Untitled Texas Attorney General Opinion

TEE ATTORNEY GENERAL
OF TEXAS

Noveuber25, 1987

Honorable Terra1 R. Smith Opinion No. JM-827
Chairman
Natural Resources Committee Re: Authority of an Under-
Texas House of Representatives ground Water Conservation
P. 0. Box 2910 District created under the
Austin, Texas 78769 authority of article XVI,
section 59, of the Texas
Constitution

Dear Representative Smith:

you ask several questions about a statute enacted by
the 70th Legislature, &8~ Acts 1987, 70th Deg., ch. 992,
at 6764 (enacting S.B. No. 1518 hereinafter referred to as
the bill), creating the Anderson County Underground Water
Conservation District. The legislature enacted the bill
P pursuant to the authority of article XVI, section 59, of
the Texas Constitution, a provision authorizing the
creation of special districts to conserve and develop the
state's natural resources. It has been suggested that the
district was created solely in an attempt to regulate a
proposed hazardous waste management facility in the area.
The facility in question plans to use space created by the
dissolution of salt within a salt dome (the Keechi Dome)
for the storage of hazardous wastes. The facility
proposes to use fresh groundwater from the Carrizo-Wilcox
Aquifer to dissolve salt within the Keechi Dome. The
brine dissolved from the dome will be injected into
another aquifer, a saline aquifer. your questions focus
primarily on the fact that section 12 of the bill grants
the district powers that you assert have not been granted
to other article XVI, section 59, districts.

Section 5 of the bill states:

Except to the extent of any conflict with
P this Act or as specifically limited by this
Act, the district is governed by and subject
to Chapter 52, Water Code, and has all the
powers. duties. authorities. and resnonsi-
bilities nrovided bv Chanter 52, Water Code,

p. 3946
Honorable Terra1 R. Smith - Page 2 04-827)
,

except the authority to issue bonds and levy
taxes under Subchapters G and Ii, Chapter 52,
Water Code. (Emphasis added.) -.
Section 12 of the bill provides for the following
additional powers:

(a) The district may prohibit the
pumping or use of groundwater if the
district determines that the pumping would
present an unreasonable risk of pollution.

(b) The district may limit the pumping
of groundwater to uses determined by the
board to benefit the district.

(c) The district may require persons
holding a permit for an injection well to
purchase water from the district.

(d) The district may adopt regulations
for the disposal of salt dome leachate in
the district or may require disposal of salt
dome leachate outside the district.
T.
your first question is whether the bill creating the
district violates article III, section 56, of the Texas
Constitution. Article III, section 56, states "The
Legislature shall not, extent as otherwise vrovided in.
this Constitution, pass any local or special law"
(emphasis added) on certain enumerated subjects. See
Attorney General Opinion JM-535 (1986). Article XVI,
section 59, provides express constitutional authority to
enact laws that operate only in geographically defined
areas and that grant powers applicable only in that area
with regard to conserving and developing the state's
natural resources. See Brown v. Memorial Villaaes Water
Authoritv, 361 S.W.Zd 453, 456 (Tex. Civ. App. - Houston
1962, writ ref'd n.r.e.); see also Attorney General
Opinion M-871 (1971).

Article III, section 56, also provides that "where a
general law can be made applicable, no local or special
law shall be enacted." The brief submitted by the
proposed hazardous waste management facility suggests ?
that, because the legislature has defined the powers of
underground water conservation districts in chapter 52 of
the Texas Water Code, a general law, the legislature
cannot define the powers of such a district in a special
?

p. 3947
Honorable Terra1 R. Smith - Page 3 (JM-827)

law. The language in article III, section 56, however,
must be construed in context with the first sentence of
the provision and with the whole of article III, section
56. As indicated, section 56 recognizes that other
provisions of the Texas Constitution may provide express
authority for certain local and special laws. The
argument that chapter 52 of the Water Code could consti-
tute the exclusive authority for underground water
conservation districts ignores the fact that chapter 52
was enacted to grant powers to districts created pursuant
to article XVI, section 59, of the Texas Constitution.
Without this constitutional authority, chapter 52 would be
meaningless because most of the districts to which chapter
52 applies could not have been created. The fact that a
general law is capable of providing for some district
powers does not mean that article III, section 56,
requires that general law define all of the powers of all
districts.

A similar argument is that the bill violates article
III, section 56, because the bill grants powers not
generally made available to such districts, i.e., it
exceeds the powers granted in chapter 52 of the Water
Code. The dispositive question, however, is not whether
the legislature has given the same powers to other
districts in chapter 52 of the Texas Water Code. The
purpose for special districts is to operate solely in
geographically defined areas to serve the special needs of
the area defined. Chapter 52 of the Water Code simply
enumerates certain guidelines, powers, and duties for
underground water districts to prevent waste, pollution,
and drawdown of the water table. Chapter 52 contains
general powers that may be used by any district governed
by chapter 52. The legislature has granted additional
powers to solve the special problems faced by particular
districts to numerous districts created over the years
under article XVI, section 59. General laws governing
article XVI, section 59, districts apply to such districts
only when the general laws are not inconsistent with the
special acts creating the districts. Hidalao County Water
C ntrol and I nr n District No. 1 v. Hidalao Countv,
ly4 S.W.Zd 46:, i?e(:ex. Civ. App. - San Antonio 1939,
writ ref'd): see also Attorney General Opinion m-706
(1987). Consequently, chapter 52 cannot limit the powers
granted by the bill in question. See also Acts 1987, 70th
Leg., ch. 992, 55, at 6766 (chapter 52 applies to district
only to extent it does not conflict with bill).

p. 3948
Honorable Terra1 R. Smith - Page 4 W-827)

The dispositive question is simply whether the powers
granted by the bill in question are within the general
scope of powers contemplated by article XVI, section 59.
m Attorney General Opinion M-871; Ef, Davis v. CitV of
Lubbock 326 S.W.2d 699, 710 (Tex. 1959) (the legislature
is not iimited to creating the governmental bodies that
are specifically set out in the Texas Constitution).
Article XVI, section 59, does not restrict expressly the
powers of the districts it authorizes the legislature to
create. Nor does it provide that the powers of such
districts must be uniform. As indicated, article XVI,
section 59, was intended to authorize non-uniform laws to
meet the needs of specific areas. Subsection (b) of
section 59 provides that districts may hold "the authority
to exercise such rights, privileges and functions con-
cerning the [conservation of natural resources] as may be
conferred by law." Additionally, as a general rule, the
legislature may enact any law not prohibited by the state
or federal constitution. Brkins v. State, 367 S.W.2d
140, 145 (Tex. 1963); see, e.a,, Davis v. Citv of Lubbock,
sunra.

The brief from the proposed hazardous waste manage-
ment facility suggests that regulation of groundwater
within the boundaries of the district will have no effect
on groundwater conservation because of the relatively
small size of the district in relation to Anderson County
and in relation to the major aquifer in the area. The
brief asserts that, for this reason, the district's
boundaries may not bear a rational relationship to the
purposes for article XVI, section 59, districts. It has
been alleged that the sole purpose of the district is to
regulate the proposed hazardous waste management facility
within the district. The argument is that this exceeds
the general scope of power contemplated by article XVI,
section 59, and is therefore an invalid local or special
law because it is not "authorizedI' by article XVI, section
59. For example, in Attorney General Opinion W-871
(1971), the Attorney General struck down a local law
prohibiting hog pens within a certain distance of resi-
dences because it was not within the power to regulate
tivest~cka~anted~ in article XVI.. section 23.. of the Texas
Constitution. As indicated, however, the legislature is
not limited to creating the governmental bodies described
in article XVI, section 59. Davis v. Citv of Lubbock, 326
S.W.2d at 710.

Moreover, this office cannot say as a matter of law
that this district's boundaries and powers do not relate

p. 3949
Honorable Terra1 R. Smith - Page 5 (JM-827)

to the water conservation powers contemplated by article
XVI, section 59. The legislature made a legislative fact
finding that there exists a public necessity to create
this particular underground water district pursuant to
article XVI, section 59. This office cannot "second-
guess** the legislature's fact-finding. The opinion
process was not intended or designed to resolve complex
factual disputes. Additionally, a statute under constitu-
tional scrutiny should be upheld if reasonably possible.
1
Stat e . v. Texas
Municinal Power Aaencv 565 S.W.2d 258, 266 (Tex. Civ.
APP. - Houston [lst Disi.] 1978, writ dism'd) . For these
reasons, the bill creating the Anderson County Underground
Water Conservation District does not on its face violate
article III, section 56, of the Texas Constitution.

Your second question is premised on the assumption
that the bill grants the district the power to indirectly
affect the location, construction, or operation of a
hazardous waste management facility. You ask whether this
power is violative of the Texas Solid Waste Disposal Act,
article 4477-7, V.T.C.S. See also Tex. Water Code ch. 27
(the Injection Well Act). Section 4(e)(6) of article
4477-7 provides that a facility that obtains a permit from
the Texas Water Commission pursuant to section 4(e) shall
not be required to obtain a permit for the siting,
construction or operation of the facility from any local
government or other political subdivision of the state.
Section 4(e)(6) also prohibits political subdivisions from
enacting rules, regulations, or ordinances that conflict
with or are inconsistent with state requirements for
hazardous waste management facilities. The Solid Waste
Disposal Act contemplates that the Texas Water Commission
shall have exclusive power regarding the impact on
groundwater of the siting, construction, or operation of
hazardous waste management facilities.

This argument appears to be that the exercise of
powers granted to the district in section 12 of the bill
will necessarily interfere with the construction of a
particular hazardous waste facility. It has been
suggested that only a uniform, state-wide policy regarding
the siting, construction and operation of hazardous waste
management facilities will enable Texas to maintain
adequate disposal capacity for wastes generated by
industries within its borders. The effect a series of
bills such as the one at issue here could have on the
uniformity of the state‘s regulation in this subject area
may be significant. It must, however, be presumed that

p. 3950
Honorable Terra1 R. Smith - Page 6 Of-827)

the legislature considered relevant policy questions when
it enacted the bill creating the district in question.
See al o Smrth v. Davie 426 S.W.Zd 827 (Tex. 1968) -
(wisdoi of law is legisiature's prerogative, not the
courts') .

The legal basis of this argument appears to be that
because site preparation such as dissolving salt in the
Keechi Dome is directly related to the construction of a
hazardous waste facility, the powers granted to the
district in section 12 of the bill conflict with the Texas
Water Commission's jurisdiction to control the siting,
construction, and operation of hazardous waste facilities.
It is not clear whether the bill in question is in
lqconflict'*with the Texas Water Code in the manner you
suggest. Although there clearly exists some overlap
between the effect of the powers that may be exercised by
the district, it is not clear that the two pieces of
legislation conflict in the legal sense that they cannot
both be given effect. $2~ Cole v. State 170 S.W. 1036,
1037 (Tex. 1914) (effort must be made 40 reconcile two
statutes that appear to be in conflict). In the event of
an irreconcilable conflict, the latest expression of
legislative intent ordinarily controls. lTe!sid. Addi-
tionally, as indicated, general laws apply to article XVI,
section 59, districts only when the general laws are not
inconsistent with the special acts creating the districts.
Ridalao Countv WCID N 0. 1 v. Hidalao County 134 S.W.2d at
467. The Solid Waste Disposal Act and the'bill creating
the Anderson County Underground Water Conservation
District, however, are not on their face in irreconcilable
conflict. An attempt must be made to give effect to both.

On the other hand, whether the actual application of
particular rules and regulations of the district may
conflict with the Water Commission's exclusive permitting
authority under section 4(e)(6) of article 4477-7,
V.T.C.S., depends on specific rules and regulations
enacted by the district and on the facts surrounding their
application. Under section 4(e)(6), the party challenging
the district's rules must shoulder the burden of proving
that the rule is in conflict with state requirements.

Your third question is whether the bill violates the
equal protection requirement of article I, section 3, of
the Texas Constitution insofar as the bill authorizes the
district to require injection-well permit holders to
purchase water from the district. Article I, section 3,
is roughly analogous to the equal protection clause of the

p. 3951
Honorable Terra1 R. Smith - Page 7 (m-827)

Fourteenth Amendment to the United States Constitution,
which prohibits the discriminatory treatment of similarly-
situated persons. &8 San Antonio Retail Gr er , In
&afferty, 297 S.W.2d 813 (Tex. 1957). DiEerLt F&2
classifications are not, however, prohibited if there
exists a "rational basis" for the classification. See
Attorney General Opinion JM-766 (1987) (and cases cited
therein). The test of a "rational basis@' under article I,
section 3, is whether any basis for the classification
exists that could have seemed reasonable to the legisla-
ture. San Antonio Retail Grocers v. Lafferty, 297 S.W.2d
at 815; Texas Board of Private Investiaators and Private
Securitv AaPncies . B x r C UntV Sheriff's ReSeNe, 589
S.W.2d 135, 137 (zex.eC?v. EPP. - San Antonio 1979, no
writ). Legislation limited in operation to a small
portion of the state or prescribing different rules for
distinct geographic areas is not invalid on equal
protection grounds when there exists a reasonable basis
for the distinction and all similarly-situated persons in
the geographic area are treated equally. Wouton v. State,
627 S.W.2d 765, 767 (Tex. App. - Houston [lst Dist.] 1981,
no writ).

The brief submitted by the hazardous waste management
facility affected by the bill suggests two basic equal
protection arguments against the bill. First, that no
reasonable basis exists for regulating groundwater users
within the particular boundaries of the district because
of the relatively small size of the district in relation
to Anderson County and in relation to the major aquifer
underlying the district. The brief suggests that the
boundaries of the district were drawn to center around one
specific injection-well operation. Part of this argument
is that no reasonable basis exists for regulating
injection-well permit holders within the district and not
regulating other injection-well permit holders located
over the affected aquifer. The second basic equal
protection argument is that injection-well permit holders
as a class do not have sufficiently unique characteristics
as groundwater users to justify the different treatment
contemplated by section 12(c). The legislature, however,
apparently found some basis both for distinguishing
injection-well permit holders from other users of ground-
water and for defining the' particular area covered by the
district. At least one Texas case upheld the creation of
a subsidence district that did not include surrounding
areas containing wells that contributed to the subsidence.
See Beckendorff v. Harris ’ - Gal veston Coastal Subsidence
District, 558 S.W.2d 75 (Tex. Civ. APP. - Houston [14th
Honorable Terra1 R. Smith - Page 8 (JM-827)

Dist.] 1977), agf'd ner cur&@ 563 S.W.2d 239 (Tex.
1978). The court was persuaded that the greater severity
of the problem in the area of the district justified -,
different treatment. Whether the area covered by the
Anderson County Underground Water Conservation District is
such that it justifies different treatment and whether
injection-well permit holders have special characteristics
as groundwater users that affect underground water conser-
vation depend on complex questions of fact. The opinion
process was not designed to resolve fact questions.
Thus, this opinion cannot resolve your equal protection
question.

Your fourth question is whether the bill fails to
contain sufficient standards to guide the exercise of
authority delegated to the district in section 12. It is
well-established that the legislature may not delegate its
power to make law. See Tex. Const. art. III, 51; see also
Tex. Const. .art.
. II, 51; Houslna A thoritv of Citv of
as bothqgl 143 S.W.2d ;9 86 (Tex. 1940).
The legT;lature'may, ho&ever, delegate khe tasks of making
rules and of making determinations of fact to which
existing law and legislative policy are to apply so long
as the legislature provides standards to guide the
exercise of delegated powers . and
* duties. Housing
Authoritv of Citv of Dallas . Hia- 143 S.W.2d at
87. Such standards may be Broad when"cozditions must be
considered that cannot be investigated conveniently or
effectively by the legislature. Id.; State ex rel. Grimes
MUniCiDal Power
Committee v. Dallas
554 S.W.2d 924, 928
for delegation in
terms of unconstitutional vagueness under the federal
Constitution). Thus, this opinion cannot resolve your
equal protection question.

The specificity of standards required depends on the
nature of the power, the agency exercising the power, and
the subject matter covered. See Texas Anticuities
m, 554 S.W.2d at 927. In the Texas Anticuities
Committee case, the Texas Supreme Court found insufficient
standards in a statutory grant of authority to preserve
"buildings of historical interest" to justify denying a
permit to demolish certain buildings. 554 S.W.Zd at ?
927-28; see also Snann v. Citv of Dallas, 235 S.W. 513
(Tex. 1921).. In. contrast, in Housina Authority of Citv of
Dallas v. Hiaainbotham 143 S.W.2d at 86, the Texas
Supreme Court upheld 'the Housing Authorities Law, a

p. 3953
 Honorable Terra1 R. Smith - Page 9 (JM-827)

statute containing a list of general factors to guide the
authority in determining whether certain housing condi-
- tions were detrimental to the public safety and health.
The act, however, left to the discretion of the housing
authority the power to determine whether a public need for
housing improvements existed in a particular area. The
Supreme Court concluded that "taking into consideration
the varying conditions throughout the state to which the
law must apply, we conclude that the legislature has
furnished a sufficient guide for the housing authority."
143 S.W.2d at 87. Similarly, in State ex r e 1 . Grimes
al Power
the court of appeals upheld a
statute that granted an agency relatively broad powers to
provide for electric power. m V.T.C.S. art. 1435a.

Section 12 of the bill in question does not consti-
tute a standardless delegation. Subsections (a) and
(b) of section 12 are the only non-specific grants of
authority in section 12. Subsection (a) grants authority
to "prohibit the pumping or use of groundwater if the
district determines that the pumping would present an
unreasonable risk of pollution." What constitutes an
%nreasonable risk of pollution" in particular cases
P depends on conditions that cannot be conveniently or
effectively investigated by the legislature. Accordingly,
such standards are not overly broad. &2.9 Rousina Authority
Pf Cl y f Dallas . Hicram 143 S.W.2d at 87.
SubseEtioz (b) prozides "The diskrict may limit the
pumping of groundwater to uses determined by the board to
benefit the district." The phrase "benefit the district,"
when taken alone, appears overly broad. The phrase must,
however, be ConStNed in the context of article XVI,
section 59, and of the bill as a whole. The bill and the
constitutional provisions pursuant to which it was enacted
relate to the conservation of underground water in the
district. The phrase "benefit the district" refers to
conserving underground water resources. The steps
necessary to do so depend on the specific conditions
prevailing in the district -- conditions the legislature
cannot adequately anticipate. Additionally, section 5 of
the bill provides that, except to the extent of conflict
with the bill, the district shall be governed by chapter
52 of the Texas Water Code. See aenerallv Hidalao County
1
Water Co t
Countv, 134 S.W.2d 464 (Tex. Civ. App. - San Antonio 1939,
writ ref'd) (provisions of general law apply to such
districts when the provisions are not inconsistent with
special acts of their creation). The bill, by reference

p. 3954
Honorable Terra1 R. Smith - Page 10 (JM-827)

to chapter 52, contains ample standards to guide the
district's aCtiOnS. See. e.a,, Tex. Water Code 5552.151,
52.166, 52.169, 52.170. -7
Your fifth and final question is whether subsection
(c) of section 12 of the bill works a taking without
compensation in violation of article I, section 17, of the
Texas Constitution. Article I, section 17, of the Texas
Constitution provides, in part:

No person's property shall be taken,
damaged or destroyed for or applied to
public use without adequate compensation
being made, unless by the consent of such
person: and, when taken, except for the use
of the State, such compensation shall be
first made, or secured by a deposit of
money. . . .

&2R Citv f Colleae Station v. Turtle Rock Cornoration
680 S.W.2: 802 ITex. 1984). A Vakinal' results from aA
exercise of the 'government's eminent domain power. The
term, a *%aking,*1 ordinarily refers to an unconstitutional
taking, &, one without compensation.
?
Under certain circumstances, property may be appro-
priated constitutionally by government action without any
compensation as an exercise of the state's police power --
the power to protect the public health, safety, and
welfare. Attorney General Opinion JM-600 (1986) (and
cases cited therein). Traditional Vaking" law analysis
distinguishes the police power from the eminent domain
power by focusing on whether the government is preventing
a public harm as opposed to forcing a private party to
give property for a public benefit. The Texas Supreme
Court, however, holds that property may not be taken
without compensation under certain circumstances, even
in the exercise of the police power. Citv of Colleae
Station 680 S.W.2d at 804; Citv of Austin v. Teacfue, 570
S.W.2d $89, 391 (Tex. 1978); Attorney General Opinion
JM-294 (1984). The Texas Supreme' Court in Citv of Austin
v. Tacu rejected an arbitrary application of the
"poliZe p%er" -- "eminent domain" distinction in favor of
a balancing test of whether the public need outweighs the
private loss. 570 S.W.2d at 392-93. ?
Subsection (c) of section 12 authorizes the district
to "require persons holding a permit for an injection well
to purchase water from the district." The brief submitted

p. 3955
 Honorable Terra1 R. Smith - Page 11 ~-827)

,-,
by the hazardous waste management facility to be located
in the district contends that this provision requires
r injection-well permit holders to purchase water regardless
of whether they need it and regardless of the use to which
it will be put. We disagree. A reasonable reading of
subsection (c) of section 12 is that the district may
require injection-well permit holders to purchase water
from the district only for uses related to injection-well
operations. Even with this narrow construction, however,
the bill raises a serious constitutional question.

YOU suggest that requiring injection-well permit
holders who are landowners to purchase water from the
district rather than to obtain water by pumping the
groundwaterl from beneath their land works a taking
without compensation in violation of article I, section
17, of the Texas Constitution. Whether subsection (c) of
section 12 authorizes the district to effect a taking
depends on the extent of the power it grants to the
district, on the nature of landowners' rights to
groundwater beneath their land, and on the factual
circumstances surrounding the district's exercise of its
power.

The Texas Supreme Court recently reaffirmed that,
under Texas law, landowners have l'absolute ownership" of
percolating groundwater beneath their lands. Citv of
Sherman v. Public Utility Commission of Texas, 643 S.W.2d
681, 686 (Tex. 1983); uv of Comus Christi v. Citv of
E;Leasanton, 276 S.W.2d 798, 802 (Tex. 1955). A corollary
to this 1°absolute ownership" is the landowners ' right to
capture the groundwater beneath their lands. Id. The
right of landowners to groundwater beneath the:ir land is
an incident to their ownership of the land -- a part of
the land. Because groundwater is considered to be the
property of the overlying landowner,
.. .under the
_- common-law
rule, the landowner may withdraw it regardless of the
effect of the withdrawal on other wells or the

1. Throughout this opinion, the term lqgroundwaterlV
refers to percolating subsurface water as opposed to an
underground stream. The two categories of groundwater are
- subject to different legal standards. See Hutchins, The
Texas Law of Water iaht (1961); see also Tex.
Water Code 552.001 ~Vnd~;g:%~"waterV1 does not include
subterranean streams).

p. 3956
Honorable Terra1 R. Smith - Page 12 (JM-827)

. . of the use to which it is put. m
reasonableness Citv of
Cornus Christ1 v. Citv of Pleasanton I 276 S.W.2d at 801
(no common-law cause of action for waste): See also
ent Comnanv V. Smith-Southwest ,-Y
udustries. Inc. 576 S.W.2d 21, 29-30 (Tex. 1978)
(recognizing a cahse of action for subsidence only when
caused by negligent drilling or production of water well).

Although there are no Texas cases directly on point
for the issue at hand, the courts' treatment of the
government's termination or limitation of similar rights
is instructive. In u re Adiudrcation of the Water Riahts
of the Unner Guadalune SegRRnt of the Guamune River
w, 642 S.W.2d 438 (Tex. 1982), the Texas Supreme Court
held that the state of Texas may constitutionally limit
riparian claimants to the quantity of water actually
beneficially used during a test period established by
statute. In specific, the court held that the termina-
tion, after notice and upon reasonable terms, of riparian
owners I rights to use non-flood waters after the riparian
owner failed to use the right for a fixed number of years
is not a taking of property. 642 S.W.2d at 444-45. The
right of riparian owners is one of use only because the
riparian does not own the water that flows past his land.
642 S.W.2d at 644; see Wotl v. Bovd, 286 S.W. 458, 468
(Tex. 1926). The court acknowledged that riparian rights
are vested rights. 642 S.W.2d at 645. Nevertheless, the
court reasoned that, because riparian rights are only
usufructuary, there is no right to the non-use of water.
642 S.W.Zd at 445. Consequently, termination of a
purported "right of non-use" is not a taking. See also
Texas Water Riahts Commission v. Wriaht, 464 S.W.2d 642
(Tex. 1971) (reaching similar conclusion with regard to
appropriated water rights).

Unlike the riparian landowner's right to non-flood
waters, however, a landowner's wabsolute ownership" right
to groundwater may not be characterized so easily as
mere1 y "UsufNctuary." See Citv of Sherman V. Public
Utility Commission of Texax su13ra. Section 52.002 of
the code confirms landown&' private ownership of
groundwater:

Th ownershin and riahts of the owner of
the l&d and his lessees and assians in
?
underaround water are hereby recoanized, and
nothing in this code shall be construed as
depriving or divesting the owner or his
lessees and assigns of the ownership or

p. 3957
 Honorable Terra1 R. Smith - Page 13 m-827)

rights, subject to the rules promulgated by
a district under this chapter. (Emphasis
r added.)

Subsection (a) of section 52.157 grants districts the
power of eminent domain but provides, in subsection (b):

The power of eminent domain authorized in
this section may not be used for the
condemnation of land for the purpose of
acquiring rights to underground water or of
water or water rights.

These provisions do not directly limit the district
because general laws governing article XVI, section 59,
districts control such districts only when the general
laws are not inconsistent with the special acts creating
the districts. &i&la0 Countv WCID No. 1 Hidala
County, 134 S.W.2d at 467. These Water Code Vprovisionz
do, however, indicate that a statute could not be enacted
in Texas that has the direct effect of appropriating
groundwater without an eminent domain provision to prevent
a taking of private waters without just compensation and
C due process of law. As indicated, however, under certain
circumstances, property rights may be limited by govern-
ment action without compensation as an exercise of the
state's police power.

The law with regard to the state's regulation of oil
and gas provides a helpful analogy for groundwater
regulation because the common-law property rights are
similar. Texas recognizes landowners' ownership of oil
and gas beneath their land. Brm Hun&l Oil &
. *
0. I 83 S.W.2d 935, 9ZO (Gex. 193:). The
common-law rule recognized an unlimited right to capture
such oil and gas. Ig, In Brown v. Humble Oil & Refining
Co., 83 S.W.2d at 943-44, the Texas Supreme Court held
that state regulation of oil and gas production is not
unconstitutional merely because it operates as a restraint
on private property rights. Regulation of production to
prevent waste is within the state's police power and is
valid provided it is not exercised in an unreasonable or
arbitrary manner. Id. For similar reasons, the
district's reasonable regulation of groundwater production
would probably be upheld. See Casebier and Starley,
Proration of Ground Water in PROCEEDINGS OF WATER LAW
CONFERENCES 1956, at 167-68 (1956).

p. 3958
Honorable Terra1 R. Smith - Page 14 (JM-827)

Subsection (c) of section 12 apparently gives the
district the discretion to require that injection well
permit holders purchase their water from the district. No --Y
other groundwater districts have a provision like this.
Several districts, however, charge for their regulatory
actions on a water usage basis. In Parker v. El Paso
County Water I nrovement District No. 1 297 S.W. 737
742-43 (Tex. 19i7) the Texas Supreme Churt addressed A
riparian 1andowner:s claim that an article XVI, section
59, district lacked the legal authority to charge riparian
owners for the use of water from the Rio Grande River.
The district in question excavated ditches for irrigation
and drainage within its boundaries and assessed charges
for the use of the reclamation service and for the
construction and maintenance of its irrigation system.
The district's charges were apportioned in part on the
basis of water use. The court determined that this did
not constitute a taking because the district did not claim
any right to take the riparian owner's proportionate share
of riparian water. 297 S.W. at 742-43.

In contrast, subsection (c) of section 12 does not
merely assess a charge on the use of water to defray the
district's expenses. Subsection (c) purports to authorize
the district to require certain injection-well permit
holders to purchase water from the district without
specifying that the cost of the water will relate to the
district's expenses of operation. Nonetheless, without
knowing how the district is going to implement such
authority -- for example, how it will determine the charge
for such water -- this decision cannot determine the con-
stitutionality of this provision.

Article XVI, section 59(a), of the Texas Constitution
directs the legislature to pass laws to conserve the
state's natural resources. Brown v. u e Oil and Refin-
ina Co,, 83 S.W.2d at 941. As indicated, whether such
laws constitute a taking involves a reasonableness or
balancing test dependent upon the facts in each particular
case. Citv of Colleae Station, 680 S.W.Zd at 804: Citv of
Au tin v. Teaoue, 570 S.W.2d at 393. Accordingly, if the
diitrict's requirement that an injection-well permit
holder purchase water from the district in a particular
case bears a reasonable relationship to the conservation
of groundwater, such as to prevent its waste or pollution,
and if the benefit of those requirements to the public
outweighs the loss to the landowner, an unconstitutional
taking would not necessarily occur. Whether the
district's requirements that an injection-well permit
?

p. 3959
Honorable Terra1 R. Smith - Page 15 (JM-827)

holder purchase water from the district may thus be
constitutionally prohibited depends on factual determina-
tions beyond the scope of the opinion process.

SUMMARY

The bill creating the Anderson County
Underground Water Conservation District, S&R
Acts 1987, 70th Leg., ch. 992, at 6764, does
not violate, on its face, article III,
section 56, of the Texas Constitution as an
unauthorized local or special law. General
laws, such as chapter 52 of the Texas Water
Code, that govern article XVI, section 59,
districts apply to such districts only when
the general laws are not inconsistent with
the special acts creating the districts.

The Solid Waste Disposal Act, article
4477-7, V.T.C.S., and the bill are not on
their face in conflict. Whether the actual
application of particular rules and regula-
tions enacted by the district may conflict
with the Water Commission's exclusive
permitting authority under section 4(e)(6)
of article 4477-7 depends on the specific
rules and regulations and the facts sur-
rounding their application.

Different legal classifications are not
prohibited by the equal protection reguire-
ment of article I, section 3, of the Texas
Constitution if there exists a rational
basis for the classification. Whether the
area covered by the Anderson County Under-
ground Water Conservation District is such
that it justifies different treatment and
whether the persons particularly affected by
the bill creating the district have special
characteristics as groundwater users that
justify different treatment depend on
complex questions of fact. The opinion
process was not designed to adjudicate fact
questions.

The legislature'may delegate the task of
making rules and of making determinations of
fact to which existing law and legislative
policy are to apply so long as the

p. 3960
Honorable Terra1 R. Smith - Page 16 (JM-827)

legislature provides standards to guide the
exercise of delegated powers and duties.
The bill creating the district contains
sufficient standards for its delegation of
power.

Reasonable governmental regulation of
landowners' rights to groundwater is within
the state#s police power and would not, on
its face, constitute a taking without com-
pensation in violation of article I, section
17, of the Texas Constitution. Subsection
(c) of section 12 of the bill creating the
Anderson County Underground Water Conserva-
tion District authorizes the district to
deprive landowners who are injection-well
permit holders of the use of their ground-
water for injection-wells. If the reguire-
ments to purchase water from the district
bore a reasonable relationship to the con-
servation of groundwater, such as the pre-
vention of waste or pollution, an unconsti-
tutional taking would not necessarily
result. Determination of a taking involves
a balancing test dependent on the facts in
each particular case.

-J I M MATTOX
Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General

p. 3961