R-697


            E    7rroRNEY            GENERAL

                    0        EXAS

                   AUUTIN XI.TEXAS

                          September 10, 1947

Hon. E. V. Sperm,       Chainsan
Board of Water Euglneere
302 Went 15th Street
Au&in, Texas                   Opinion   Ho; V-372
                               Re:   Sale of stored waters
                                     by Brazos River Conser-
                                     vation and Reclamation
                                     District beyond the
                                     Brazos watershed
Dear Sir:
            Your letter of July,25,      1947,   raises   the fol-
lowing   question for our opinion:
     “Does the Brazos River Conservation and
     Raclamation District     have the power to
     sell,  deliver   or contract  to deliver
     stored water outside the Brazes River
     watershed?     Has our Board any function
     in this regard?”
              The Brazos River Conservation and Reclamation
District    was created, Acts 1929, 4lst Legislature,     2nd
cch s 4, ;iS;.vLEtSpage    22, Ch, 13, as amended.    Title 128,
                        Its boundaries are defined by a metes
 and b&nds dekGi&ion        of th8 watershed of the Brazes
River except for the counties of Freestone,       Leon, and
Madison (as smnded Acts 19.31, 1st C.S., Ch, 5, Sec. 1).
 Its powers, $n so far as they touch on the question pre-
 8ent8d, are eet out in Sectfons     2 and 3 of the Act,     Sac-
 tion 2 grants broad, general power and authorizes       the
 diatrlot   to exercise all power conferred by the COnaerVa-
 tion Aaendmnt to the Constitution,       Article XVI, Sec. 59,
 and by general law3 such,district     to have “authority    and
pow8r of control and regulation      over ouoh storm and flood
waters of the Brazes River and Its tributaries       as may be
 exercised by the State of Texas.”       Section 3 provides aa
 followa :
     “‘Sec. 3. The Brazes River Conservation
     and Reclamation District shall have and be
                                                              -   ,




HOG.   E, v.   Spence - Page 2 (No. V-372)




       aerv:tlon    and-beneficial    utilization    of
       storm, flood and unapp??oprlated flqw waters,
       the power of control and employment of such
       flood,   storm and unappropriated        flow waters
       of the raid district       la the mannerand for
       the particular     purposes hereinafter      set
       forth.
       “l(a)    To provide through the only practical
       and legal means for the control and the co-
       ordination   of the regiil8tionof the waters
       of the watershed of the Brazes River and its
       tributary   streams as a unit.
       '1 (b)    To provide by adequate organization
       and adminlstratlon     for the preservatXon of
       the equitable    rights of the people of the
       different   sections   of the watershed area in
       the beneficial    us8 of storm, flood and unap-
       propriated   flow waters of the Brazos River
       and its tributary     streams,
       “8 (c)   For stosiri,   controlling    and conserv-
       ing storm, flood and unappropriated         flow
       waters of the Brazos River and its trlbu-
       taries,  and the wevention      of the escape of
         y of such waters without>~~~_$xximum           of
                                             ---.._ _ .,r
       i&l14   servfceg   for the prevention of devas-
       tatTon 'ofX3nd~s from recurPent overflows,
       and the protection    of life and property in
       such watershed area from uncontrolled          flood
       waters.
       'r (d)    For the conservatfon  of waters essen-
       tial for the domestic uses of the people of
       the watershed of the Brazos River and its
       tributaries,   incYuding al1 necessary water
       supplies for cities    and towns*
       "t(e)   For the Irrigation       of lands In the
       watershed of the Brazos River and Its trib-
       utary streams where irrigation         is required
       for agricultural     production;    and for the
       equitable   distribution    of storm, flood and
.   -




        Ea.   E. V. Spe8W    - rage 3 (MO. V-372)


              unappropriated      flow waters to the regional
              potential     requirements for all w508. All
              plur    md all work8 provided by raid din-
              tricta,     and aa well, all worka whiah.may be
              provided     under authority   of said district
                                       regard to the necessary
              %?=veP?F
              aa potentla        no6 s for water, by or within
              the rerpeotive      area8 constituting  the water-
              ;p$z        tEe Braeos River and ite tributary
                        .
              “l(f)    For the better encouragement    and de-
              velopment of drainage systema and provlsio~
              for drainage of lands In the valleys of the
              Brazer River and its tributary     stream    need-
              lng dra%uage for profitable    agricultural    pro-
              duction;   and drainage for other lands in the
              watershed area of the district     requiring
              drainage for the most advantageous u8e.
              “1 (g)   For the purpose of conservation of
              all aoila against destructive  erosion and
              thereby preventing the lnareased flood men-
              ace incident thereto.
               “l(h)   To control and make available    for em-
               ployment flood,   storm and unappropriated   flow
               waters in the development of commercial and
               Industrial  enterprises  in al.1 sectiona of the
              ,watershed area of the district.
              “*(I)   For the control,   storing and employ-
              ment of flood,   storm and unappropriated    flow
              waters in the development and distribution       of
              hydra-electric   power, where such use may be
              economically   coordinated  with other and au-
              perlor usea, and mbordlnated      to the uses de-
              clared by law to be auperlor.

              ?&)fl~~       froE&and        everv oumo8e for
                                         upappropriated  flow
              waters when controlled     and conserved may b
              utilized   In the performance of a useful. se:-
              vice as contemplated and authorized by the
              provisions    of the constitution   and the ~ubllc
              policy   therein declared.
              ‘l’(k) Nothing    in this Act shall affect or
              repeal Articles    7496, 7500A of the 1925 Re-
              vised Statutes    of 1925 as amended by Chapter
lion, E. V, Spence - Page 4      (Nod v-372)


      128 Acts of ,the Regular    Session   of the 42nd
      Legislature."
           In our ginion   No. V-319, addressed to you, we
considered the power of the Lower Colorado River Authority
to sell stored water for irrigation    and manufacturing use
beyond its boundaries and concluded that its pxesent Act
did not confer thhis power.   The Brazes Act was cited in
the course of that oplnlon as being illustrative     of a type
of aot whiah contained no epeciflc    authorization  for sale
of waters outside the boundaries of the district.       It now
becomes necessary to construe this act to determine wheth-
er the leglslatlve   Intent therein expressed in general
terms authorizes   sales of water for use outside the dls-
trlct under certain conditiona.
            The Brazer Act and Lower Colorado       River   Act dif-
fer   in some very material respects.
           Se&ion 2 of each act sets forth certain general
powem.    Im Sectlen 2 of the Brazes Act, there la no ex-
press llm.ltatlon  upon the general powers therein set out,
The powers there granted are cumulative,      Including all pow-
em ‘contemplated and Implied by the purposes of this pro-
vision of the Constitution,    and as may be conferred by Gen-
eral Law, and the provfsions    of this Act*"     On ,the other
hand, Seotion 2 of the Colorado Act opens with the words
"Except as expoesaly limited by this Act", the District
shall have cedain    general powers.    Section 3 of the Brazoa
Act provides that the District    shall have certain specified
                                                                       v-
greatest practicable   measure of the conservation   a& bene-
ficial  utfllzation  of the storm, flood and unappropriated
flow waters of said District    in the manner and for the par-
ticular  purposes hereinafter   set forth,”
            By the terms of the Brazos Act, the part%cular
powers are granted     in addition      to the general powers,       In
the Colorado Act, the general powers are limited by the par-
ticular   powers.    In the Colorado Act, the-o              provisign
aorresponding     to subsection    (3) of Section 3 of the Brazos
Aat.    In the Colorado Act, ther8 is no provision          similar to
that of Section 4 of the Brazes Act, which provides that
the powers and duties of the Distriot          shall be "taken sub-
ject to all legislative       declarations    of public policy In
the maximumutilization        of the storm, flood atdunappropria-
ted flow waters of the Rrazos River watershed for the pur-
poses for which the District         1s crested,   8s expressed
Hon. E. V. Spence - Page 5          (Ho. V-372)


and indicated ln this        Act, and subdect to the continuing
rtghte of mpe~siou”           by the Board of Water Engineers.
           In the Colorado Aot, there 1s a careful catalog
of the things that say be done by the Colorado Dlstrlct
“within the boundaries of the Diatrfct”    and other things
that may be done “within or without the boundarleu of the
Di8trlotr”   For Instance, subsections  (a) and (b) of Sec-
tlon 2 of.the Colorado Act are a8 follows:
            “(a)       to control,  store and meaerve.
     jrithln-the      boundaries of the Dletrict,      the-
     waters    of    the Colorado River and its tribu-
     tories    for    any UB(?ful purpose, and to use,
     dietribute       and sell the same,
     b
     ok und                              for-=9any sue
     snmwet
           “(b)    to develop and generate water
     power and electric     energy within the bound-
     aries of ,the District    and to distribute  an6
     sell water pow;;ea;d     electric  energy, wlth-
     In ,or without         oundarles of the Dlstx%ot,”
            That distinction  as to what may be done wlthln
the Dletrlct   and beyond the boundaries of the blstrlct    ie
carefully   maintained through several of the aucceedlng sub-
sections   of Section 2 of the Colorado Act.   Ho such dis-
Unction    le maintained In the statute by which the Brazoe
District  was created.
            Article   7590, V.C .S,, authorizea the Board of
Water Engineere, upon application,       to Issue a permit after
notice and hearing, to take waters Prom one watershed In
this State into another watershed,        Article   7471, V.C.S.,
determlnea the priorities     to be given in the allotment and
appropriation    of water.   The Brazes Act 1s a special act
relating   primarily to waters of that District,       and It would
control over the statutes above mentioned in 80 far as It
is inconsistent     with such statutes.    59 C!,J, 936, Section %
However, as relates     to the flood,   storm and unapproprlat-
ed flow waters which may be controlled        and conserved, we
find that the Brazoa Act is not inconsistent         with the
powers of the Board of Water %glneers         as conferred by
Articles   7472d, 7525, 7528, 7589, 7590 and 7591, V.C.S,
In fact, Section 2 and Section 4 of the Act provide that
the Dlatrlct~a     powers are subject to other Legielative        A&e.
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Hon. E. V, Spence - Page 6      (No. V-372)


            We accor?Lngly  hold that the Board of Dlrec-
tors of the Brazos River Cctnservation and Reclamation
District   in determining whether or not to enter into a
contract for the sale of excess stored waters shall give
primary regard to the necessary and potential       needs for
water for the Irrigation    of lands in the watershed of the
Brazos.Rlver   and Its tributary   streams for Irrigation      and
domestic uses, and including all necessary water supplies
for cities   and towns within the District,     The Dlstrlct
would be authorized to sell for use outside of the water-
shed only surplus water If, as, and when available.         Af-
ter a determination    on the part of t!le District   to sell
much surplus water for use outside of the wstershed,         it
Is necessary for the one who desires to remove the water
from the watershed, whether it be the District       or some
other person, to apply to the Board of Water Qglneers
for a rsmoval permit as authorized by Article       7590,,
V.C.S.
            In passing "on the rights to be effected"     by
the Issuance of such a permit, the Board of Water Engineers
shall take Into consideration,     among others, the question
of whether the waters which the District      proposes to sell
for removal outside the watershed is, In fact, surplus
water, and the further question of the preference       and pri-
orities  to which the residents    of the watershed are en-
titled  under Article   7471, V.C.S.: and the provisions     of
the Act creating    the Brazes River Conservation    and Reola-
llUh&Qn Dirtrlet.

           The permit which the Board of Water Engineers
may issue for the removal of water outside of the Brazbs
Blver watershed pursuant to ArtlLLe 7590, P,G,#+ $8 n&h-
~&gigmoTe than a 'remOv81 permit" subject to the tecR18 df
the ~oontract between the District and the~purchaser of
the YaBer, and such permit should afflrmatlveLly  so state,
                       SUMMARY
            The Brazos River Conservation and
     Recl8matlon District     has authority to seL%
     surplus stored waters for use outside thh
     District.    Before such water is moved out-
     r&de the watershed of the Brazoa River,
     the peraon or agency desiring      to make such
     removal must obtain a removal permit from
     the Board of Water Engineers, after notice
     and hearing,    In accordance  with Article
     7590., v. c. SC3 Acts 1929, 4lst Legislature,
,   -




        Bon. E. V,   Spence - Page 7    (I?o. V-372)


              Second c. s., Special  Laws page 22, ch. 13,
              as amended, being Title 126, ch. 8, note,
              V. C. S. A&u. 7589, 7590 and 7591, V.C.S.

                                       Very truly   roum
                               .‘ATTOEUW    QEHBlAL OF TEW




        FD/wb/lh




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