis-
      trict must be signed.by the owners .ofl&W-overlying the
      reservoir.and,because .thepetition mg&de$.cribe an area
      which is coteimlnuswith the underground~reservolr,a de-
      signation must be made;ln advance to determine the necessa-
      ry parties to the.petltion:eswell as-.tfiearea to be cov-
      ered thereby~,'It seeme clear that the Act .lntendedsepa-
      rate proceedings.
               2. Can,the Board of Water Engineers Initiate
      a deslmation proceeding on ita~own motion, and without
      an application therefor?
Hon. 11.A. Be&with - Page 3 (V-1060)


          3.  If the Board may Initiate a designation
proceedlnp;.Is it necessarY to~lssue'ndtlaesand hold
a hearing as brovlded for In Article@ 7880-15 and
WO-21 before the desigpatldncan be made?
          4, When applicationla made for the desig-
nation of an undernroundreservoir; Is it necessary
to issue notices ,andhold a hearing as provided for
ti A~ticles~7lMO+j and 78380-213
         The only language in the Act which contemplates
any sort of proceeding-forthe purpose of designating
undergroundreservoirs Is the second paragraph of Sec-
tion C, which provides as follows:
        "It shall be the duty of the~Board
        from time to time alidIn any ev@nt
        upon applicationby‘petltldh in the
        manner provided in Section 10 of the
        Acts of 1925, Thirty-ninthLegislature,/
        Chapter 25, page 88, aSter.noticeand'
                as provided for ln Section-15
        %I%= ectlon 21.(as amended) Acts of
        1925. Thi'Fty-ninthLegislature,Chap-
        tky-25, to designate<tidergroGdwater
        reservoirsand subdlvlslonsthereoi and
                   as Suture conditicinsmay re-
        quire and factual data justifs to al-
        ter the boundaries thereof; provided,.
        bowever, such alterationshall not in-
        validate the creation df any District
        theretoforecreated with the Towers pro-'
        vlded for in this Section 3c.   (Em-
        phasis ours)
          The question which arises in attempting ta
construe
  ._     this paragraph $8 whether the language "after
notice and hearing relates only.to the petition which
may be filed for designationand pursuant to which the
Board must "In any event" designate an undergroundre-
servolr, or whether such language also relates Wthe
general duty of the Board to "from time to time" desig-
nate reservoirs.
Hon. R. A. Be&with - Page 4 (V-1060)


          Obviously some form of notice a'nahearing
Is antlclpated~,whether in relation to the appllca-
tlon by #etitionj or In connectionwith the Board%
duty to from,~tlmeto $lme" designate.:It would seem
that the purpose of the-notice'Is lnorder to apprise
those,:wlt~lnthe reservoir area that an underground
water conservationdistrict Is contemplated. And the
hearing would:,appearto.be for the ~purposeof per-
mitting 'those.wlthinthe area tomsubmit whatever en-
gineering or other data they wish iidsubmit for the
purpose OS having thelr~lands Included or excluded
from the area S-ally to be submitted to the procedure
under which a 'districtmay be ultimately created. Jo-
tlce and hearing, therefore,appear to begof impor-
tance only as they are a step or conditionPrecedent
to the subsequent creation of a district. If this Is
the proper constructionof the purpose of the notice
and hearing, then it Is unreasonableto suppose that
the Legislature intended to .apprlseonlg:the residents
oS'~anarea covered by's formal designationpetition.
This gurpose applies .a8wel.l.toany designationwhich
ikayhave for its ultimate and lmmedlatt3object the
creation of;a.distrlct:
          If we are wrong ,lnour constructionof the
purpose of the notice and hharlng requirement,never-
theless,,wMt&er purpbse Is behind the requirement
would apply to all d&&nations ~madepurstint to the
statute whether predicated upon'petitlonor not. De-
signation is the object of.the statute, and If there
Is any reason for a hearing upon the applicationto
designate, this s&me reason would apply to,designa-
tions made bJithe Board on Its ,ownmotion.
           Pursuant to Acts 1929, &at Leg.~,2d C.S., p.63,
Article.,7537a,.V..C.S.,we understand..that
                                          the Board con-
 tinuoualy accumulatesdata on underw'ound,reseryolrs,
.and that it &kin   its office.tips showing the ldoation
 of.the bdst know, if ,not:all,~?f the,undergWund reser-
 voirs of T&x&&. :YThedata accuingatedby.thi.Bo&rdhas
 been transferredto maps showing underground: reservtilrs
 In relation td the overlylngstiface. .Thes.e.n!ap@are re-
 vised from time to tlnieas additional lnfoimk'tlonfrom
 drilling and other sources becomes available. In a.
.
                                                              483
    Hon. H. A. ~Beckwlth- Page~5 (v-1060)

     limited sense, this might be~considereda reservoir
     designation,but we do not think It is the type of
    .deslgna$ionanticipatedby the act in question. The
     act would .seemto~antlclpatesome more Soz?+l deslg-
     nation such.as the carrying.fwmrd of your research
     Into ~8 gormal .ordermade,by ~theBoard expressly pUr-
     suant to said act.
              With this ,& mind we believe that the
    Leglslaiire;ln requiring tie Board "from tlme'to
    time" to designate undergroundreservoirs,mistihave
    lntepded that the formal designationanticipatedby the
    Act apply only where the~Board 1s~actirigpursuant to
    th? Act and not when the Boardsis simply conducting
    research. This latter, we conclude, is not In fact a
    !'designatlon"as t&&word .I&uaed In the statutes.
              Returning now specificallyto the three ques-
    tfons copies above, the Plain la    ge C&the Act Itself
    rdquired that we answer Questionr+:,the    aSf+natlve.
              We answer .Questioti
                                 #33ln the negative, but
    'distlng~lshbetween the research ac$$*lty 'whichyou
    carry forward under Article 7537CBnd a designation
    which Is niadepursuant 'tothe act in question. Notice
    and hearing are required only in the latter instance.
              We answer your Question #a In the affirmative.
              5.  What is your opinion as~to the necessity
    for notices ana hearing a8 to a later alterat~icin
                                                     of the
    boundaries of undergroundwater reservoirs and subdl-
    visions thereof?
               For reasons already stated, we are of the
     opinl& that notice and hearing are not required for
     the purpose of altering the boundaries of underground
     reservoirs where no district has been created. Where,
     on the other hand, a district has been created, it Is
     our opinion that.the Act requires notice and hearing
     as a condition precedent to any alteration OS reservoir
     or reserv.olr~subdivlslonboundaries.
              6. Since the Act adopts~the water control
     and improvementdistrict creation~procedure,shall the
404

      Hon. H. A. Be&with - Page 6 (V-106~0)


      Board collect the fees provided for therein when de-
      signatingand creating the underground districts?
      Please examine Article 7332.'VACS,and set forth
      the exact fees to be collected on a "designation"
      and the exact Sees to be collected on the process-
      lng of a "creation"procedure; also, please state
      what fees can be charged on an "alteration"pro-
      cedure and on the application for the approval of
      a bond issue.
                 Section B provides that the adnilnistratlve
       and Drocedural'provislons whlch'relateto the forma-~~
       tlon of titer controland improvement districts shall
       apply, where applicable,to the creation of under-
       ground water conservationdistricts. Article 7880-21
       provldes~that a petition filed with the Board of Water
       Engineers for the purpose of Organizingwater control
      land Improvement.di&rlct "must.be accompaniedb a
       money deposit of Two Hundred and Fifty ($250.00 7
       Dollars to pay all costs which may be incurred In
       such proceeding. . . ." Since all OS the provisions
       dealing with water control,andimprovementdistricts
       apply generally to petitions to create underground
       water conservationdistricts,we are of thenopinion
       that such petitions must be ac'companied bg the
       $250.00 deposit prescribedby Article 7880-21.
               3ectlon C, on the other hand, provides for
      "notice and hearing as provided" by Articles 7880-15
      and 7880-21. Brticle ,78843-15,describesthe ma+er
      ln whlch.the notice oS,hearlng on petition to'create
      water control and Improvementdistricts ls.to be .glven
      atidapplles.onlyto a district created by~,Camalssloners~
      Courts within a single county. Article 7880-21 confers
      jurlsdlctlonupon the Board tolbear and determinetill
      petitions to~createwater cdntrol and lmprov~m~nt.dls-
      trlcts which include land located in two or'more coun-
      ties.. It provldes that notices shall be posted in all
      affected counties, rather than the s'lnglepoatlng
      prescribedby 78804.5 and for publlcation.lna news-
      paper of general circulationSn the affected area
      rather than in a newspaper published In a single
      county as Is prescribedby 7880-15. And.Slnallg,
      Article 7880-21 provides that the Board shall hear,
,   ’


        Hon. H. A. Be&with,- Page 7 (v-1060)


        consider.anddetermine the,petltlon"upon the Issues,
        and in the manner, form and time" provided In Artl-
        cle 7880-19. ,.Thlalast lnentlonedArticle states
        that the petition shall be granted if It appears that
        the organizationof the dlstrlpt Is feasible and prac-
        ticable, will.be a benefit ,tothe land included there-
        in and be a public benefit-or utility.
                  Inasmuch as the Board Is required by Artlole
        7880-3   to:deslgnate~undergroundwater reservoirsuhe-
         ther the same Abelocated in a single county or wlthln
         two or more counties, that part of 7880-21,whlchcon-
         fers jurisdictionon the.Board to hear only petitions
         which involve land located In more than one ~countywas
         obviously not meant to apply in deslgnatlngunderground
         reservoirs. The same is .trueof .thelast part of 7880-
         21,~wherelncross reference is made to 7880-19. The
         matters which must be consideredbefore the petition
         can be granted are obviouslymatters which the Board
        >$a to consider on the petition to create an underground
         water conservationdls'trlct and are not matters'to be
         passed,on.lnconnectionwith the hearing to designate
         an underground~reservolr;Thetonly p-ose the~,~Legle- I
         lature could have had in providing for notice and
         hearing as provided" in Articles 7880-15 and 7880-21,
         must have been.wlth respect to the notZce provisions
         of the two articles. Certainly, the hearing provl-
         slons of Articles 7880-21 have no appllcatlon. It
         follows, therefore, that the requirement for the $250
         deposit has no appllcatlonto a petition to designate
         an underground reservoir. This conclusion Is further
         borne out by the,faot that the deposit obvlousLy could
        .no,tbe collectedwhere hearing is held by the Board
         without any formal applicationby petition.
                  The general fee statute under which the Board
        ,oieratesis Article 7532. 'It is our opinion that this
        statute is applicablegenerally to whatever the Board
        undertakesunder 7880-30.   For example,,a fee is au-
        thorized for the recording and certifyingof certain
        Instruments,papers, maps etc. These fees should be
        collected. Certain filing fees are prescribed by 7532.
        ;;; the most part, these do not appear to be appllca-
           . However, a See of $25.00 Is prescribed for the
Hon. H. A. Beckwith - Page 8 (v-1060)


filing of each petition for the formation of a
district. This See should be collected for filing
petitions tomcreate undergroundwater conservation
districts. Since petitions to designate under-
ground reservoirsare not petitions for the forma-
tlon.oS districts, the fee la not due as to these.
We call attention to the fact that a general filing
fee of $1.00 Is required for each paper or lnstru-
ment, exhlblt'ormap, affidavit or anything else
authorizedand provided by law to be filed or which
ls‘flled. This See should be collectedwhether the
filing be made pursuant to designation,alteration
or creation. Article 7532 provides for certain use
fees. None of these have any applicationto 7880-3.
The usual.See of $25.OO,~asprescribed by 7532, should
accompany the Slllng of any applicationwhich Is re-
quired to be filed for the approval of bond Issues.
          7.  In the 'firstparagraph ~ofSubsectionC,
It Is required that the area designatedbe "cotermlnus
with an undergroundwater reservoir or subdivision
khereof." Is It perm$sslble to follow survey lines In
designatingan area thereunder or Is a survey necessary
:
$p order to deslgnate.anundergroundreservoir?
          In order to reply to this question, It is
necessary to determlne the meaning of the word "coter-
minus." Webster shows this word to be spelled coterml-
nous, and.gives only Its blologlcal~definition,as "of
g=oups.of OrganlamS, coextensive." ~Websterrefers for
further definition to the word.co@ermlnous, which he
defines as having a common boundary; having the same
bounds or limits; coextens~lveIn space, time, or range;
having the same ending. Prom this, we~take It that the
undergroundreservoir Is Intended to have, as clearly as
engineeringskill can produce ~theresult;the same boun-
daries on the surface as'are occupied by the reservoir
below surface, Itls unlikely that this result could be
&ached by following survey lines. Where It can be
reached,,it is permlsslble,.but~nototherwise. Wbe%her
an actual survey'on the ground ls:requlred,we leave for
your determlnatlon.'~But if your present maps show un-
derground reservoirs In relation to surface grants,~lt
would seem that a satisfactoryperimeter description
Hon. H. A. Be&with - Page 9 (V-1060)


of the reservoir could be worked out from the maps
you now have available.




               Section C, Article 7880-3c, pro-
        vides separate procedures for designating
        undergroundwater reservoirs and creating
        undergroundwater conservationdistricts
        and requires notice and hearing as a con-
 .-     dltlon preoedent to those designations
        and alterationsof reservoir boundaries
        anticipatedby the Act. The fees to be
        collected by the Board of Water Engineers
        under the Act are describedand the term
        cotermlnus,as used In Section C, Is de-
        fined.
                              Yours very truly

                                 PRICE DARIBL
                              Attorney General


                              By    a&
                                   H. D. Pruett, ir.'
                                      Assistant

APPROVED:
Joe R. Greenhill
First Assistant
