ifotmrrbla A. C. Spencer                      OpLlon No. WW-97
Executive Directo$
Texas State Soil Caimbrvrtion     Board       Ro: Jr the State Board of Water
Temple, Texas,                                    Engineers, under the State Iawr
                                                  rcguitrd  tn approve wawrahed
                                                  plans and the ,dcstgn and speci-
                                                  flcatioar for individwl  structures
                                                  in the pbn 7
Dear Mr.   8pePcrr:

             With respect    to your letter   dated March   20. 1957, which wa
quota ill part as followa:

              “1. If:@ Water Control sad Improvement District,
       organized under Texas Law is co-sponsor and contracting
       agency. for a, Watershed Protection and Flookl kavkatlon
       Project 8s rathbkized under Put&c Law’.564, Ack df tba
       83rd Congiebs. es amended under Public Law 1018, Acts
       of the 84th C,ongrecln, and

                   *a. &art of easements and rights-of-way,    con-
             tract rdminirtrrtioa  at&d operations’ and matntenance
             is financid by bonds issued by the district,, or

                  *b, Above costs are financed by contributions
             to the $istricf by individuals, groups, municipel)ties
             or counties, or

                  %i Chat of e~semeate akd rights-of-way arid
             ebntract, administration  are d$atcd to the dirrtrki
             and (ljbonds   are issued, or (3) annual kx revenue
             is used to finance operation ind maintenance costs,
                        .
       is tsu State Brprrd of Water Engineers,  under State Laws
       required to,appk&e watershed plans rnd the design and
       rpeciNcations  for indlviduai structures in the plan?
      *a. If a county serves   es co-sponsor       and con3tecting
agency and                                                                          .
           “a. The county gine’r& funds are used tp pry,             :   _
      coots of easements end rights-of-way,   contrnct ad-.
      minirtratien  and operations and maintenance, or

          “b., &+a1     ad valorem     taX funda ore used for
      8bOW colh, or

           “c.. All easemente and rights-of-way ere donM&,
      wi& the county paying costs of contract adminlrtr~tha
      and apardoa end maintenance,

18 the State Board of Water Engineers, under State Lrr*
t*~ulmd to gtp@ve wderrhod plans and the dkei@i ra8
IS(rctficaiions for individua,l structures in the plan?

      -3. If a soil conservation     district   is sponsor   and             ,/--
comtr8etlng lgcacy 8nd

           ‘e.. All costs of easements and rtghts-of-way
      ~6: donatdd, wid chtrac% .adininistratton and opera-
      tions and maintenance are financed out of distrtct
      fundr (no taxes or bonds), or

           “b, All of above costs     are donated to the di&rlct,

is the Stets Board of Water Engineers, under State J+we
r.eqoired to approve watershed plans and the design and
lpecificationo for individual, structures in the plan?
       ‘Pnbllc Lew 566 as amended by Public Law 1018 #es-
&tr thh’addttlon of~wrter storage apece to flood prrveatten
ikroctures, provided, however, that no structures     shall &ore
more then 25,000 acre-feet and provided that in such casen
the Fedare Government will pey the full cost of the structiurr
a&lo-d for flood prevention with a muntcipality,    individual
or 8~~8 peying the additionel coat (including engineering
eerytees) of m$er conservatton capecity.     The water user
woutd secure nec~eoeery weter storage.rights    through the
$tMr Btprd of Water Engineers.
                Jlonorable A. C. Spencer,     Page 3 (~~-97)



                                *The above being true:

                               ‘4. What effect would w &ddWm of mwatriprrl or
                        irripdion,watw stor88e capreity to a flood wrt~retaxd-              I        ,.
                        ing structure bavs on the qua&on of State Board of Water                “.
                        Engineers’ approval of,the over all watershed plan and
                        darfgn of individual stiuctusea?

                                9. Ia,tbs State Board of Water gnginesri, requjrad
                        b9 law to approve the plan ad drrign of e d,rrtnrgr project
                        plmn~d and conatructod by (1) # woktx control and impr@vW
                        mat dlrtrfct,   (8) aotl coneerv*ti@n dirtrict,   or (3) county,
                        with the technic&l and financial irrirtmtc      of tha Soil Con-
                        tirva$ton &rvisr    furnlrhrd uad8.r Public Law 566, an anwaded,
                        when tba eubdivieloa of Statb Oavernmant furnisher the e8or
                        meats and rights-of-way,     contract rdminirtrtitior,   l $8rt of
                        construction coats and operatie and mrint*inr %s p*ojecrt?“.

                .w,e tandrr   $& following opinion:

                             The beata inquiry psrtitning to the puerthq pugkd htnw Is --
                what ere~ the dutia.i of the Board of Wadr Engineerr, h aqsrfairad by the
                Constitution of Tanas end ~Teuas Statutes, relative to the typea of ntructures
                compraheaded by Public Lawr 568 an,d 1018* ?

                             The title and enacting      clause   of Public kw   566, as amended,     *
                a@pra, la quoted as follow&:



                               “To rdthortle the Scerekry of Agriculture to coop-
                        erate with dM.ee and local agencier in the plannfng and
                        carrying out of works ai improvement  for roil conBerva-
                        tide, and for other purporbs.

                               “Be it enactad by the Senate and House of Rapre-
                        aenbtives~ of the United States of Americ@ in Congrfsa
                        .asremblcd, That erosion, flood water, and sediment dim-
                        ager in th+ retersbedr   of the rivers end streams of the
                        United States, causing lose of lifa and damrpo td propartp,
                        coutitute  e menoce to the n8ttonal welfare; and that it is
                        tlu WXASQ of Congress that the Federal GOvQrnment     should


I
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    . ..
    Honorable   A, C. Spencer,   Page 4 (WW-97)



          @operate with status and their political subdivisions,
          soil or water conservation    districts, flood prevention
          orcontrol   districts, and other local public agencies for
          the purpose of preventing such damages and of, furthc7;;
,
          tn& the conservation,   development,, utilization, a~nddis-
          posal of water and thereby of preserving and protecting
          the Batton’s land and water resources.”        (Emphasis
          supplied)

                    Article 7472t, V.C.S., places certain duttes upon tbe Board of
    Water Engineers with re,spect to federal projects affecting public waters in
    Texas. This article provides that the Board shall hold hearings in the same
    manner as In the case of hearings held on applications for permits to appro-
    priate $tate waters.       In determining the feasibility of the federal project, the
    Byrd fs required by stat&s to consider the following:           (a) Effect ‘of such
    federal project on wakr users on the stream: (b) the public intersst to be
    served;. (c) development of dam sites to the optimum potention for water con-
    servation; (d) integration of such federal project with other water conserva-
    tton acttvtties;    (e) pro&&ion of the State’s interest in the Texas water resour-
    ces; (f), engiqeer.ing, practicality’of  the f&era1 project, including cost of
    construction and maintenance.

                   Tka provtstoas of Article 7472e are cumulativa of other ~statutes
    relating to public waters tn Texas and provides a particular type of hearing
    before the Board of Water Engineers for federal projects affecting such public
    wators.    It does not repeal or modify other statutes placing mandatory duties
    upen the Board of Water Engineers.      While it is clear that under Subdiviston
    6 of the!Ac$ the specific type of hearing provi,ded in Article 7472e is not re-
    quired of projsets dev$opad in cooperation with the Secretary of Agriculture
    under. the watershed pttikction and flood prevention acts, the subdiviston
    clearly provides no examptfon of any federal project from the Board.8 jurts-
    diction conferred by other akkks.       Therefore, an examination of the.ae staG
    rites is ahcasrary to a determination   of your questions.
             I
                                  BOND ISSUES

                  Except in cases where preliminary    bonds are authorized, (Article
    7880-~31.;V.C.S..), before bonds are issued, the Board of Water Engtneera has
    a statutory duty of passing upon plans by (a) water improvement       dktrick
    (Arttcle 7799, V.C.S.); (b) water control and improvement    districts (Article
    7880-139); and (c) fresh water supply districts (Articles 7936 and 7799). These
    sktuteolplace   a definite responsibility upon the Board to make a thorough
  .

                                                                 .~




Honorable   A. C. Spencer,   page 5 (WW-97)



iawstigetton    of proposed improvements     before apprWk# .baMis. Thk 1s
trw wbetbsr the bond proceeds are used only for purchase of right-of-way
or fiood eesements,     or for such purports as well as for payment fOr the
structures   involved.   See Hopkins County Levee Improvement District Nc: 1,
et al., v. Smith, et al., 266 S.W. 800, error ref. ‘&therefore, except for proper
expenditures of preliminary      bond funds, in each situstion described in your
questions involving the issuance of bonds by such water districts, coarpliance
with statutes requiring Board approval of plana is required.

             Counties are giwn statutory ruthorlty to isme bonds for the
creation of drainage districts.  Article 8097, et seq., V.C.S., and the Attorney
General is required to approve these bonda, Articles Bl32, 6136a, V.C.S.
Howewr, there is no statutory requtrement that the Board of Water Engineers
approve plans of such districts.

                       APPROPRIATiONS          OF WATER

             Artlclr 7492, V.C.S., providea:

              “Every psraon, association of persons, publtc or priwtc
      corporation, politics1 su~iviston  of the Skk,   agency of the
      Strte or of tlk United States, whmshall, after this Act ,ehail
      kke effect, desire to acquire the right to appropriate,   for the
      purposes skted in this chapter unappropriated     waters of the
      Stzta, rhsll, before commencing the construction,    enlargement
      or extension of any dam, lake, reservoir   or other storage work,
      or any ditch, canal, intake, head gate, pumping plant or other
      distributing works, or performing any work in connection with
      t&s storage, taking or diversion of water, make an application
      in writing to the Board for a permit to make such appropriation,
      #torage or diwraioa.”

             Article   7500a, V.C.S., provides:

              ‘Anyone may construct     on his own property a &m or
       reservoir   to impound ‘or contain not to exceed two hundred
       (800) acre-feet of water for domestic end liwstock purposes
       without the necessity of securing a permit therefor,”

              Under these statutes a permit from the Boerd of Wakr Engtneeis
b required before commencing      construction of any itructure to ba utilized in
tbs lppropriatton of public waters for any of the beneficial uses outlined in           t:
                                                                                        “,;~

                                                                                    .
~Rrmarable A. C. Spencer,   Page 6 (WW-97)



Arttcie 7470, V.C.S., except for 200 acre-feet reservoirs for livestock and          *
domestic purposes constructed on privats property. Therefore, a determine-
tion of whether the structures contemplated by Public Laws 566 and 1018
aft& an appropriation of water is required.

               Even though these structures    are designed to utilize water under
c.trcumstances    which would constitute an appropriation of water wit&in ths
mean&g of the Texas statute, no appropriative       permit is required unless the
structure is located on a “watercourse” as that term is defined by the courts.
Turner v. Big Lake Oil Co., 128 Ter. 155, 96 S.W.2d 221 (1936); Hwfs v.
Short, 273 S.W. 785, fer.Ctv.App.      (1925). The Supreme Court of Texas in the
Hadfs v. Short case defiwd a watercourse ae follows:

              ‘When it is said that a stream in order to be e natural
       watercourse    to wkkh water rights attach must have bed. banks,
       a current of  water, and a permawnt source of water snppl7, we
       have only described in detail such physiographic and meteoro-
       log-1   characteristics   as make the use of the stream for irri-
       gatton practicable.     When it ts once shown that the waters of a
       stream are so confined and persistent      in their course, and flow
       with such freqwncy and volume ,&at it is both practicable and
       valueble to irrigate therefrom, it is a stream to which w+r
       rtgbts attach.”

             As   to the meaning   of *source of supply”, tbe Court atited:

              “All authorities agree that a current of water is necessary,
       yat the flow of water need not be continuous, and the stream inay
       be dry for long pertods of time.”

                Generally, if the structure is not located on a~watercours~e, and        ’
only differed surface waters are involved, no appropriative      permit is required
to beaeficielly   uttlize diffused surface waters.   Turner v. Big Lake Oil ~Co.,
         Fer a detailed discussion of the holding in the Turner case, see Right@         ,‘~
       we Surface Waters in Texas, Proceedings,         Water Law Conference,
June 17-18, 1954. University of Texas Law School.

              Aa to structures to be located on “wakrcoursesar     tb nec+rLty
 of an appropriative  permit .depends on a number of c,hxunshtce~m which must
 be determined waler the bets of each case. If the strwturem te be coemtracted
 m&&r Public Laws 566 and 1018 store water, under conditioas other then tbooe
.wmpted     by Article 75008, we are of the opinion that appropriative  permits
-M&O       A. C. 6pencer,    -pa   7 (~~-97)       i




lm  requtred rince the l$ o r ofa     g e conrtttutnr
                                     wa ter              a n   l
                                                               ~pproprWion*.      we
qu&e $IuWhlao, Selected Problemr       h the Law crfawr        Rigbtr in the fert.
k&c,   Pub* 418, U.S.D.A.,   at P. 324:

              *T&e etoragc of water IO a means of mokiq l      prtag flood
       flew~ ayailablt for late oeason use, when the direct flow of
       *&earns is usually low, and of carrying watef aver from pars
       of abundant prccipttatton to supply the ddficicncies of subseqwut
       draw@ soasone.      It is a memo of conservation    of water 81 well
       lo l feature ti aood protection;  hoace appropriations     may be
       mnde for&wage us well as for direct use of water. Tbe etorage
       ta d m,suke a meaaa ,%aan end--&a application of watar ta bene-
       ficial am. qach am the t?rtgWm     of land, ot tha parrtng of weter
       area@ a pleat for the pwratlon of slectriccrl energy.”

!Eka Supreme Court of California has hell that the rtorage of rota? fer ‘fbod
c@ntrOl, ,equaliution  and stabiliution,    of flow end future uee” islmong the
bftofei     uses of water for ah ich an l   pptoptiatton  may and muet be made.,
                              13 Ca!.Od 4g4, 90 Pec,gd 531 (1939). Accord: Moore
                                       140 Pac.2d 292, 802, 22 Cal.2d 725 (1943r;‘--
                                     . C. Wash., 42 Fed.Supp. 459, 468.

              Prom bur correspoadenca    wtth you under the dates, of April 16
rJ 19, 1957, we tmderetand thet the rtrwturor     contemptted by Public Lewa
w end 1018 are pttmartly flood water retarding rtructurer rether then
rtcraga ltructarea befag incapable of storing more than 200 acre-f&d of
-2~    without modtftcation, and that ne we is made of the water retarded.
w     wat$r being automatically    roleared    am rapidly as t&e   drum   c&awl
will carry it ~tthout flooding.                                                            ‘F
                                                                                       &
             Accordtng to Hutchins,  Selected Problems la tL I&r of Water
                     oq~r, a,uch flood water tetirdiu& strwtww     do *et in-
                    F or&kattky cantwwpl*tod by approprtattotn 8trl&oa.    10


              *Their purpore is to regulate flood flows, not to stow
       waCt for later use; and whils they necessarily      withheld water.
       )he detention ia for bai,ef periods.  Thta ta e benrfictel purpoea
       {n the interest of land conservation   afid flood protection, but
       k aat auoh a use of water as is ordinarily c~@t#$btsd         by the
       appropriation statutes.    The purpose of the structure is to bene-
       fit the public, and not to acquire an exclusivs   right to the flow
B~oporabla A. C. Spencer, Page 8, (WW-97)

                                                           ’

        of a ipecific quantity of water for the eole uao of an individual
        appropriator or group of appropriators.     In thio case, the wata?
        is not wan&d at all.’

              An examination of Article 7470 indicates no legislative intent
&a$ tba retardation of flood flows without any storage or baneficial uaa for
the purposes stated therain is in@uded withtn the purpoacs for which an ‘
appropriativa  permit may and must ,k obtainad.

             We therefore coaclude that the flood retarding feature of the :~
structures contemplated undtr Public Laws 566 and 1016 deea not constU~&
an appropriation wtthtn tba meaning of the Texas statute aad that no appro-
priattw perm,it ia nquirad for thie parpose alone.

              Our holdiag that an appropriative permit is not rtquked for the
eoas$ructto~ of flood tatarding structures by the politldal subdiviabrs   of ke
8tata auntloaad~‘ln your letter ta aot to be ln~rprttad as a holdiaq that no
a-r&y      froth thb Stata t8 necessary to obstruct the flow of a public wator-
couaa    when no appropriation is effected. The public right and d&y to coo-
 serw and develop public wattrs vested in the State by the Texas .COtWitdiO&
Artkle XVI, Saction 5,9a, and the Stati’s ownership of euch waters., Article
 7467, V.C.S.., miy well require that permission to obstruct a watercourse be
 obtaiaad from the Stete even whm.tttle to thenbed of the wattrc.ourse Ls not in
.tha State. .Lnthis, opialoa we haw.asaumed that the statutory l nth o rolder
                                                                           tty
 whleh each of the political aubdivisioas menttoaed in your lettar operates la-’
 cludas the authority to obstruct publtc watercoursea for flood control purpekseei

                l-forever,                not only retard flood flows ~bat are
                             these structures
designed to provide up to 200 acre-foot of water’storage ia tba l   edtmentaxy
pool. We ate advised that when the structures     are bull& the uoe of the sedb
mantary pool for livestock arid domqatic purposes by the kndowura        as wad
aa PM for silt storage is contemplated. From what has been raid above it ta
apparent that utader these ctrcumrtancts an approprtatlva     pdrmit is required
unJem*the water storage provided is excepted by Article 75008, V.C.S.. per-
mWtlng tha constructton on one’s own property of a dam or reservoir with
capactty up to 200 acre-feet for iivestock and domestic purposes without an
approprtative     permit.

                The only question concerning the applicatioa of tM8 axamptioo
to the circumatanccs    outlined tn your letter relates to the requiremeet tbait
the dam or reservoir    be iocated on 8neId *own. property.     This reqairamant
of ownership of the land by the owner of the structure necessarily prohibits
the location of structures which would otherwise be within the 7500a axtmp-
tioa across streams where the State of Texas has title to the bed of the stream.
       .




     Honorable A. C. Spencer,        Page 9 (WW-97)



                  The beds of all navigable streams, including those made navigable
     by virtue of Arttcle 5302, V.C.S., are the proparty of the State. Stste of Texas
     v. Bradford, 121 Tex. 515, 50 S.W.2d 1065: Manry v. Robieon, 122 Tax. 213,
     56 S.W,.2d 438; Diversion Lake Club v,, Heath, 126 Tax. 129, 86 S.W.?d 441.
     Whethtr the State owns the bed of the stream at a particular location under
     Article 5302 Is determined by whether the stream or tributary tn question has
     a nlvtrage width from cutbank to cutbank of thirty fctt from its mouth to the
     location in question.  Mot1 v. Boyd, 116 Tex. 82, 286 S.W. 458; Diversion Lake
     Club v. Heath, m;      Heard V. Town of Refugio, 129 Tex. 349, 103 S.W.2d 728;
     Stste v. Bradford, supra.

                  Article 5414a, V.C.S., commonly known as the Small A,ct, validated
     certain pstsnts on lands lying across or partly 8cros.s watercourses     or nsvi-
     gable ltrtama by granting and relinquishing certain ltmited rights ,to previous
     patenttoe of such lands.   Section 2 of this Act reads in part: *. . . provided
     that aothing in this Act contained shall impair the rights of the gsneral public
     and tba Stste la the waters of streams or the rtghtr of ripartsn and appropr,is-
     ti# owners in the w8k.w of such etreama , . . . ,II Tht Supreme Court of Texas
     in State v. Bradford, m,       construes the above quoted rsservation   to the Stste
     and public of the waters of the streams involved in the Small Act ss including
     -sll things neceeeary to the practicable and lubstanttal use of and enjoyment
     of tk thtngs reserved.    It carries with it the power to construct dams or other
     worka upon or across the bad of the river in order that tht public might enjoy
     tha rights of irrigstion or other use of the watsrs.Y

                   In some limttad situations, the State hss title to stream beds
     which do not meet the test of Article 5302. Prior to the enactment in 1837
     of what is now Article 5302, the Spanish and Mexican laws with respect to
     watorcoureee were in affect.     Under these laws the waters of all streams,
     regardless   of their width, were reserved to the State. Heard v. Town of
     Ret&o,     eupra; Ststs v. Bradford, m,     at page 1073.

                  We rtcogniae that it is most difficult in many caioe to dettrmino
     whether the etraam bad  is owned by the State at a particular location, and
     whothar, therefore,   Article    750011applies; howewr.   we undtretand that moat
     of tbaoa flood retarding structures will be built on small tributsriee     high up
,,



     in tb# wate)ehed. . Stnce thh thirty foot average width test of Article 5302
     applies only from the mouth of the particular      trtbutary tn questton, the doter-
     minati?n may not be too complex.      In situation8 wbare tht stream bed ir not
     tha property of ths State. Article 7500s would exempt ths appropriativt       permit
     requirement:    (a) where the governmental body owning the structure owns the
     property or has an easement     for the etructure, (b) the storage feature of the
                                                                        ..




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    tlonorebb     A. C. Spencer,     Page 11.(WW-97)



                    watarshed   pXans and the design and spe~ifkatione
                    of individual etructures in such plans where bends
                    are issued by a water ,tmprovement district, water
                    contro&snd improvement district. or fresh water                        :
                    supply district for purpkcs other than those for
                     which preliminary bonds mey be properly iseued.
                     The Board of Water Eaptneers is not required to
                     approve county bondb issued for, creating a drainage
                                                                                     ..
                     dimtrict.

                                                       Very truly yours,

                                                       WILL WILSON
                                                       Attornev General    of Tere



                                                       BY
                                                            Noughta     Br&e,        Jr.
    Hb:tiw                                                  Aaaistent

    APPROVED:
    OPIRION COMMITTEE :
    W. Grrdy Chandler , Chairmen
    I, Arthur Sendlin
    Richard Stone
    B. II. Timmine,         Jr.

    IEVIIEWED FOR THE ATTORNEY               GENERAL
    BY: Gao. P. Blackburn




    *WmtermhadProtection and Flood Prevention Act (P.L. 566, 83rd Cow.;
     69 Stat. 666), as amended by the Act of August 7, 1956, (P.L. 1018, 84th
      Cw.;       70 Stat.   1088).




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