Untitled Texas Attorney General Opinion

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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