Case Information
*1 OF TEXAS
AUSTIN. Tncz+as 78711 ,----.---- _ The Honorable Hugh C. Yantia,Jr.
Executive Director
Texas Water Quality Board Re: Authority bf cities to estab- 314 W. 11th Street lish water pollution con&L Austin, Texas 78701 programs under 5 21.357, Texas
Water Code Dear Mr. Yantis:
You have asked three questions which relate to § 21.357, Texu Water Code. That eection provides:
.“(a) Every city in thjr rtate having a population of 5,000 or more inhabitants shall, and any city of this state may, establirh a water pollution control and abatement program the city. The city ohall employ or retain an adequate number of personnel, on either a part-time or full-time basis as the needs and circumetances of the city may require, who by virtue of their training or experience are qualified
the water pollution control and abatement functions required to enable the city to carry out its duties and responsibilities under this section.
l!(b) The water pollution control and abatement program of a city shall encompass the entire city and may include areas within its extraterritorial jurisdic- tion which in the judgment of the city should be included to enable the city to achieve&e objectives of the city for the area within its territorial The city ahall include in the program the services and functions which, in the judgment of the city or as may be reasonably re- quired by the board, will provide effective water pollu- tion control and abatement for the city, including the following services and functions:
. -, [*] .
The Honorable Hugh C. Yantia, Jr., page 2 (H-304)
“(1) the development and maintenance of an inventory of a11 significant waste discharges into or adjacent to the water within the city and, where the city so elects, within the extraterritorial juris- diction of the city, without regard to whether or not the discharges are authorized by the board: “(2) the regular monitoring of all significant waste discharges included in the inventory prepared pursuant to Subdivision (1) of this subs’ection: “(3) the collecting of samples and the conduct- ing of periodic inspections and tests of the waste discharges being monit0re.d to determine whether the discharges are being conducted in compliance with this chapter and any applicable permits, orders or regulations of the board, and whether they should be covered by a permit from the board; “(4) in cooperation with the board, a procedure for obtaining compliance by the waste dischargerr being monitored, including where necessary the use of legal enforcement proceedings; and “(5) the development and execution of reason- able and realistic plans controlling and abating pollution’ or potential pollution resulting from gener- alized discharges of waste which are not traceable such a,s storm sewer discharges to a specific source, and urban r’unoff from rainwater. ” Your first two questions are:
“Fiqet, does Section 21.357 of the Texas Water Code confer upon cities of this state any powers which are not otherwise given them by law? Second, does this section give cities any power to control activities out- side of the city limits but within the extraterritorial jurirdiction of these cities? ” *3 .,. I
c
The Honorable Hugh C. Yantir, Jr., page 3 ’ (H-304)
Although it is clear that there are other source0 of power for a city’s exercise of some of the duties outlined in 5~216 357, both within the city limits, and within the city’s extraterritorial jurisdiction, e.,g. ; $ 5 21.351, 21.353 and 21.354, Texas Water Code; Articlea 970a, 1015 and 1175. Vernon’s Texas Civil Statutes; Swinney v. City of San Antonio, ~483 S. W. 2d 556 (Tex. Civ. App. , San Antonio, 1971, no writ), we believe a city’s authority is not Whatever authority is necessary to necessarily limited to those statutes. perform the actions permitted or required under 5 21.357 is necessarily implied whether nor not that authority may .be granted independently by other cf., Davis v. City of Taylor, 67 S. W. 2d 1033 ~(Tex. 1934); Foster statutes. v. City of Waco, 255 S. W. 1104 (Tex. 1923); Hayden v. City of Houston, 305 S. W. 2d 798 ,(Tex.~Civ.App., Fort Woith, 1957, writ ref’d, n. r. e.). Of course, a city’s authority would not extend to the point of setting water quality $ § 21.006, 21.075, 21. 257, Texas Water Code. standards.
Therefore, in answer to firat and second questions, it is our opinion that, irre,spective of the power conferred by other statutes, a city may exercise the power necessary the activities permitted and required by s 21.357 of the Water Code.
Your third question is:
“Can this section be relied upon by cities to furnish a basis for the regulation of private sewage facilities? If so, by use of this authority can cities use the power conferred by Section 21.357 to regulate private sewage located outside the city limits, but within the jurisdiction of the city? ” You indicate that your question is prompted by a belief that 5 $ 21.083 and 21.084, Texas Water Code, provide an exclusive means of regulating pri- vate sewage Section 21.083.creates a means of regulation by the board. A public hearing is required as is consultation with the State Commis- eloner oi Health. The Board ie permitted to establish a licensing system and may delegate the licensing function to local governments. Section 21.084 gives similar authority to counties. *4 (H-3041
The Honorable Hugh C. Yantis, Jr., page 4 Our analysis of first two questions requires an affirmative The authority given cities under $21.357 response to your third inquiry. and other statutes is sufficiently broad to permit regulation of private sewage Sections 21.083 and 21.084 do nQt expressly prohibit local regulation. ct., Swinney v. Citv of San Antonio, supra.
SUMMARY A city has broad powers to establish water pollution control programs under 5 21.357, Texas Water Code. These powers can include regulation of private sewage in thd .oity and in its
Vqry truly yours, DAVID M. KENDALL, Chairman
Opinion Committee