                               ATTORNEY GENERAL                      OFTEXAS
                                             GREG        ABBOTT




                                                 January 9,2007



The Honorable Harvey Hilderbran                           OpinionNo.       GA-0498
Chair, Committee on Culture, Recreation,
    and Tourism                                           Re: Whether the Edwards Aquifer Authority may
Texas House of Representatives                            reduce groundwater withdrawal permit amounts
Post Office Box 2910                                      for certain permit holders below the amount
Austin, Texas 78768-2910                                  specified in section’ 1.16(e) of the Authority’s
                                                          enabling act when, if allypermitted amounts are
                                                          withdrawn, over 450,000 acre-feet of water will
                                                          be withdrawn from the aquifer in a calendaryear
                                                          (RQ-0469-GA)

Dear Representative      Hilderbran:

         You ask about the power of the Edwards Aquifer Authority (the “Authority”) to reduce
groundwater withdrawal permit amounts for certain permit holders below the amount specified in
section 1.16(e) of the Authority’s enabling act when, if all of the permitted amounts are withdrawn,
more than 450,000 acre-feet’ of water will be withdrawn from the Edwards Aquifer in a calendar
year.’ We understand you to be particularly concerned about (I) existing irrigation users who, under
section 1,16(e), are to receive permits that allow the withdrawal of not less than two acre-feet of
water a year for each acre of land the user actually irrigated during the historical period’ (whom we
will refer to as “irrigation users”) and (2) existing aquifer users who have operated wells for three
or more years during the historical period and whose permits, under section 1.16(e), are to allow
withdrawal of the average amount of water withdrawn annually during the historical period (whom
we will refer to as “averagers”). See Act of May 30, 1993, 73d Leg., R.S., ch. 626, 5 1.16(e), 1993
Tex. Gen. Laws 2350,236l [hereinafter the Act].



         ‘“An acre-foot is the amount of water that would cover an acre of land to one foot, approximately325,850
gallons.” B&shop Y Medina County Underground Water Conservation Disf, 925 S.W.2d 618,624 n.1 (Tex. 1996).

        ?Ser Letter from Honorable Harvey Hilderbran, Chair, Committee on Culture, Recreation, and Tourism, Texas
House of Representatives, to Honorable Greg Abbott, Attorney General of Texas (Mar. 16, 2006) (on file with the
Opinion Committee, also available af http:Nwww.oag.state.tx.us) [hereinafter Request Letter].

          ‘An applicant for a regular permit must file a “declaration of historical use of underground water withdrawn
from the aquifer during the historical period from June 1, 1972,tbrough May 31, 1993.” Act ofMay 30,1993,73dLeg.,
R.S., ch. 626, 5 1.16(a), 1993 Tex. Gen. Laws 2350,2361. We use the term “historical period” throughout this opinion
to refer to the 2 I -year period beginning June 1, 1972 and ending May 3 1, 1993.
The Honorable Harvey Hilderbran              - Page 2            (GA-0498)




I.      Constitutional        and Statutory Provisions

        A.     Texas Constitution          article XVI, section 59

        Under article XVI, section 59(a) ofthe Texas Constitution, conserving and developing water
are “public rights and duties” about which the Legislature may adopt appropriate laws. TEX. CONST.
art. XVI, § 59(a). Subsection (b) authorizes the creation of conservation and reclamation districts
“with the authority to exercise such rights, privileges and functions concerning the subject matter
of this [section] as may be conferred by law.” Id. 5 59(b).

        B.     The 1993 Act creating the Edwards Aquifer Authority

                1.       Generally

        Consistently with its authority under article XVI, section 59(b), the Legislature in 1993
created a “conservation and reclamatron district, to be known as the Edwards Aquifer Authority,
     in all or part of Atascosa, Bexar, Caldwell, Comal, Guadalupe, Hays, Medina, and Uvalde
counties.” Act 5 1.02, at2351;4see also id. 5 1.01, at2350-51 (articulating theLegislature’sreasons
for creating the district). The Authority generally has “all of the powers, rights, and privileges
necessary to manage, conserve, preserve, and protect the [Edwards AquiferI and to increase the
recharge6 of, and prevent the waste7 or pollution’ of water in, the aquifer” and “all of the rights,


         ‘The Act has been amended by the following laws: Act of May 16,1995,74th Leg., RX, ch. 524,1995 Tex.
Gen.Laws3280,3280;ActofMay29,1995,74thLeg.,R.S.,            ch.261,1995 Tex. Gen. Laws2505,2505-17;ActofMay
6, 1999,76th Leg., RS:, ch. 163, 1999 Tex. Gen. Laws 634,63435; Act of May 25,2001,77th Leg., RX, ch. 1192,
2001 Tex. Gen. Laws2696,2696-97;ActofMay27,2001,77thLeg.,             RX, ch. 966, $5 2.60-.62,2001 Tex. Gen. Laws
1991,2021-22; ActofJune 1,2003,78thLeg.,R,S.,ch.        1112, $6.01(4),2003 Tex. Gen. Laws 3188,3192-93. None
of these amendments affect the portions of the 1993 Act that are relevant here.

         ‘The 1993 Act defines the Edwards Aquifer as

                     that portion of an arcuate belt of porous, water-bearing, predominately carbonate
                     rocks known as the Edwards and AssociatedLimestones inthe Balcones Fault Zone
                     extending from west to east ,to northeast from the hydrologic division near
                     Brackettville in Kiiey County that separates underground flow toward the Coma1
                     Springs and San Marcos Springs from underground flow to the Rio Grande Basin,
                     through Uvalde, Media, Atascosa:~Bexar, Guadalupe, and Coma.1counties, and in
                     Hays County south of the hydrologic division near Kyle that separates flow toward
                     the San Marcos River from flow to the Colorado River Basin.

Act § 1,03(l), at 2351; see also id. 5 1.04, at 2353-55 (setting out the Authority’s boundaries).

         ‘The Act defines the term “recharge” to mean “increasing the supply of water to the aquifer by naturally
occurring channels or artificial means.” Id. $ 1.03(18), at 2352.

         ‘The Act defines the term “waste” to mean:

                            (A) withdrawal of underground water from the aquifer at a rate and in an
                     amount that causes or threatens to cause intrusion into the reservoir of water
                     unsuitable for agricultural, gardening, domestic, or stock raising purposes;
                                                                                                         (continued...)
The Honorable Harvey Hilderbran             - Page 3             (GA-0498)




powers, privilegis, authority, functions, and duties provided by the general law of this state,
including Chapters 50, 5 1, and 52,9 Water Cocle, applicable to au authority created under” article
XVI, section 59 of the Texas Constitution. Id. 5 1.08(a), at 2356 (footnotes added). The Act further
requires the Authority’s governing board to adopt rules as necessary to carry out the Authority’s
statutory powers and duties; to ensure compliance with permitting requirements and to regulate
permits; and to issue orders enforcing the Act or the Authority’s rules. See.id. 5 1.1 l(a)-(c), at 2358;
see also id. 4 1.09, at 235657 (describing the nine-member board of directors).

               2.       Section 1.14: Limits on the total amount of water withdrawn

        Section 1.14 of the Act provides specifically for withdrawals from the aquifer and is one of
two sections that is particularly at issue in your request. See Request Letter, supra note 2, at 1.
Subsection (a) expressly requires that authorizations to withdraw water be limited to:


        ‘(...continned)

                          (B) the flowing or producing of wells from the aquifer if the water
                    produced is not used for a beneficialpurpose;

                           (C) escape of underground water from the aquifer to any other reservoir
                    that does not contain undergroundwater;

                           (D) pollution or hannfid alterationof underground water in the aquiferby
                    salt water or other deleterious matter admitted from another stratum or from the
                    surface of the ground;

                          (E) wilfully or negligently causing, suffering, or permitting underground
                    Water from the aquifer to escape into any river, creek, natural watercourse,
                    depression, lake, reservoir, drain, sewer, street, highway, road, or road ditch; or
                    onto any land other than that of the owner of the well unless such discharge is
                    authorized by permit, rule, or order issued by the [Texas Commission on
                    EnvironmentalQuality] under Chapter 26, Water Code;

                            (F) undergroundwater pumped fromthe aquiferfor irrigationthat escapes
                    as irrigation tailwater onto land other than that of the owner of the well unless
                    permissionhas been grantedby the occupantofthe land receiving the discharge;or

                          (G) for water produced from an artesian well, “waste”has the meaning
                    assigned by Section 11.205,Water Code.

Id. 5 1.03(21),at 2352; see also id. $ 1.03(4),at 2351 (defining “beneficialuse”); infra note 10 (quoting the Act’s
definition of “beneficialuse”).

         ‘The Act defines the term “pollution”to mean “the alteration of the physical, thermal, chemical, or biological
quality of any water in the state, or the contamination of any water in the state, that renders the water harmful,
detrimental, or injuriousto humans, animal life, vegetation,property, or public health, safety, or welfare or that impairs
the usefulness ofthe public enjoyment ofthe water for any lawful or reasonable purpose.” Act 5 1.03(17),al 2352.

        gWater Code chapter 52 was repealed in 1995 and its substance was moved to chapter 36 of the same code
See Act of May 29,1995,74th Leg., R.S., ch. 933, $$2,6,1995 Tex. Gen. Laws 4673,4679-701.
The Honorable Harvey Hilderbran           - Page 4            (GA-0498)




                        (1) protect the water quality of the aquifer;

                       (2) protect the water quality ofthe surface streams to which the
                 aquifer provides springflow;

                        (3) achieve water conservation;

                       (4) maximize the beneficial            use” of water available          for
                 withdrawal from the aquifer;

                        (5) protect aquatic and wildlife habitat;

                      (6) protect species that are designated as threatened                      or
                 endangered under applicable federal or state law; and

                        (7) provide for instream uses, bays, and estuaries.

Act 5 1.14(a), at 2360 (footnote added). With certain exceptions, subsection (b) limits the amount
of permitted withdrawals through December 3 1, 2007 to 450,000 acre-feet per year:

                         Except as provided by Subsections (d), (t), and (h) of this
                 section and Section 1.26 of this article, for the period ending
                 December 3 1, 2007, the amount of permitted withdrawals from the
                 aquifer may not exceed 450,000 acre-feet of water for each calendar
                 year.

Id. 5 1.14(b), at 2360. The four exceptions listed in subsection (b)-section 1.14(d), (f), and(h) and
section 1.26-allow the Authority to adjust the total amount of acre-feet withdrawn from the aquifer
in certain circumstances:

                  .     Section 1.14(d) authorizes the Authority, “in consultation with
                        appropriate state and federal agencies,” to “increase the
                        maximum amount ofwithdrawals” ifthe Authority “determines
                        that additional supplies are available.” Id. 5 1.14(d), at 2360.

                  .     Under section 1.14(f), “[ilfthe level of the aquifer is equal to or
                        greater than 650 feet above mean sea level as measured at Well
                        J-17 [located in Bexar County, see id. 5 1.03(23), at 23521, the
                        [Aluthority may authorize withdrawal from the San Antonio




         “For the Act’s purposes, the term “beneficial use” means “the use of the amount of water that is economically
necessary for a purpose authorized by law, when reasonable intelligence and reasonable diligence are used in applying
the water to that purpose.” Act 5 1.03(4), at 235 1.
The Honorable Harvey Hilderbran        - Page 5          (GA-0498)




                        pool, on an uninterruptible basis, of permitted amounts. If the
                        level of the aquifer is equal to or greater than 845 feet at Well
                        J-27 [located in Uvalde County, see id. 5 1.03(24), at 23531, the
                        [Aluthority may authorize withdrawal from theuvalde pool, on
                        an uninterruptible basis, of permitted amounts.” Id. § 1.14(f),
                        at 2360. The additional withdrawals must be limited to ensure
                        that “springflows are not affected during critical drought
                        conditions.” Id.

                   .    Section 1.140 authorizes the Authority to implement, enforce,
                        and revise water management practices, procedures, and
                        methods to ensure that, “not later than December 3 1,2012, the
                        continuous minimum springflows ofthe Coma1 Springs and the
                        San Marcos Springs are maintained to protect endangered and
                        threatened species to the extent required by federal law.” Id. §
                        l.l4(h),,at2360.

                   .    Section 1.26 requires the Authority to prepare a critical period
                        management plan that distinguishes between discretionary and
                        nondiscretionary     use; requires that all discretionary use be
                        reduced to the “maximum extent feasible”; requires “utility
                        pricing, to the maximum extent feasible, to limit discretionary
                        use by” water utility customers; and requires permitted or
                        contractual users, “to the extent further reductions are
                        necessary,” to reduce nondiscretionary use in line with certain
                        statutory priorities. Id. 5 1.26,,at 2363-64.

              3.       Section 1.16 and others: Permitting requirements,

        No person may withdraw water from the aquifer or construct a well without a permit from
the Authority except “as provided by Sections 1.17 [allowing persons who own certain producing
wells on the Act’s effective date to continue to withdraw water until the Authority takes final action
on permits] and 1.33 [exempting wells that produce no more than 25,000 gallons of water per day
for domestic or livestock use from metering requirements] .” Id. § 1.15(a)-(b), at 2360-6 1. A person
who is required to obtain a permit but who withdraws water without a permit may be subject to an
administrative or civil penalty and be enjoined. See id. $5 1.37(a), .38, .40, at 2366,236s.

        The Act expressly authorizes the Authority to issue three types of permits: “regular permits,
term permits, and emergency permits.” Id. 5 1.15(c), at 2361. The Act recognizes two types of
regular permits: an “initial regular permit” and an “additional regular permit.” See id. $5 1.16, .18,
at 2361,2362. Your questions concern only initial regular permits.

         To obtain an initial regular permit, section 1.16 requires an existing user to tile “a declaration
of historical use of underground water withdrawn from the aquifer” during the historical period. Id.
The Honorable Harvey Hilderbran           - Page 6             (GA-0498)




§ 1.16(a), at 2361; see also supra note 3 (defining “historical period” for purposes of this opinion).
Upon receiving the declaration and the requisite fees, the Authority must grant an initial regular
permit if the applicant has established “by convincing evidence beneficial use of underground water
from the aquifer.” Act § 1.16(d), at 2361. The “maximum rate and total volume of water that the
water user may withdraw in a calendar year” is specified in each permit. Id. $ 1.15(d), at 2361.
Section 1.16(e) provides the maximum total volume ofwater certain types of users may be,permitted
to withdraw (each sentence is numbered in brackets for purposes of the analysis that follows):

                          [l] To the extent water is available for permitting, the
                 [Authority’s governing] board shall issue the existing user a permit
                 for withdrawal of an amount of water equal to the user’s maximum
                 beneficial use of water without waste during any one calendar year of
                 the historical period. [2] If a water user does not have historical use
                 for a full year, then the authority shall issue a permit for withdrawal
                 based on an amountofwater that would normally be beneficially used
                 without waste for the intended purpose for a calendar year. [3] If the
                 total amount of water determined to have been beneficially used
                 without waste under this subsection exceeds the amount of water
                 available for permitting, the [Aluthority shall adjust the amount of
                 water authorized for withdrawal under the permits proportionately to
                 meet the amount available for permitting. [4] An existing irrigation
                 user shall receive a permit for not less than two acre-feet a year for
                 each acre of land the user actually irrigated in any one calendar year
                 during the historical period. [5] An existing user who has operated
                 a well for three or more years during the historical period shall
                 receive a permit for at least the average amount of water withdrawn
                  annually during the historical period.

Id. § 1.16(e), at 2361

II.     Facts

         You inform us that the Authority took applications for initial regular permits from 1996
through November 2005. Request Letter, supra note 2, at 1. After all the permits were issued, “it
was determined that the sum of all these permits exceeded the 450,000 acre feet” withdrawal cap.
Id. at 2. Indeed, according to the Authority, “[tlhe total of all statutory minimums is 521,439.722”
acre-feet per year.” To bring the total amount of permitted withdrawals down to 450,000 acre-feet




        “Letter from Darcy A. Frownfelter, Kemp Smith L.L.P., on behalf of the Edwards Aquifer Authority, to
Honorable Greg Abbott, Attorney General ofTexas, at 7 (July 21 I 2006) [hereinafter Authority Briefj; accordEowARos
AQUIFERAUTHORITY,     FACTSHEET:FM& GROUNDWATER          WITHDRAWAL      PERMITAMOUNTS       ESTABLISHED    2 (Nov. 30,
ZOOS),mailable athttp://~w.edwardsaquifer.org/pdfs/fact%2OSheets~inal%2OOrder%2OA~achment.pdf(last              visited
Dec. 12,2006).
The Honorable Harvey Hilderbran           - Page 7             (GA-0498)




per year, according to the Authority, it added “every permit holder’s maximum historic use together
and [then] proportionally reduc[ed] the sum of’ the amount allowed under each regular permit.”
The Authority’s rules refer to the proportionally reduced withdrawal amount as “senior rights” or
“uninterruptible withdrawal amount.“‘3 See EDWIWX AQUIFERAUTHORITY,EDWARDSAQUIFER
AUTHORITY RULES $5 702.1(b)(56), (64), 711.164(d), available at http://www.edwardsaquifer
.org/pdfs/rules/Final-Rules.pdf    (last visited Dec. 12, 2006) [hereinafter EDWARDS AQUIFER
AUTHORITYRULES]. Under the Authority’s rules, the amount of water that the Authority

                 may permit to be withdrawn on an unintermptible basis as senior
                 rights pursuant to initial regular permits shall not exceed 450,000
                 acre-feet for each calendar year under the following Aquifer
                 conditions:

                         (1) for wells in the San Antonio Pool,     the water level of
                 the Aquifer +s measured at well J-17 is equal to or greater than 650
                 feet above mean sea level;

                        (2) for wells in the Uvalde Pool,       the water level of the
                 Aquifer as measured at well J-27 is equal to or greater than 845 feet
                 above mean sea level.

Id. 5 7 11.164(a); cf Act $ 1.14(f), at 2360 (authorizing the Authority to allow withdrawals from the
San Antonio pool if the water level at well J-17 is equal to or greater than 650 feet above mean sea
level or from the Uvalde pool if the water level at well J-27 is equal to or greater than 845 feet above
mean sea level). In some cases, the senior rights “fell below the statutory minimum provided in
Section 1.16(e) of the Act.” Request Letter, supra note 2, at 2.

         To address the fact that some of the allotted senior rights fell below the withdrawal amounts
that the fourth and fifth sentences of section 1.16(e) set out, the Authority granted permit holders
interruptible, or “junior,” rights that make up the difference between the statutory minimum and the
proportionally reduced amount. See FACT SHEETON SENIOR AND JUNIOR AMOUNTS, sugra note 12;
see EDWARDSAQUIFER AUTHOXUTY             RULES $5 702.1(b)(35)-(36), 711.164, ,176. A junior-rights
holder with a well in the San Antonio Pool may withdraw water under the junior rights “whenever
the water level of the Aquifer as measured at well J-17 is greater than 665 feet above mean sea
level”; ajunior-rights holder with a well in the Uvalde Pool may exercise the junior rights “whenever
the water level of the Aquifer as measured at well J-27 is greater than 865 feet above mean sea


      ‘zE~~~~A~~~~~~A~~~~~~~,   FACTSHEET:UN~TERRUPTI~LEC’SENIOR”)ANDINTERRUPTIBLEC‘JUNIOR”)
AUTHORIZEDAMOUNTS,AND INITIALREGULARPEFGWTS(Jan. 4, 2006), available af http:l/www.edwardsaquifer.org
/pdfs/fact%20SheetsRinterruptible%20and%2Ointe~uptib~e%2Oamounts.pdf(last           visitedDec. 12,2006) [hereinafter
FACTSHEETON SENIORAND JCNORAMOUNTS].


         “The term “uninte~uptible” is a misnomer; senior rights may, in fact, be reduced, but “only when the Authority
declares a stage ofthe Demand Management/Critical Period Management Rules to be in effect.” Id.; see also Act 5 1.26,
at 2363-64 (providing for a critical period management plan).
The Honorable Harvey Hilderbran      - Page 8         (GA-0498)




 level.” EDWARDS AQUIFERAUTHORITYRULES5 715.504(b)-(c). Thus, for example, an irrigation
user whose senior rights allow the withdrawal of 1.6 acre,feet per year may be provided with
junior rights allowing the user to withdraw an additional 0.4 acre-feet per year, bringing the total
withdrawal amount allowed under the permit to 2 acre-feet of water per year (assuming the
relevant well level is high enough), the number set out in section l.l6(e)‘s fourth sentence. See id.
 5 711,176(b)(6).

III.    Analysis

        Based on the Authority’s actions, you pose three questions:

                        1) Is the [Authority] statutorily authorized to reduce the
               uninterruptible groundwaterwithdrawal     rights ofpermit holders to an
               amount that is below their statutory minimum as provided in Section
               1.16(e) of the Act?

                       2) Does the [Authority] have the statutory authority to issue
               a type of permit that contains interruptible “junior” withdrawal rights
               which are not specifically authorized or included m the types of
               permits authorized by the [Authority’s] enabling legislation?

                       3) If the [Authority] can reduce permit holders to amounts
                below their statutory minimums, should these permit holders receive
                compensation?

Request Letter, supra note 2, at 2. Your third question raises an issue implicated in pending
litigation. See Plaintiffs Original Petition for Review and Suit for Declaratory Relief and Inverse
Condemnation, 777 Operating Co. v. Edwards Aquifer Auth., No. 05-lo-17660-CV (38th Dist. Ct.
Oct. 27,2005). This office typically does not issue an opinion on a question that we know to,be the
subject of pending litigation. See Tex. Att’y Gen. Op. No. GA-0399 (2006) at 3 n.5. Consequently,
we do not answer your third question,

         In examining your remaining questions, we recognizethat the Authority “may exercise only
such powers” as the Legislature has expressly delegated to it “or which exist by clear and
unquestioned implication.” T&City Fresh Water Supply Dist. No. 2 v. Mann, 142 S.W.2d 945,946
(Tex. 1940); accord Hurlingen Irrigation Dist. Cameron County No. 1 v. CaprockCommc ‘ns Corp.,
49 S.W.3d 520,536 (Tex. App.-Corpus        Christi 2001, pet. denied); see also Tex. Att’y Gen. Op.
No. GA-0284 (2004) at 3 (limiting the powers of a waterway,and navigation district to only those
delegated by statute). On the other hand, a court will give “some deference” to an administrative
agency’s reasonable construction of an ambiguous statute that the agency is charged with enforcing.
Fiess Y. State Farm Lloyds, 202 S.W.3d 744,747 (Tex. 2006); see also Act § 1.1 l(a)-(c), at 2358
(delegating enforcement powers to the Authority).
The Honorable Harvey fiilderbran     - Page 9           (GA-0498)




        A.   Whether the Authority may reduce groundwater withdrawal             rights to an amount
             below a statutory minimum

         Section 1.16(e) provides permits for four types of users: an existing user, a user without
historical use for a full year, an irrigation user, and an averager. See Act 5 1.16(e), at 2361. Your
question requires us to consider whether, in light of the facts as we have assumed them, the
Authority reasonably has determined that users whose withdrawal amounts are set in accordance
with the fourth and fifth sentences of section 1.16(e)-irrigation    users and averagers-are    subject
to proportional reduction.

        The Texas Supreme Court twice has stated that,irrigation users and averagers are not subject
to a “downward adjustment” under section 1.16(e) if insufficient water is available. Burshop, 925
S.W.2d at 624 n.2; Bragg v. Edwards Aqu$r Auth., 71 S.W.3d 729, 73 1 (Tex. 2002): In a 1996
case, Barshop v. Medina County Underground Water Conservation District, the court summarized
section 1.16(e):

                         The Act entitles an existing user to a permit for an amount of
                water equal to the user’s maximum beneficial use of water during any
                one calendar year of the historical period, unless the sum-total
                amount of such use tbroughoutthe aquifer exceeds 450,000 acre-feet.
                If this occurs, the Authority is required to adjust proportionately the
                amount of water authorized for withdrawal under the permits to meet
                the cap.

Barshop, 925 S.W.2d at 624 (citations and footnote omitted). In a footnote following this summary,
the court states that “[a]n existing user can avoid this downward adjustment” in two circumstances:

                First, an existing user who has operated a well for three or more years
                during the historical period shall receive a permit for at least the
                average amount of water withdrawn annually during the historical
                period. Second, an existing irrigation user shall receive a permit for
                not less tbantwo acre-feet a year (approximately 650,000 gallons) for
                each acre of land the user actually irrigated in any one calendar year
                during the historical period.

Id. at 624 n.2 (citations omitted). The court in 2002 repeated the footnote’s substance in Bragg v.
Edwards Aquifer Authority. See Bragg, 71 S.W.3d at 73 l-32.

        Given the court’s interpretation, we must conclude that the Act unambiguously precludes the
Authority from reducing withdrawal amounts for irrigation users below “two acre-feet a year for
each acre of land the user actually irrigated in any one calendar year during the historical period.”
Act $ 1,16(e), at 2361. Likewise, the Authority may not reduce averagers’ withdrawal amounts
below “the average amount of water withdrawn annually during the historical period.” Id. The
Authority’s construction, which is inconsistent with the Texas Supreme Court’s express statement,
is thus unreasonable.
The Honorable Harvey Hilderbran      - Page 10         (GA-0498)




       B.    Whether the Authority may issue a type of permit that contains interruptible
             “junior” withdrawal rights

         You next ask about the Authority’s power to issue a permit granting interruptible “junior”
withdrawal rights. See Request Letter, supra note 2, at 2. Your letter notes that the Act does not
specifically authorize such withdrawal rights. See id.

        The Authority contends that the junior/senior rules aid in reconciling the 450,000 acre-feet
withdrawal cap with the minimums articulated in section 1.16(e) of the Act. See Authority Brief,
supra note 11, at 12. Moreover, the Authority suggests that its construction of the Act is reasonable
and is therefore entitled to deference. See id. at 6-7.

         The Legislature did not provide any authority in the Act generally for issuing permits with
interruptible withdrawal rights unless the permits are term permits. The Act permits the Authority
to issue “interruptible term permits for withdrawal” for a term not to exceed ten years. See Act
 5 1,19(a), at 2362. Term permit holders may not withdraw water from the San Antonio pool unless
the aquifer level is higher than 665 feet above sea level or from the Uvalde pool unless the aquifer
level is higher than 865 feet above sea level. See id. 5 1.19(b)-(c). While the conditions on the
junior permits state the same aquifer levels as the Act sets for term permits, the Authority does not
refer to the junior permits as term permits, and we have no information that the permits’ terms are
limited to ten years or less, as term permits are required to be.

         Moreover, the Act sets out a detailed permit system that provides for three types of
permits-regular,   term, and emergency. See id. 5s 1.16, .18, .19, .20, at 2361-62. Giventhe Act’s
detailed scheme, we cannot find that the Act “clearly grant[s]” the Authority power to create a new
type ofregular permit. See Tri-City Fresh Water Supply Dist. No. 2,142 S.W.2d at 948; accordSo.
Plains Lamesa R.R. v. High Plains Underground Water Conservation Dist. No. I, 52 S.W.3d 770,
779 (Tex. App.-Amarillo      2001, no pet.); Lower Nueces River Water Supply Dist. v. Cartwright,
274 S.W.2d 199, 207 (Tex. Civ. App.-San        Antonio 1954, writ ref d n.r.e.); cJ: Quincy Lee Co. v.
Loda & Bain Eng’rs, Inc., 602 S.W.2d 262,264 (Tex. 1980) (stating that the Baytield Public Utility
District may exercise no authority that the Legislature has not clearly granted). Nor does anything
in chapter 36 or 5 1 of the Water Code authorize the Authority to create a new type of permit. See
TEX. WATER CODE ANN. @ 36.101(a), .113(a), .114(a), 51.122 (Vernon Supp. 2006), 5 51.127
(Vernon 2000); see also Act 3 1.08(a), at 2356 (providing the Authority with powers granted under
chapters 36 and ,51 of the Water Code). Lacking a clear grant of authority, we must conclude that
the Authority has no statutory authority to issue a type of regular permit that contains interruptible
junior withdrawal rights, and its construction to the contrary is unreasonable.
The Honorable Harvey Hilderbran     - Page 11        (GA-0498)




                                       SUMMARY

                        The Texas Legislature has not authorized the Edwards Aquifer
               Authority to reduce the withdrawal rights of irrigation users and
               averagers, who have received permits under section 1.16(e), sentences
               4 and 5 of the Authority’s enabling act. See Act of May 30, 1993,
               73d Leg., R.S., ch. 626, 3 1.16(e), 1993 Tex. Gen. Laws 2350,2361.
               The Legislature also has not authorized the Authority to issue
               interruptible junior withdrawal rights.




KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
