The Honorable Bill Sullivant         Opinion No. Ii-802
Chairman
House Committee on Environmental     Re: Whether the Water
     Affairs                         Quality Board is permitted
P. 0. Box 2910                       or required to perform
Austin, Texas 78767                  land use planning and
                                     condition the granting of
                                     permits'on compliance
                                     with land .use regulations.
Dear Chairman Sullivant:
     you have requested our opinion regarding the authority
of the Texas Water Quality Board with respect to land use
planning. Specifically, you ask:
          To whatextent does the Texas Water
          Quality Board's authority allow [or]
          require the Board to perform land ruse
          planning and to condition the granting
          of permits to point or non-point'sources
          of watertiontaminants on proper site
          selection and on compliance with land
          use divisions and regulations set by
          the Board7
     The author'ityof the Texas Water'Quality Board is
derived from three statutes:~ the Texas Water Quality Act,
Water Code,                          the Disposal Well Act, Water
Code, section                      the Solid Waste Disposal Act,
article                             Water Quality Act, by
which the Water Development Board was created, provides:




                           p. 3383
The Honorable Bill Sullivant - page 2   (H-802)


            The board shall administer the pro-
         visions of this chapter and shall estab-
         lish the level of quality to be maintained
         in, and shall control the quality of, the
         water in this state as provided by this
         chapter. Waste discharges or impending
         waste discharges covered by the provisions
         of this chapter are subject to reasonable
         rules, regulations, or orders adopted or
         issued by the board in the public interest.
         The board has the powers and duties specifi-
         cally prescribed by this chapter and all
         other powers necessary or convenient to
         carry out its responsibilities. Sec. 21.061.
The Board is specifically empowered to "issue permits . . .
for the discharge of waste into or adjacent to water in the
state." Sec. 21.079. In issuing a permit, the Board is
required to
          prescribe the conditions on which it is
          issued, includinq:
          (1) the duration of the permit;
          (2) the location --
                            of the point --
                                         of dis-
          chargeof the waste;
          (3) the mxmum    quantity of waste that
          may be discharged-under the permit at
          any time and from time to time;
          (4) the character and quality of waste
          that may be discharged under the permit;
          and
           (5) any monitoring and reporting require-
          ments prescribed by the board for the
          permittee.
          Sec. 21.081.   (Emphasis added).
     You have not indicated what you believe to be embraced
within the ambit of "proper site selection" and "compliance
with land use divisions and regulations set by the Board."




                            p. 3384
The Honorable Bill Sullivant - page 3   (H-802)


Section 21.081 requires the Board, in granting permits, to
consider the five enumerated conditions, one of which is
'the location of the point of discharge of the waste."
This condition could, in a .given instance, embrace a con-
siderationas to whether there has been a "proper site
selection." The use of the term "including" preceding the
five specific conditions indicates that the Board may estab-
lish other criteria in determining whether or not to issue
permits. Federal ----
                  Land Bank of St. Paul v. Bismarck Lumber
     314 U.S. 95, 99-100 (1941); El Paso Electric Co. v.

conceptio;of "proper site selection" and "land use    divisions
and regulations" may be deemed to be "conditions on   which
[thepermit] is issued," it is our opinion that the    Board
say consider such factors in determining whether to   grant a
permit.
     Under the terms of the Disposal Well Act, the Texas
Water Quality Board is authorized to issue permits for the
drillingof disposal wells and the conversion of existing
wells into disposal wells. Water Code, S 22.011. In granting
a permit, the Board is directed to
         impose terms and conditions reasonably
         necessary to protect fresh water from
         pollution, including the necessary
         casing. Sec. 22.051(b).
Wiether proper site selection and compliance with land use
divisionsand regulations set by the Board constitute "terms
and conditions reasonably necessary to protect fresh water
from pollution" is a question of fact which we are unable to
determine. Certainly, the authority conferred upon the
Board by ,section22.051 is less clearly related to those
conditionsthan that granted by section 21.081.




                          p. 3385
The Honorable Bill Sullivant - page 4 (H-802)


     Pursuant to the Solid Waste Disposal Act, the Texas
Water Quality Board has
          the powers and duties specifically pre-
          scribed in this Act and all other powers
          necessary or convenient to carry out its
          responsibilities. V.T.C.S. art. 4477-7,
          S 3(b).
With respect to the disposal of the solid wastes over which
it has jurisdiction, the Board
          has the power to require and issue
          permits authorizing and governing the
          operation and maintenance of sites used
          for for the disposal of solid waste.
          Sec. 4(e).
Furthermore, the Board
          is authorized to inspect and approve
          sites used or proposed to be used. . . .
          Sec. 4(d).
Thus, the Solid Waste Disposal Act clearly authorizes the
Board to consider "proper site selection" in issuing its
permits. Although the Board is granted the
          authority, for good cause, after hear-
          ing and notice to the permittee and
          to the governmental entities named in
          Paragraph (1) of this Subsection (e),
          to revoke or amend any permit it issues
          for reasons pertaining to public health,
          air or water pollution, --
                                  land use, or
          violation of this Act or of any other
          applicable laws or regulations controlling
          the disposal of solid waste. Sec. 4(e) (8).
          (Emphasis added).




                            p.   3386
The Honorable Bill Sullivant - page 5 (H-802)


     The other aspect of your question inquires whether the
Texas Water Quality Board may engage in land use planning.
That term is not defined in any of the three statutes from
which the Board derives its authority. In general, "land
use planning" may be said to encompass a broad range of
activities:
         The orderly use and development of land
         is the focus of land use planning. . . .
         [Lland use planning is concerned primarily
         with the physical environment . . . .It
         deals with the location of uses. . . .The
         primary legal tools for effectuating land
         use planning include such police power
         regulations as zoning and subdivision-
         platting controls . . . . D. Hagman, Urban
         Planning &Land Development Control Law
         (1971), at 18-1.9.
As one court has stated, "land-use" involves "the types of
resulations nonnallv subsumed under zonins and nlannins
devices." South Terminal
                     , 6 8 Cor
                           (ls~.c~.EnviroNnentai Protection
Agency, 504m     646
      No statute grants to the Texas Water Quality Board any
general authority to engage in land use planning. Although
the power to enact zoning and other such regulations derives
from the police power of the state, the Legislature has
entrusted that authority to local units of government. - See
articles lOlla-1011j; article lOllm, V.T.C.S. The Board
  . -
enjoys  only such authority as is specifically 'delesatedto
it by the Legislature. Stauffer v:.San Antonio, 344 S.W.Zd
158, 160 (Tex.Sun. 1961). Absent a statutory directive
permitting the Board to-engage in zoning or any other activity
which may be characterized as "land use planning," we conclude
that the Board may not exercise general power in this area.




                          p. 3387
The Honorable Bill Sullivant - page     6   (H-802)



                       SUMMARY
            The Texas Water Quality Board has no
            general authority to engage in land use
            planning, but it possesses authority
            under the Texas Water Quality Act, the
            Solid Waste Disposal Act, and possibly
            the Disposal Well Act, to condition the
            granting of its permits to point or non-
            point sources of water contaminants upon
            proper site selection.
                                  Very truly yours,


                                  JOHN L. HILL
                                  Attorney General of Texas
APPROVED:



DAVID M. KENDALL, First Assistant



m
Opinion Committee
jwb




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