ifotmrrbla A. C. Spencer OpLlon No. WW-97
Executive Directo$
Texas State Soil Caimbrvrtion Board Ro: Jr the State Board of Water
Temple, Texas, Engineers, under the State Iawr
rcguitrd tn approve wawrahed
plans and the ,dcstgn and speci-
flcatioar for individwl structures
in the pbn 7
Dear Mr. 8pePcrr:
With respect to your letter dated March 20. 1957, which wa
quota ill part as followa:
“1. If:@ Water Control sad Improvement District,
organized under Texas Law is co-sponsor and contracting
agency. for a, Watershed Protection and Flookl kavkatlon
Project 8s rathbkized under Put&c Law’.564, Ack df tba
83rd Congiebs. es amended under Public Law 1018, Acts
of the 84th C,ongrecln, and
*a. &art of easements and rights-of-way, con-
tract rdminirtrrtioa at&d operations’ and matntenance
is financid by bonds issued by the district,, or
*b, Above costs are financed by contributions
to the $istricf by individuals, groups, municipel)ties
or counties, or
%i Chat of e~semeate akd rights-of-way arid
ebntract, administration are d$atcd to the dirrtrki
and (ljbonds are issued, or (3) annual kx revenue
is used to finance operation ind maintenance costs,
.
is tsu State Brprrd of Water Engineers, under State Laws
required to,appk&e watershed plans rnd the design and
rpeciNcations for indlviduai structures in the plan?
*a. If a county serves es co-sponsor and con3tecting
agency and .
“a. The county gine’r& funds are used tp pry, : _
coots of easements end rights-of-way, contrnct ad-.
minirtratien and operations and maintenance, or
“b., &+a1 ad valorem taX funda ore used for
8bOW colh, or
“c.. All easemente and rights-of-way ere donM&,
wi& the county paying costs of contract adminlrtr~tha
and apardoa end maintenance,
18 the State Board of Water Engineers, under State Lrr*
t*~ulmd to gtp@ve wderrhod plans and the dkei@i ra8
IS(rctficaiions for individua,l structures in the plan?
-3. If a soil conservation district is sponsor and ,/--
comtr8etlng lgcacy 8nd
‘e.. All costs of easements and rtghts-of-way
~6: donatdd, wid chtrac% .adininistratton and opera-
tions and maintenance are financed out of distrtct
fundr (no taxes or bonds), or
“b, All of above costs are donated to the di&rlct,
is the Stets Board of Water Engineers, under State J+we
r.eqoired to approve watershed plans and the design and
lpecificationo for individual, structures in the plan?
‘Pnbllc Lew 566 as amended by Public Law 1018 #es-
&tr thh’addttlon of~wrter storage apece to flood prrveatten
ikroctures, provided, however, that no structures shall &ore
more then 25,000 acre-feet and provided that in such casen
the Fedare Government will pey the full cost of the structiurr
a&lo-d for flood prevention with a muntcipality, individual
or 8~~8 peying the additionel coat (including engineering
eerytees) of m$er conservatton capecity. The water user
woutd secure nec~eoeery weter storage.rights through the
$tMr Btprd of Water Engineers.
Jlonorable A. C. Spencer, Page 3 (~~-97)
*The above being true:
‘4. What effect would w &ddWm of mwatriprrl or
irripdion,watw stor88e capreity to a flood wrt~retaxd- I ,.
ing structure bavs on the qua&on of State Board of Water “.
Engineers’ approval of,the over all watershed plan and
darfgn of individual stiuctusea?
9. Ia,tbs State Board of Water gnginesri, requjrad
b9 law to approve the plan ad drrign of e d,rrtnrgr project
plmn~d and conatructod by (1) # woktx control and impr@vW
mat dlrtrfct, (8) aotl coneerv*ti@n dirtrict, or (3) county,
with the technic&l and financial irrirtmtc of tha Soil Con-
tirva$ton &rvisr furnlrhrd uad8.r Public Law 566, an anwaded,
when tba eubdivieloa of Statb Oavernmant furnisher the e8or
meats and rights-of-way, contract rdminirtrtitior, l $8rt of
construction coats and operatie and mrint*inr %s p*ojecrt?“.
.w,e tandrr $& following opinion:
The beata inquiry psrtitning to the puerthq pugkd htnw Is --
what ere~ the dutia.i of the Board of Wadr Engineerr, h aqsrfairad by the
Constitution of Tanas end ~Teuas Statutes, relative to the typea of ntructures
compraheaded by Public Lawr 568 an,d 1018* ?
The title and enacting clause of Public kw 566, as amended, *
a@pra, la quoted as follow&:
“To rdthortle the Scerekry of Agriculture to coop-
erate with dM.ee and local agencier in the plannfng and
carrying out of works ai improvement for roil conBerva-
tide, and for other purporbs.
“Be it enactad by the Senate and House of Rapre-
aenbtives~ of the United States of Americ@ in Congrfsa
.asremblcd, That erosion, flood water, and sediment dim-
ager in th+ retersbedr of the rivers end streams of the
United States, causing lose of lifa and damrpo td propartp,
coutitute e menoce to the n8ttonal welfare; and that it is
tlu WXASQ of Congress that the Federal GOvQrnment should
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Honorable A, C. Spencer, Page 4 (WW-97)
@operate with status and their political subdivisions,
soil or water conservation districts, flood prevention
orcontrol districts, and other local public agencies for
the purpose of preventing such damages and of, furthc7;;
,
tn& the conservation, development,, utilization, a~nddis-
posal of water and thereby of preserving and protecting
the Batton’s land and water resources.” (Emphasis
supplied)
Article 7472t, V.C.S., places certain duttes upon tbe Board of
Water Engineers with re,spect to federal projects affecting public waters in
Texas. This article provides that the Board shall hold hearings in the same
manner as In the case of hearings held on applications for permits to appro-
priate $tate waters. In determining the feasibility of the federal project, the
Byrd fs required by stat&s to consider the following: (a) Effect ‘of such
federal project on wakr users on the stream: (b) the public intersst to be
served;. (c) development of dam sites to the optimum potention for water con-
servation; (d) integration of such federal project with other water conserva-
tton acttvtties; (e) pro&&ion of the State’s interest in the Texas water resour-
ces; (f), engiqeer.ing, practicality’of the f&era1 project, including cost of
construction and maintenance.
Tka provtstoas of Article 7472e are cumulativa of other ~statutes
relating to public waters tn Texas and provides a particular type of hearing
before the Board of Water Engineers for federal projects affecting such public
wators. It does not repeal or modify other statutes placing mandatory duties
upen the Board of Water Engineers. While it is clear that under Subdiviston
6 of the!Ac$ the specific type of hearing provi,ded in Article 7472e is not re-
quired of projsets dev$opad in cooperation with the Secretary of Agriculture
under. the watershed pttikction and flood prevention acts, the subdiviston
clearly provides no examptfon of any federal project from the Board.8 jurts-
diction conferred by other akkks. Therefore, an examination of the.ae staG
rites is ahcasrary to a determination of your questions.
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BOND ISSUES
Except in cases where preliminary bonds are authorized, (Article
7880-~31.;V.C.S..), before bonds are issued, the Board of Water Engtneera has
a statutory duty of passing upon plans by (a) water improvement dktrick
(Arttcle 7799, V.C.S.); (b) water control and improvement districts (Article
7880-139); and (c) fresh water supply districts (Articles 7936 and 7799). These
sktuteolplace a definite responsibility upon the Board to make a thorough
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Honorable A. C. Spencer, page 5 (WW-97)
iawstigetton of proposed improvements before apprWk# .baMis. Thk 1s
trw wbetbsr the bond proceeds are used only for purchase of right-of-way
or fiood eesements, or for such purports as well as for payment fOr the
structures involved. See Hopkins County Levee Improvement District Nc: 1,
et al., v. Smith, et al., 266 S.W. 800, error ref. ‘&therefore, except for proper
expenditures of preliminary bond funds, in each situstion described in your
questions involving the issuance of bonds by such water districts, coarpliance
with statutes requiring Board approval of plana is required.
Counties are giwn statutory ruthorlty to isme bonds for the
creation of drainage districts. Article 8097, et seq., V.C.S., and the Attorney
General is required to approve these bonda, Articles Bl32, 6136a, V.C.S.
Howewr, there is no statutory requtrement that the Board of Water Engineers
approve plans of such districts.
APPROPRIATiONS OF WATER
Artlclr 7492, V.C.S., providea:
“Every psraon, association of persons, publtc or priwtc
corporation, politics1 su~iviston of the Skk, agency of the
Strte or of tlk United States, whmshall, after this Act ,ehail
kke effect, desire to acquire the right to appropriate, for the
purposes skted in this chapter unappropriated waters of the
Stzta, rhsll, before commencing the construction, enlargement
or extension of any dam, lake, reservoir or other storage work,
or any ditch, canal, intake, head gate, pumping plant or other
distributing works, or performing any work in connection with
t&s storage, taking or diversion of water, make an application
in writing to the Board for a permit to make such appropriation,
#torage or diwraioa.”
Article 7500a, V.C.S., provides:
‘Anyone may construct on his own property a &m or
reservoir to impound ‘or contain not to exceed two hundred
(800) acre-feet of water for domestic end liwstock purposes
without the necessity of securing a permit therefor,”
Under these statutes a permit from the Boerd of Wakr Engtneeis
b required before commencing construction of any itructure to ba utilized in
tbs lppropriatton of public waters for any of the beneficial uses outlined in t:
“,;~
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~Rrmarable A. C. Spencer, Page 6 (WW-97)
Arttcie 7470, V.C.S., except for 200 acre-feet reservoirs for livestock and *
domestic purposes constructed on privats property. Therefore, a determine-
tion of whether the structures contemplated by Public Laws 566 and 1018
aft& an appropriation of water is required.
Even though these structures are designed to utilize water under
c.trcumstances which would constitute an appropriation of water wit&in ths
mean&g of the Texas statute, no appropriative permit is required unless the
structure is located on a “watercourse” as that term is defined by the courts.
Turner v. Big Lake Oil Co., 128 Ter. 155, 96 S.W.2d 221 (1936); Hwfs v.
Short, 273 S.W. 785, fer.Ctv.App. (1925). The Supreme Court of Texas in the
Hadfs v. Short case defiwd a watercourse ae follows:
‘When it is said that a stream in order to be e natural
watercourse to wkkh water rights attach must have bed. banks,
a current of water, and a permawnt source of water snppl7, we
have only described in detail such physiographic and meteoro-
log-1 characteristics as make the use of the stream for irri-
gatton practicable. When it ts once shown that the waters of a
stream are so confined and persistent in their course, and flow
with such freqwncy and volume ,&at it is both practicable and
valueble to irrigate therefrom, it is a stream to which w+r
rtgbts attach.”
As to the meaning of *source of supply”, tbe Court atited:
“All authorities agree that a current of water is necessary,
yat the flow of water need not be continuous, and the stream inay
be dry for long pertods of time.”
Generally, if the structure is not located on a~watercours~e, and ’
only differed surface waters are involved, no appropriative permit is required
to beaeficielly uttlize diffused surface waters. Turner v. Big Lake Oil ~Co.,
Fer a detailed discussion of the holding in the Turner case, see Right@ ,‘~
we Surface Waters in Texas, Proceedings, Water Law Conference,
June 17-18, 1954. University of Texas Law School.
Aa to structures to be located on “wakrcoursesar tb nec+rLty
of an appropriative permit .depends on a number of c,hxunshtce~m which must
be determined waler the bets of each case. If the strwturem te be coemtracted
m&&r Public Laws 566 and 1018 store water, under conditioas other then tbooe
.wmpted by Article 75008, we are of the opinion that appropriative permits
-M&O A. C. 6pencer, -pa 7 (~~-97) i
lm requtred rince the l$ o r ofa g e conrtttutnr
wa ter a n l
~pproprWion*. we
qu&e $IuWhlao, Selected Problemr h the Law crfawr Rigbtr in the fert.
k&c, Pub* 418, U.S.D.A., at P. 324:
*T&e etoragc of water IO a means of mokiq l prtag flood
flew~ ayailablt for late oeason use, when the direct flow of
*&earns is usually low, and of carrying watef aver from pars
of abundant prccipttatton to supply the ddficicncies of subseqwut
draw@ soasone. It is a memo of conservation of water 81 well
lo l feature ti aood protection; hoace appropriations may be
mnde for&wage us well as for direct use of water. Tbe etorage
ta d m,suke a meaaa ,%aan end--&a application of watar ta bene-
ficial am. qach am the t?rtgWm of land, ot tha parrtng of weter
area@ a pleat for the pwratlon of slectriccrl energy.”
!Eka Supreme Court of California has hell that the rtorage of rota? fer ‘fbod
c@ntrOl, ,equaliution and stabiliution, of flow end future uee” islmong the
bftofei uses of water for ah ich an l pptoptiatton may and muet be made.,
13 Ca!.Od 4g4, 90 Pec,gd 531 (1939). Accord: Moore
140 Pac.2d 292, 802, 22 Cal.2d 725 (1943r;‘--
. C. Wash., 42 Fed.Supp. 459, 468.
Prom bur correspoadenca wtth you under the dates, of April 16
rJ 19, 1957, we tmderetand thet the rtrwturor contemptted by Public Lewa
w end 1018 are pttmartly flood water retarding rtructurer rether then
rtcraga ltructarea befag incapable of storing more than 200 acre-f&d of
-2~ without modtftcation, and that ne we is made of the water retarded.
w wat$r being automatically roleared am rapidly as t&e drum c&awl
will carry it ~tthout flooding. ‘F
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Accordtng to Hutchins, Selected Problems la tL I&r of Water
oq~r, a,uch flood water tetirdiu& strwtww do *et in-
F or&kattky cantwwpl*tod by approprtattotn 8trl&oa. 10
*Their purpore is to regulate flood flows, not to stow
waCt for later use; and whils they necessarily withheld water.
)he detention ia for bai,ef periods. Thta ta e benrfictel purpoea
{n the interest of land conservation afid flood protection, but
k aat auoh a use of water as is ordinarily c~@t#$btsd by the
appropriation statutes. The purpose of the structure is to bene-
fit the public, and not to acquire an exclusivs right to the flow
B~oporabla A. C. Spencer, Page 8, (WW-97)
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of a ipecific quantity of water for the eole uao of an individual
appropriator or group of appropriators. In thio case, the wata?
is not wan&d at all.’
An examination of Article 7470 indicates no legislative intent
&a$ tba retardation of flood flows without any storage or baneficial uaa for
the purposes stated therain is in@uded withtn the purpoacs for which an ‘
appropriativa permit may and must ,k obtainad.
We therefore coaclude that the flood retarding feature of the :~
structures contemplated undtr Public Laws 566 and 1016 deea not constU~&
an appropriation wtthtn tba meaning of the Texas statute aad that no appro-
priattw perm,it ia nquirad for thie parpose alone.
Our holdiag that an appropriative permit is not rtquked for the
eoas$ructto~ of flood tatarding structures by the politldal subdiviabrs of ke
8tata auntloaad~‘ln your letter ta aot to be ln~rprttad as a holdiaq that no
a-r&y froth thb Stata t8 necessary to obstruct the flow of a public wator-
couaa when no appropriation is effected. The public right and d&y to coo-
serw and develop public wattrs vested in the State by the Texas .COtWitdiO&
Artkle XVI, Saction 5,9a, and the Stati’s ownership of euch waters., Article
7467, V.C.S.., miy well require that permission to obstruct a watercourse be
obtaiaad from the Stete even whm.tttle to thenbed of the wattrc.ourse Ls not in
.tha State. .Lnthis, opialoa we haw.asaumed that the statutory l nth o rolder
tty
whleh each of the political aubdivisioas menttoaed in your lettar operates la-’
cludas the authority to obstruct publtc watercoursea for flood control purpekseei
l-forever, not only retard flood flows ~bat are
these structures
designed to provide up to 200 acre-foot of water’storage ia tba l edtmentaxy
pool. We ate advised that when the structures are bull& the uoe of the sedb
mantary pool for livestock arid domqatic purposes by the kndowura as wad
aa PM for silt storage is contemplated. From what has been raid above it ta
apparent that utader these ctrcumrtancts an approprtatlva pdrmit is required
unJem*the water storage provided is excepted by Article 75008, V.C.S.. per-
mWtlng tha constructton on one’s own property of a dam or reservoir with
capactty up to 200 acre-feet for iivestock and domestic purposes without an
approprtative permit.
The only question concerning the applicatioa of tM8 axamptioo
to the circumatanccs outlined tn your letter relates to the requiremeet tbait
the dam or reservoir be iocated on 8neId *own. property. This reqairamant
of ownership of the land by the owner of the structure necessarily prohibits
the location of structures which would otherwise be within the 7500a axtmp-
tioa across streams where the State of Texas has title to the bed of the stream.
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Honorable A. C. Spencer, Page 9 (WW-97)
The beds of all navigable streams, including those made navigable
by virtue of Arttcle 5302, V.C.S., are the proparty of the State. Stste of Texas
v. Bradford, 121 Tex. 515, 50 S.W.2d 1065: Manry v. Robieon, 122 Tax. 213,
56 S.W,.2d 438; Diversion Lake Club v,, Heath, 126 Tax. 129, 86 S.W.?d 441.
Whethtr the State owns the bed of the stream at a particular location under
Article 5302 Is determined by whether the stream or tributary tn question has
a nlvtrage width from cutbank to cutbank of thirty fctt from its mouth to the
location in question. Mot1 v. Boyd, 116 Tex. 82, 286 S.W. 458; Diversion Lake
Club v. Heath, m; Heard V. Town of Refugio, 129 Tex. 349, 103 S.W.2d 728;
Stste v. Bradford, supra.
Article 5414a, V.C.S., commonly known as the Small A,ct, validated
certain pstsnts on lands lying across or partly 8cros.s watercourses or nsvi-
gable ltrtama by granting and relinquishing certain ltmited rights ,to previous
patenttoe of such lands. Section 2 of this Act reads in part: *. . . provided
that aothing in this Act contained shall impair the rights of the gsneral public
and tba Stste la the waters of streams or the rtghtr of ripartsn and appropr,is-
ti# owners in the w8k.w of such etreama , . . . ,II Tht Supreme Court of Texas
in State v. Bradford, m, construes the above quoted rsservation to the Stste
and public of the waters of the streams involved in the Small Act ss including
-sll things neceeeary to the practicable and lubstanttal use of and enjoyment
of tk thtngs reserved. It carries with it the power to construct dams or other
worka upon or across the bad of the river in order that tht public might enjoy
tha rights of irrigstion or other use of the watsrs.Y
In some limttad situations, the State hss title to stream beds
which do not meet the test of Article 5302. Prior to the enactment in 1837
of what is now Article 5302, the Spanish and Mexican laws with respect to
watorcoureee were in affect. Under these laws the waters of all streams,
regardless of their width, were reserved to the State. Heard v. Town of
Ret&o, eupra; Ststs v. Bradford, m, at page 1073.
We rtcogniae that it is most difficult in many caioe to dettrmino
whether the etraam bad is owned by the State at a particular location, and
whothar, therefore, Article 750011applies; howewr. we undtretand that moat
of tbaoa flood retarding structures will be built on small tributsriee high up
,,
in tb# wate)ehed. . Stnce thh thirty foot average width test of Article 5302
applies only from the mouth of the particular trtbutary tn questton, the doter-
minati?n may not be too complex. In situation8 wbare tht stream bed ir not
tha property of ths State. Article 7500s would exempt ths appropriativt permit
requirement: (a) where the governmental body owning the structure owns the
property or has an easement for the etructure, (b) the storage feature of the
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tlonorebb A. C. Spencer, Page 11.(WW-97)
watarshed pXans and the design and spe~ifkatione
of individual etructures in such plans where bends
are issued by a water ,tmprovement district, water
contro&snd improvement district. or fresh water :
supply district for purpkcs other than those for
which preliminary bonds mey be properly iseued.
The Board of Water Eaptneers is not required to
approve county bondb issued for, creating a drainage
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dimtrict.
Very truly yours,
WILL WILSON
Attornev General of Tere
BY
Noughta Br&e, Jr.
Hb:tiw Aaaistent
APPROVED:
OPIRION COMMITTEE :
W. Grrdy Chandler , Chairmen
I, Arthur Sendlin
Richard Stone
B. II. Timmine, Jr.
IEVIIEWED FOR THE ATTORNEY GENERAL
BY: Gao. P. Blackburn
*WmtermhadProtection and Flood Prevention Act (P.L. 566, 83rd Cow.;
69 Stat. 666), as amended by the Act of August 7, 1956, (P.L. 1018, 84th
Cw.; 70 Stat. 1088).
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