Mr. Charles D. Travis           Opinion No. JR-1190
Executive Director
Texas Parks and Wildlife        Re: Exemption of lessees of
  Department                    the General band Office from
4200 Smith School Road          the permitting   requirements
Austin, Texas 78744             for removal of sand, shell,
                                gravel, or marl within state
                                tidewater limits    (RQ-1910)

Dear Mr. Travis:

     Parks and Wildlife Code sections 86.001 and 86.002(a)
make provisions with respect to the authority of the Parks
and Wildlife Commission  to manage and control marl, sand,
gravel, shell, and mudshell.  Section 86.001 provides:

           The commission shall manage, control, and
        protect marl and sand of commercial value
        and all gravel, shell, and mudshell   located
        within the tidewater   limits of the state,
        and on islands within those limits,       and
        within the freshwater areas of the state not
        embraced by a survey of private land, and on
        islands within those areas.

Section 86.002(a) provides:

           No person may disturb or take marl, sand,
        gravel,   shell,  or   mudshell   under    the
        management and protection  of the commission
        or operate in or disturb any oyster bed or
        fishing water for any purpose other than that
        necessarv   or incidental to naviaation     or
        dredaina under state or federal authority
        without first having acquired from the com-
        mission a permit authorizing the activity.
        (Emphasis added.)

See also Parks & Wild. Cdde § 11.001(l) (defining ‘commis-
sion' as used in sections 86.001 and 86,.002 as the Parks and
Wildlife Commission).




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     You ask whether  a certain holder  of an easement  from
the School Land Board must obtain from the commission    the
permit required by section 86ti021;; ie,z;z;t to conduct
dredging operations  pursuant                    .  A brief
submitted by the General Land Office in connection with your
request describes the situation that prompted your request
as follows:

        On May 9, 1989, the School Land Board pur-
        suant to Chapter 33 of the Texas Natural
        Resources Code granted to Done Star Agua-
        culture, Inc. a coastal easement      for the
        installation on  submerged  permanent   school
        fund land in Matagorda Bay of a buried water
        intake pipe to supply seawater to an uplt;:
        aguaculture facility.   Lone Star owns
        leasehold estate in the adjoining     littoral
        property, which is permanent school fund land
        leased to Done Star under Chapter 51 of the
        Texas Natural Resources Code. As an incident
        of installation of the pipe as authorized   in
        the easement, it was necessary for Done Star
        to dredge the bay bottom. Lone Star is not
        removing any sand, shell, gravel or marl   for
        sale or for any other purpose and is re-
        placing the sand, shell, gravel and marl over
        the pipeline once constructed.

           . . . .

        The School Land Board and the General     Land
        Office contend . . . that since the dredging
        was conducted pursuant to state authority   (a
        School Land Board coastal easement granted
        pursuant  to Chapter    33 of the     Natural
        Resources  Code), the easement holder       is
        exempt, pursuant to Section 86.002(a) of the
        Parks and Wildlife    Code, from having to
        obtain a Chapter 86 sand, gravel, and marl
        permit.

     We discern the focus of your inquiry to be whether  the
disturbance of marl, sand, gravel, shell, and mudshell
necessary or incidental to dredging operations    under the
easement in question would be %ecessary    or incidental  to
navigation or dredging under state or federal authority"
within the meaning of section 86.002(a) and thus exempt from
the sectionfs requirement   of a permit  from the Parks and
Wildlife Commission.

     The School Land Board is an executive agency of     the
state. Nat. Res. Code 5 33.011. It is composed    of     the



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commissioner of the General Land Office and appointees    of
the governor and the attorney general,   and is assisted  in
the performance of its duties by the staff of the General
Land Office.    I&    55 32.012, 33.012, 33.013,     33.051.
Section 33.111(a) of the Natural Resources Code provides:

           The board may grant easement rights to the
        owner of adjacent littoral property authoriz-
        ing the placement or location of a structure
        on coastal public land for purposes connected
        with the ownership of littoral property.

The brief submitted by the General Land Office    indicates
that the easement holder    in question  is an "owner of
adjacent littoral property"  within the meaning of section
33.111 by virtue of a leasehold interest acquired from the
General Land Office under chapter 51 of the         Natural
Resources Code.

     It would also appear that the granting of the easement
from the School Land Board for "dredging on submerged  state
land for the installation of a water intake pipe to supply
water to an aguaculture facility," as recited in the copy of
the easement document you attached to your request,       is
within the School Land Board's authority under section
33.111 for granting easements     for the qqlocation. of a
structure on coastal public land for purposes connected with
the ownership  of littoral property."      (Emphasis added.)
"Structure" as  used  in chapter 33  is defined   in section
33.004(10) of the Natural Resources     Code to mean    "any
structure, work, or improvement constructed on, affixed to,
or worked on coastal public land, including . . . excava-
tions.n

     We conclude  in response to the question you present
that the holder of such easement is not required under Parks
and Wildlife Code section 86.002(a) to obtain a permit   from
the Parks and Wildlife  Commission for its disturbances   to,
or taking of, marl, sand, gravel, shell, or mudshell   neces-
sary or incidental to its dredging operations for installa-
tion of the water intake pipe pursuant to its easement    for
said operations granted by the School Land Board.

     The Texas Supreme Court in Amdel Piveline v. State of
a,     541 S.W.Zd 821 (Tex. 1976) considered the provisions
of section 86.002(a) in connection with whether a holder of
a permit from the United States Army Corps of Engineers   for
dredging for  navigational   purposes in  the  Neches   River
Channel, a federal navigation project, was required        to
obtain a permit from the Parks and Wildlife Commission.   The
court noted that the provisions of section 86.002(a) had not
changed substantially   since their original enactment     in



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1911.    541 S.W.Zd at 824, 825; see Acts 1911, 32d Deg.,    ch.
68.1

     The court in &k&8& held that the dredging operations by
the company, performed pursuant to its permit from the Army
Corps of Engineers,  were ones %ecessary    or incidental  to
navigation under . . . federal authority" within the meaning
of section 86.002(a) and thus exempt from the section's
permit requirement.  We think that a court would similarly
find that disturbances of marl, sand, gravel, shell, and
mudshell by the easement holder in question here are exempt
from said permit requirement if in fact the disturbances are
necessary or incidental to its dredging operations   pursuant
to its easement from the School Land Board.

     The &mdd court recognized,   and the parties appear to
have agreed, that the company's     operations  were   "under
federal authority"  within the meaning of section 86.002(a).
m   &mdel,  at 826. In the present case, we think the
easement holder's operations, pursuant to its easement   from
the School Land Board, would be found by a court to be
"under state authority" within the meaning of that section.

     The Corps of Engineers permittee in &ndeL held a permit
for dredging for navigational purposes.  We do not think the
fact that the School Land Board easement holder's   easement
is for dredging fore non-navigational purposes takes it out
of the section 86.002(a) exception.   The exception is for
"navigation pi dredging under federal or state authority."
Webster's defines  "dredge" to mean "dig, gather, or pull
out" and "to deepen      (as a waterway with a      dredging



     1. The Amdel court traced the section 86.002(a) permit
requirement  exception  for navigation   or dredging    under
federal or state authority to a penal provision of the 1911
act. The court stated, however, that it did not construe
the provision "to have the isolated effect of telling us
whom [sic] shall suffer penal sanctions."      541 S.W.2d at
826.

        The caption of the 1911 Act refers to 'penalties
        for the violation of this Act' -- indicating  that
        there is no violation of any part of the Act where
        one, who removes marl and sand, does so in the
        course of operations that are necessary or inci-
        dent   to navigation or    dredging under state or
        federal authority.




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machine)."  Webster's  Ninth New Colleaiate Dictionary   382
(1985). The ordinary meaning of dredging does not appear to
be limited to dredging for navigational purposes. We do not
think the legislature would have used the disjunctive   lVor*'
in the phrase "navigation or dredging" had it intended the
exception to apply only to operations      for navigational
purposes.

     Our conclusion here is supported by Attorney    General
Opinion M-84 (1967), cited with approval in &@&     at 826.
In responding to the question whether the Parks and Wildlife
Department had "authority to regulate or limit disturbances
in submerged land areas leased by the School Land Board to
individuals," the opinion stated that the Parks and Wildlife
Department had authority to manage, control, and protect all
marl, sand, gravel, shell, and mudshell within the areas
defined by V.T.C.S. article 4051 (now section 86.001 of the
Parks and Wildlife Code), with the exception of

        the marl, sand,  [etc.], . . . that are dis-
        turbed for an authorized navigational     pur-
        pose . , . or being disturbed by a lessee of
        the School Land Board in carrying out the
        purpose of the lease (whether for oil or
        production or other commercial or industrqz?
        use) and which disturbance of the marl, etc.
        is incidental to such purposes and reasonably
        necessary in carrying out such purposes.2

Attorney General Opinion M-84, at 6. We think the fact that
the operations here are performed pursuant   to an easement
from the School Land Board rather than a lease, as in
Attorney General Opinion M-84, does not make the operations
any the less "under state authority" within the meaning   of
section 86.002(a).  See also Attorney General Opinions  c-90
(1963) (submerged land leased for oil and gas development);
WW-150 (1957) (disturbances on submerged land patented to a
navigation district).



        2. This conclusion  of Attorney   General Opinion M-84
was based on a reading of the provisions then found in
article 976 of the Penal Code.          Those provisions  were
incorporated without substantive change in the Parks and
Wildlife Code in 1975, as section 86.002. Acts 1975, 64th
Leg., ch. 545,   5 1, at 1405. In 1985, specification as to
the penalties for violating the provisions of section 86.002
were taken out of section 86.002        and-placed  in section
86.020.     Acts 1985, 69th Deg., ch. 267, art. 3, § 107, at
1294.




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Mr. Charles D. Travis - Page 6     (JM-1190)




     You point in your brief to the provisions of section
33.005(a) of the Natural Resources Code, which provides:

           This subchapter    does   not repeal   the
        following provisions of the Parks and Wild-
        life Code:   Chapters 83 and 86, Subchapter A
        of Chapter 46, Subchapter A of Chapter     76,
        Subchapter D of Chapter 76, Subchapter B of
        Chapter  81, Subchapter    G of Chapter    82,
        Subchapter C of Chapter     216, or Sections
        66.101, 66.107,     66.112   through  66.118,
        66.205, 76.031 through 76.036, 78.001 through
        78.003, 81.002, 136.047, 184.024, 201.015, or
        335.025.

     Apart from the fact that the provisions     of section
33.111 of the Natural Resources Code authorizing the School
Land Board to grant easement rights in coastal lands appear
in subchapter D of chapter 33 while section 33.005(a) refers
to subchapter  A as effecting no repeal of, inter aliq
chapter 86 of the Parks and Wildlife Code, we also note tha;
our construction  here of section 33.111 of the Natural
Resources Code, with those of section 86.002(a) of the Parks
and Wildlife Code, works no llrepeal" of the latter provi-
sions.   Our construction   rather   gives effect to     the
provision of section 86.002(a) that "navigation or dredging
under federal or state authority"    is excepted  from that
section's permit requirement.

     You also argue in your brief that finding the easement
holder's  operations   here to    fall within the     section
86.002(a) exception would   "allow the exception to swallow
the rule." You say that virtually all of the activities
subject to regulation under chapter 86 currently require a
permit from the United States Army Corps of Engineers   under
section 404 of the Clean Water Act, 33 U.S.C. § 1344.      We
caution that we do not address here whether holders        of
section 404 permits or other authorization     permits would
fall within the section 86.002(a) exception for **navigation
or dredging under federal or state authority," but confine
our opinion here to the facts presented.   We note,  however,
that prior to the adoption of the predecessor provisions   of
section 86.002 in 1911, the public was free generally      to
disturb or remove bottom materials from coastal public   land
without supervision.    &8 Goar v. Citv of Rosenberg      115
S.W. 653 (Tex. Civ. App. 1909, no writ): Attorney     G&era1
Opinion WW-151   (1957).   It is possible that since 1911
federal and state regulation over coastal lands has grown to
the point where anyone removing or disturbing such bottom
materials must have obtained a federal-or state authoriza-
tion, therefore potentially bringing them within the section
86.002(a) exception.   However, whether the exception to the



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Mr.   Charles D. Travis - Page 7    (JM-1190)




section 86.002(a) permit requirement   for %avigation
dredging under federal or state authority" now needs to
redrawn in light of such developments is a matter for the
                                                              Ef;
legislature.

                        SUMMARY
            The holder of an easement from the School
         Land Board for dredging for installation of a
         water intake pipe on submerged state land is
         not required, under Parks and Wildlife   Code
         section 86.002(a), to obtain a permit    from
         the Parks    and Wildlife    Commission'  for
         disturbances of marl, sand, gravel, shell,
         or mudshell necessary or incidental   to its
         dredging operations  pursuant to such ease-
         ment.                           I          .



                                    L-lVery truly y



                                       JIM
                                            k,
                                               MATTOX
                                       Attorney General of Texas

MARYEELLER
First Assistant Attorney General

MU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General




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