Case Information
*1 ^.
The Attorney General of Texas December 29, 1961
MARK WHITE
Attorney General Honorable Mike Driscoll~ Opinion No. MW-419
Supreme Court Building Harris County Attorney P. 0. Box 12546 1001 Preston, Suite 634 Re: Authority of a county Austin, TX. 76711 Houston, Texas 77002 prohibit discharge 5121475.2501 Telex 9101874.1367 effluent into a county Te,ecc,pIer 51214750266 roadside ditch 1607 Main St.. Suite 1400 Dallas, TX. 75201 [21417428944]
Dear Mr. Driscoll: You have requested the opinion this office on the following
question:
4624 Alberta Ave., SUite 160 Does Harris County have the authority under law to El Paso, TX. 76305 prohibit the discharge of sewage plant effluent 913l5333464 into a county roadside ditch?
1220 Dallas Ave.. Suite 202 You inform us that a privately owned sewage plant is discharging Houston. TX. 77002 effluent roadside without county 713165c-m66 permission. The Texas Constitution gives the county
courts “such powers and jurisdiction over all county business, as is 606 Broadway, Suite 312 conferred by this Constitution and the laws of the State, or as may be Lubbock. TX. 76401 hereafter prescribed.” Art. V, 518. The counties have no powers or duties other than those impliedly conferred Canales v. Laughlin, 214 S.W.Zd 451 (Tex.
constitution and statutes. 4(309 N. Tenth. Suite B MeAllen. TX. 76601 cities, of Harris County v. Kaiser, 1948) ; Attorney counties have no general police General Opinion H-374 23 S.W. 2d 840 (Tex. Civ. App. - Galveston power. Comrtissioners’ Unlike home rule Court ref’d); Harper v. Lindsay, 454 F. Supp. 597 (S.D. Tex. 1978). The proper approach to determine whether the statutes 200 Main Plaza, Suite 400 San Anlon~o. TX. 76205 expressiy or by necessary implication provide the requisite 5121225-4191 to the commissioners court. Canales v. Laughlin, s. Article 2351 provides the general grant of power to the An Equal OppOrtunityI courts powers are found elsewhere. Aftirmative Action Employer Neither article 2351 nor any other statute
specifically authorizes the county to promulgate any sort of blanket of treated Into county The Texas Water Code sets out the authority for the regulation of sewage plant and provides the Texas *2 . is the administrative agency with Department of Water Resources regulatory authority over water quality In the state. Water Code, 126.001 et. seq. The Texas Water Coormission is the agency that issues permits for of waste into or adjacent to water in the state. Id. 26.027. It has been suggested that various Water Code provisionsight authorize a county to regulate discharges into county roadside ditches.
The Water Code provides that a county commissioners court may use the same procedures as the Texas Water Commission issuing permits facilities so as to abate or prevent pollution injury to public health. Id. $26.032. “Private facilities” is defined by section 26.031x include a number of specific types of sewage facilities “and all other facilities, systems, and methods used for the disposal of sewage other than disposal systems operated under a permit issued [Water] [C]ommlssion.” Since the Water Commission has issued a discharge permit for the sewage plant the county may not require a permit under the Water Code. question,
The Water Code authorizes government which owns or operates a disposal system to enact and enforce rules, ordinances, or resolutions to control and regulate the type, character, orders, and quality of waste which may be discharged to the system so as to protect the maintenance personnel and to prevent unreasonable adverse Id. 26.176(a). “Disposal system” is effects on the disposal system. defined as any system for disposiKof waste, including sewer systems This provision and treatment facilities. Id. §26.001(16).
Water Code addresses pretreatment of waste enters treatment systems and does not cover discharges treated sewage effluent county roadside ditches.
Harris County Flood Control District is coterminous with Harris County and is governed by the Harris County Commissioners Court. Acts 1937. 45th Leg., ch. 360, Il. Among the enumerated purposes of the creation of the district is “the control, storing, preservation.
distribution of the storm and flood waters” Id. The district has the power “to regulate the flow of surface and flood waters.” Id. §§I, The Harris County Flood Control District is 2(e).
authorized to pass resolutions establishing building setback lines along any waterway vithin the boundaries of the district. Acts 1963, ch. 118 at 318. We believe the absence 58th Leg., authority to prohibit discharges into drainage ditches lndica.tes legislature did not intend the district to have that power. court, its flood control not have express implied authority to prohibit discharges drainage ditches. Likewise, if the subject is within drainage there no district, court to prohibit discharges Into a
district’s See Tex. Water Code 556.001 et. seq.
The has the to require abatement of health-related nuisances. 4477-l. 53. One of the statutorily recognized nuisances is “[a]ny collection of water in which mosquitoes are breeding within limits of any city, town or village.” 1n your opinion request you state the pooling condition In this case breeds mosquitoes and is a health hazard. The question of whether of effluent creates a nuisance is a question fact. The procedure to be followed in the abatement of health-related nuisances by county health authorities Is set out in the statute. Id. 53.
In addition to exercising applicable Harris The County has the right to prevent interference its easement. easement held by Harris County necessarily carries with it the right to use and control as much of the easement as may be reasonably needed for the granted purposes. Hill Farm, Inc. v. Hill County, 436 S.W.Zd 320 (Tex. 1969). The fact that the use contemplated at the time the easement was granted was use as a public road in no way precludes different use as an avenue of drainage at the present time. Id. at landowner has the right to use land subject rthe easement in a manner that does not affect or impair the enjoyment of Id. at 323; Hale County v. Davis, 572 S.W.Zd 63, the public easement. (Tex. Civ. App. -Amarillo ref’d n.r.e.); Pittman v. City of Amarillo, 598 S.W.Zd 941, 944 (Tex. Civ. App. - Amarillo 1980, writ ref’d n.r.e.). See also Jefferson County Drainage District No. 6 v. Southwell, - Beaumont 1930, writ ref’d) (district was not entitled to injunctive relief because the dam constructed landowner across the drainage in no way interfered with the complete and adequate drainage of water). Whether or not the landowner’s use of the ditch for sewage effluent actually constitutes an encroachment on county’s easement is again question of fact.
The issuance of a permit by the Texas Water Commission does not preclude Harris County from pursuing the aforementioned remedies. Section the Water Code provides that “[nlothing this chapter affects the right of any private corporation or individual pursue any common-law remedy to abate a condition of pollution or other nuisance to recover damages.” In accordance with section 26.133, a standard provision of water commission permits states “[t]he issuance of this permit does not convey any property rights either real or personal property. or any exclusive privileges, nor it authorize any injury or any invasion personal rights nor any infringement of State, laws or regulations; nor does it obviate the necessity of obtaining Federal or local assent required by law for the permitted discharge.” The fact that a discharger has been granted a discharge permit will not defeat an action for damages the resulting pollution. Atlas Chemical Industries, Inc. v. Anderson,
Texarkana 1974). aff'd. 524 S.W.Zd 681 (Tex. 1975).
SUMMARY Harris County has no authority to institute blanket of sewage county ditches. The county may prevent Interference its easement cO*O" law remedies nuisance abatement proceedings.
Attorney General of Texas JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Susan Plettman
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Tim Brown
Rick Gilpin
Jim Moellinger
Susan Plettman