                            OF     TEXAS
                       AUSTIN.     Tncz+as      78711
                                                         ,----.----               _




The Honorable Hugh C. Yantia,Jr.
Executive Director
Texas Water Quality Board                         Re: Authority bf cities to estab-
314 W. 11th Street                                lish water pollution con&L
Austin,  Texas 78701                              programs   under 5 21.357, Texas
                                                  Water Code
Dear Mr.   Yantis:

      You have asked three questions      which relate    to   § 21.357,   Texu   Water
Code.  That eection provides:

                   .“(a) Every city in thjr rtate having a population
            of 5,000 or more inhabitants shall, and any city of
            this state may, establirh a water pollution control
            and abatement program for the city.        The city ohall
            employ or retain an adequate number of personnel, on
            either a part-time    or full-time  basis as the needs and
            circumetances     of the city may require,   who by virtue
            of their training or experience    are qualified to perform
            the water pollution control and abatement functions
            required to enable the city to carry out its duties and
            responsibilities   under this section.

                    l!(b) The water pollution control and abatement
            program of a city shall encompass         the entire city and
            may include areas within its extraterritorial        jurisdic-
            tion which in the judgment of the city should be included
            to enable the city to achieve&e      objectives   of the city for
            the area within its territorial jurisdiction.      The city ahall
            include in the program the services        and functions which,
            in the judgment of the city or as may be reasonably            re-
            quired by the board, will provide effective water pollu-
            tion control and abatement for the city, including the
            following services    and functions:




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         The Honorable      Hugh C. Yantia,     Jr.,     page 2   (H-304)




                                     “(1) the development   and maintenance     of an
                              inventory of a11 significant waste discharges      into
                              or adjacent to the water within the city and, where
                              the city so elects,   within the extraterritorial   juris-
                              diction of the city, without regard to whether or
                              not the discharges    are authorized by the board:

                                    “(2) the regular monitoring     of all significant
                              waste discharges   included in the inventory prepared
                              pursuant to Subdivision   (1) of this subs’ection:

                                     “(3) the collecting    of samples and the conduct-
                              ing of periodic   inspections    and tests of the waste
                              discharges   being monit0re.d to determine whether
                              the discharges    are being conducted in compliance
                              with this chapter    and any applicable    permits,  orders
                              or regulations    of the board, and whether they should
                              be covered by a permit from the board;

                                     “(4) in cooperation    with the board, a procedure
                              for obtaining compliance      by the waste dischargerr
                              being monitored,     including where necessary     the use
                              of legal enforcement     proceedings;   and

                                      “(5) the development   and execution of reason-
                              able and realistic    plans for controlling and abating
                              pollution’ or potential pollution resulting from gener-
                              alized discharges     of waste which are not traceable
                              to a specific   source,   such a,s storm sewer discharges
                              and urban r’unoff from rainwater. ”

               Your first    two questions    are:

                     “Fiqet,    does Section 21.357 of the Texas Water Code
                     confer upon cities of this state any powers which are
                     not otherwise    given them by law?   Second, does this
                     section give cities any power to control activities     out-
                     side of the city limits but within the extraterritorial
                     jurirdiction   of these cities? ”




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                  The Honorable     Hugh C. Yantir,     Jr.,    page 3 ’ (H-304)




                           Although it is clear that there are other source0 of power for a city’s
                  exercise     of some of the duties outlined in 5~216357, both within the city
                  limits,    and within the city’s extraterritorial     jurisdiction,  e.,g. ; $ 5 21.351,
                  21.353 and 21.354,         Texas Water Code; Articlea     970a, 1015 and 1175. Vernon’s
                  Texas Civil Statutes; Swinney v. City of San Antonio, ~483 S. W. 2d 556 (Tex.
                  Civ. App. , San Antonio,        1971, no writ), we believe a city’s authority is not
                  necessarily       limited to those statutes.    Whatever authority is necessary         to
                  perform the actions permitted or required under 5 21.357 is necessarily
                  implied whether nor not that authority may .be granted independently               by other
                  statutes.     cf., Davis v. City of Taylor,     67 S. W. 2d 1033 ~(Tex. 1934); Foster
                  v. City of Waco, 255 S. W. 1104 (Tex. 1923); Hayden v. City of Houston, 305
                  S. W. 2d 798 ,(Tex.~Civ.App.,         Fort Woith, 1957, writ ref’d,     n. r. e.).    Of
                  course,     a city’s authority would not extend to the point of setting water quality
                  standards.        $ § 21.006,  21.075, 21. 257, Texas Water Code.

                         Therefore,    in answer to your firat and second questions,   it is our
                  opinion that, irre,spective   of the power conferred  by other statutes, a city
                  may exercise     the power necessary    to perform the activities permitted and
                  required by s 21.357 of the Water Code.

                         Your   third question   is:

                                “Can this section be relied upon by cities to furnish a
                                basis for the regulation of private sewage facilities?       If
                                so, by use of this authority can cities use the power
                                conferred     by Section 21.357 to regulate private sewage
                                facilities   located outside the city limits,   but within the
                                extraterritorial    jurisdiction of the city? ”

                         You indicate that your question is prompted by a belief that 5 $ 21.083
                  and 21.084,  Texas Water Code, provide an exclusive      means of regulating pri-
                  vate sewage facilities.   Section 21.083.creates a means of regulation by the
                  board.   A public hearing is required as is consultation  with the State Commis-
                  eloner oi Health.    The Board ie permitted to establish a licensing system and
                  may delegate the licensing function to local governments.     Section 21.084 gives
                  similar authority to counties.




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The Honorable   Hugh C. Yantis,     Jr.,    page 4   (H-3041




       Our analysis of your first two questions    requires an affirmative
response   to your third inquiry.   The authority given cities under $21.357
and other statutes is sufficiently   broad to permit regulation of private
sewage facilities.    Sections 21.083 and 21.084 do nQt expressly    prohibit
local regulation.   ct., Swinney v. Citv of San Antonio,    supra.

                                    SUMMARY

                    A city has broad powers to establish water
            pollution control programs       under 5 21.357, Texas
            Water Code.      These powers can include regulation
            of private sewage facilities     in thd .oity and in its
            extraterritorial   jurisdiction.

                                                  Vqry truly yours,




DAVID M. KENDALL,        Chairman
Opinion Committee




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