The Honorable Hugh C. Yantis, Jr.   Opinion No. H- 805
Executive Director
Texas Water Quality Board           He: Does the Water
P. 0. Box 13246, Capitol Station    Quality Board have the
Austin, Texas   78711               power to set water quality
                                    standards for waters
                                    occupying privately owned
                                    beds and to prevent waete
                                    discharges from entering
                                    privately owned beds?
Dear Mr. Yantis:
     We do not resolve disputed questions of fact, and for
purposes of this opinion, we assume, but do not decide, that
the following explanation y,oufurnish is correct:
          The Brownsville Navigation District,
          upon adequate authority, applied to the
          Water Quality Board for a permit
          to discharge an average of one million
          gallons of waste per day from the pro-
          posed Fishing Harbor sewage treatment
          plant to be located adjacent to the
          Brownsville Ship Channel. The discharge,
          however, will originally be made into San
          Martin Lake, which is about 3,500 acres
          in size. The lake, which connects with
          the Brownsville Ship Channel, occupies
          a bed owned by the District in large part,
          and in part by several private parties.




                         p. 3396
The Honorable Hugh C. Yantis, Jr. - page 2 (H-809


     In this context, you ask:
          Does the Water Quality Board's authority
          to set water quality standards for the
          water in the state and to issue permits
          authorizing waste discharges into waters
          in the state extend to the waters occupy-
          ing privately-owned beds which connect
          with public waterways, and to discharges
          entering the waters in such privately-owned
          beds.
     The navigation district agrees that the Texas Water
Quality Board may regulate the discharge of wastes into the
Brownsville Ship Channel from San Martin Lake, but contends
that it has no authority to regulate the discharge of wastes
into San Martin Lake because the lake is private property.
In this case the private lake connects with a public waterway.
Accordingly, it is necessary to address only that situation,
and we need not discuss the authority of the Board to regulate
water quality for bodies of water located on private property
and which are not connected in any way with a public waterway.
         Prior to the enactment of th'eTexas Water Quality Act
of 1967, article 7621d-1, V.T.C.S., the water pollution
regulatory laws of the state clearly applied only to public
waters and not to private waters and private water beds.
V.T.C.S.
.___ -.-.    art.
             ~~~.. 4444
                   ~~   (renealed): Penal Code, art. 698b (re-
pealed); Turner v. &Lake        bil Co., 96 SiW.2d 221 (Tex.Sup.
1936), affirming-Turner v. CL=           Oil Co., 62 S.W.Zd 491
 (Tex.Civ.App. -- El Pasoy9331; m         of Weslaco v. Turner,
237 S.W.2d 635 (Tex.Civ.App. -- + ace rP51, writ FZf. n.r.e.).
Percolatinq and surface waters were declared to be "private"
and not "public" waters. Turner v.




     The Texas Water Quality Act of 1967 departed from the
pattern of previous acts by defining "water" subject to
regulation in terms which now substantially appear in section
21.003(3) of the Water Code:




                           P. 3397
The Honorable Hugh C. Yantis, Jr. - page 3 (~-805)


             'Water' or 'water in the state' means

         springs, rivers, streams, creeks, estuaries,
         marshes, inlets, canals, the Gulf of Mexico
         inside the teritorial limits of the state,
         and all other bodies of surface water,
         natus   or artml,inland       or coastal,
         fresh orsalt, navigable or nonnavigable,
         and including the beds and banks of all
         watercourses and bodies of surface water,
         that are wholly or partially inside or
         bordering the state or inside the juris-
         diction of the state. (Emphasis added).
The word "public" is notably absent, and previously unregu-
lated percolating and surface waters are expressly included
in the definition.

     Section 21.251 of the Water Code specifies:
          (a) Except as authorized by a rule, regu-
          lation, permit, or other order issued by
          the board, or the executive director when
          authorized by the board, no person may:
               (1) discharge oewage, municipal waste,
               recreational waste, agricultural waste,
               or industrial waste into or adjacent
               to any water in the state;
               (2) discharge other waste into or
               adjacent to any water in the state which
               in itself, or in conjunction with any
               other discharge or activity, causes,
               continues to cause, or will cause pollu-
               tion of any of the water in the state; or
              (3) commit any other act or engage in any
              other activity, which in itself, or in
              conjunction with any other discharge or
              activity, causes, continues to cause, or
              will cause pollution of any of the water
              in the state, unless the activity is under




                              p. 3398
.   .   -




            The Honorable Hugh C. Yantie, Jr. - page 4 (M-805)


                          the jurisdiction of the Parks and Wildlife
                          Department, the General Land Office, or
                          the Texas Railroad Commission, in which
                          case this Subdivision (3) does not apply.
                     (b) In the enforcement of Subdivisions
                     (2) and (3) of Subsection (a) of this
                     section, consideration shall be given to
                     the state of existing technology, economic
                     feasibility, and the water quality needs
                     of the waters that might be affected.

                     (c) No person may cause, suffer, allow,
                     or permit the discharge of any waste or
                     the performance of any activity in viola-
                     tion of this chapter or of any rule,
                     regulation, permit, or other order of
                     the board.
                 We are of the opinion that this statute applies to the
            discharge of wastes into San Martin Lake. The bed of the
            lake, even though it may be privately owned, connects with
            the Brownsville Ship Channel. Water connected with a public
            waterway may be public, although it occupies private land.
            Diversion Lake Club v. Heath, 86 S.W.2d 441 (Tex. Sup. 1935);
            Attorney GeneralOpizonH;68    (1973). See also Coastal Indus-
            trial Water Authorit
            7?ZJ7X)~eZiZ-&o?tE%tZ              TZXSa%&Z      EE'i~Er-
            mittently is separated from the Channel so that at times it
            might be characterized as private water, we belleve it is
            within the present statutory deflnltron of water subject to
            reasonable regulation by the Texas Water Quality Board. Cf.
            Amerrcan Plant Food Corporation v . State, 508 S.W.2d 598 -
             (Tex. Grim, App.74).
                 In our opinion, the Water Quality Board does have valid
            statutory power to set reasonable water quality standards
            for waters in this state occupying privately owned beds which
            connect with public waterways, and to prevent harmful waste
            discharges from entering the waters of such prrvately owned
            beds, including San Marten Lake. See Attorney General
            Opinion H-64 (1973). We do not dene    whether the proposed
            regulations sought to be imposed with respect to San Martin
            Lake are reasonable.




                                     P. 3399
    --   -
-




         The Honorable Hugh C. Yantis, Jr. - page 5          (H-805)


                                 SUMMARY
                     The Water Quality Board has the power
                     to set reasonable water quality standards
                     for waters in this state occupying privately
                     owned beds which connect with public waterways,
                     and to prevent harmful waste discharges from
                     entering the water in such privately owned
                     beds.
                                           Ver   truly zyd

                                           &
                                           62HN L. HILL
                                           Attorney General of Texas
         APPROVED:




         Opinion Committee
         jwb




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