Untitled Texas Attorney General Opinion

. - The Attorney General of Texas March 23, 1981 Mr. E. C. Parker, Jr., President Opinion No. MV-313 Board of Directors Upper Guadalupe River Authority Re: Whether the Upper Guadalupe P. 0. Box 1278 River Authority may provide park Kerrville, Texas 78026 and recreational facilities Dear Mr. Parker: You have asked whether the proposed construction of certainpark and recreational facilities by the Upper Guadalupe River Authority ,on its soon to be completed reservoir near the city of Kerrville would be in furtherance of -the purposes for which the district was created. You state that the proposed facilities construction includes “landscaping, making certain areas of the reservoir suitable for swimming, and providing parking areas, restroom facilities, boat ramps, picnic tables, lighting, roads, and fencing for the areas.” The Upper Guadalupe River Authority is a conservation and reclama- tion district created under and pursuant to article XVI, section 59 of the Texas Constitution and Acts 1939, 46th Legislature, chapter 5, as amended (codified as article 8280-124, V.T.C.S.). Article XVI, section 59 of the Texas Constitution states: Sec. 59. (a) The,conservation and development of its storm and flood waters, the waters of its rivers and streams, for irrigation, power and all other useful purposes,, the reclamation and irrigation of its arid, semt-and and other lands needing irrigation, the reclamation and drainage of its over-flowed lands, and other lands needing drainage, the conservation and development of its forests, water and hydro- electric power, the navigation of its inland and coastal waters, and the preservation and conservation of all such natural resources of the State a~ each and all hereby declared pubhc nghts and dutraq and the L&rIature shall oass all such laws as may be approphate thereto. - p. 995 - . Mr. E. C. Parker, Jr. - Page Two (Mw-31% 9~) There may be created within the State of Texas, or the State may be divided into, such number of conservation and reclamation districts as may be determined to be essential to the accomplishment of the purposes of this amendment to the constitution, which districts shall be governmental agencies and bodies politic and corporate with such powers of government and with the authority to exercise such rights, privilqes and ftmctions concerning the subject matter of this amendment g may be conferred by law. (Emphasis added). In 1971, the authority’s enabling legislation was amended (Acts 1971, 62nd Legislature, chapter 430, at 1586-87) to read as follows: Sec. 16. (a) Without limiting the powers granted to the District by this Act, the District shall specifically have the rieht. oower. brivileze. flnction and authoritv to control d&e&; store &td @serve the waters and flood-waters of the Upper Gusdaltxxr River and its tributaries within or without the boundaries of the District for any beneficial or useful purpose and to purchase, acauire. build. construct, improve, extend, reconat&t, repair a& maintaln~ any and all dams, structure& waterworks systems, sanitary or storm aewer or drainage or irrigation systems, buildings, waterways, pipelines, distribution systems, ditches, lakes, ponds, reservoirs, plants, and recrea- tional facilities for the public use and any and all other facibties or equipment in aid thereof, and to purqhase or acauire the necessarv sites. easements, rights-of-way. land or ot6er properties necessary thereof and to io any and-all of the acts and things which may be necessary to the exercise of any and all of the rights, powers, privileges, functions and authority of the District, and same may be accomplished by any and all practical means, and the District may sell water and other services. (Emphasis addedL In 1975, the Attorney General rendered an opinion that the development of parks and recreational facilities by municipal utility districts created under article XVI, section 59 of the Texas Constitution in the district16 program of developing and conserving the natural resources of the state is a constitutionally permissible activity. Attorney General Opinion H-491 (1975L t1101. the court held that certain orooosed recreational facmes to be built bv the met would not serve the purpos& for which the district was created. This de&ion has apparently created doubts as to whether the river authorities of this state can construct recreational facilities on reservoirs In the Harris Camtg W.C.I.D. #llO opinion, Chief Justice Phillips states quite pointedly that “itl he question in this appeal is whether a municipal utility district may p. 996 . . . . Mr. E. C. Parker, Jr. - Page Three (MW-313) provide perk and recreational facilities which include a community center, three s,wimming pools, four tennis courts, and a clubhouse. . . .‘I E at 853. (Emphasis added1 Thus, recreational facilities per se are not prohibited but rather, are limited by the standard set out by the court to-%: “[tl he power to construct recreational facilities must be exercised to further a purpose of section 54.012 [Texas Water Code) to be justified and constitutionaL v Ia, at 854. The court had previously stated that “[$I ection 54.012 of the Texas Water Code, entitled ‘Purposes of a District,’ parallek the Muage of article XVI, section 59(a) (Texas ConstitutionL” Id. at 853. Implicit in the lquage of the opinion is a question of the degree of relaTionship between the recreational facilities and the constitutional purpose of the district. Section lLO24 of the Texas Water Code, a legislative statement of public policy regarding the use of state waters, provides: In order to conserve and properly utilize state water, the public welfare requires not only recognition of beneficial uses but ako a constructive public policy regarding the preferences between these uses, and it is therefore declared to be the public policy of this state that in appropriating state water preference shall be given to the following uses in the order named: (1) domestic and municipal uses, including water for sustaining human life and the life of domestic animals; (2) industrial uses, meaning processes designed to convert materiak of a lower order of value into forms having greater usability and commercial valtm, including the development of power’ by means other than hydro- electric; (3) irrigation; (4) mining and recovery of minerals; (5) hydroelectric power; (6) navigation; (7) recreation and pleasure; and (8) other beneficial usea. The reservoir in this case is being constructed primarily to control and store water on the Guadalt@ River as a surface water supply for the city of Kerrville, in compliance with the constitutional purposes of the district and the statutory priorities of water usage. One secondary use of the reservoir as enumerated by the legislature is recreation and pleasure. p. 997 . . Mr. E. C. Parker, Jr. - Page Four (l&q-313) The legislature has given conservation and reclamation districts the necessary powers to regulate the use of reservoirs for recreational purposes. The Texas Water Safety Act provides In section 3l.O92(c) of the Parks and Wildlife Code: The governing board of a political subdivision of the state created pursuant to Article XVI, Section 59, of the Texas ch-qter. (Emphasis added). We are advised that constructing the proposed facilities will aid proper control and regulation of the recreational use of the reservoir. The Harris County W.C.I.D. #llO opinion prohibited construction of a complex of recreational buildings and facilities which were uwelated to the constitutional purposes of the district. It is our understanding that the facilities you propose to build are related to a relatively minor portion of the total reservoir project and serve to promote the full use and enjoyment of the reservoir by the public. We feel that the improvements you propose are ordinary and necessary to the proper control, management, and regulation of public reservoirs and lakes, and are in furtherance of the constitutional purposes of “the canservation and development of all natural resources of this State, Including the control, storing, preservation and distribution of. . . the waters of its rivers and streams; for irrigation, power and all other useful pUWOSS.” Tex. Const art. XVI, 559(a). (Emphasis added). Conservation and development of natural resources includes use and enjoyment “Conserve” means to keep in a safe or sound state, to save, to preserve from change or destruction, and is svnonvmous with maintain. sustain. uohold. &fend. orotect. euard. shield and secure. PecosValley Artesian Cc&ervanc~ D’istric’t v. Peters, 173 P.>d 490 (N.M. 1945). The reservoir cannot be used and enjoyed without facilities designed not only to accomplish and regulate such use, but ako to conserve and protect the reservoir. SUMMARY Construction of recreational facilities to make certain areas of a reservoir suitable for public access and use, to include landscaping, making certain areas suitable for swimming, providing parking areas, restrooms, boat ramps, picnic tables, lighting, roads, and fencing is a constitutionally permissible activity of a conservation and reclamation district created under article XVI, section 59 of the Texas Constitution. p. 998 Mr. E. C. Parker, Jr. - Page Five (MV-313) m Attorney General of Texas JOHN W. FAINTER, JR. First Assistant Attorney General RICHARD E.GRAY III Executive Assistant Attorney General Prepared by Ladd Pattillo Assistant Attorney General APPROVED: OPINION COMMl’lTEE -Susan L. Garrison, Chairman Jon Bible Rick Gilpin Ladd Pattillo Bruce Youngblood p. 999