Case Information

*1 THEATTORNEY GENERAL

OF TEXAS AURTXN H. TEXAS

PRICE DANIEL ATTORNEY GENERAL

ldsrch 11, 1947 Board of Water Engineers Opinion No. V-82 State of Texes RG: Appropriated Water -

Austin, Texas

change of purpose snd PlSCG of use and ths watershed ques- QGntl~a~~i,:, tion.

The‘questions refeed are stated in your letter of February 26, 1947, as f01lorGn

"In 1936, the Boerd grented a permit to ths &SzoS Irrigation Company to change the UIG or G part or all of the i7atera epproprlat- ed under PeraLt No. 1040 to wnufacturing or cenwcial USG. The question rlaea - roplld t&G American Canal C~ompany bc aUthoPizGd under this 1936 permit to take and divGPt water for ~niclpal a,nd fndustriaJ uSe outside of the boundaries of the o~igiaal Permit No. 1040 without obtaining a permit from the Board; an@, itiPthGP, would thGp be permitted to car- Py thb WSter So approprfatGd OUtzidG the dmln- age aPea of the Braeos River."

We heve been furnished ulth the permit and a-z&d- nota tbeleto UndGP whi@h e&&e Amerfoan Cenal Cotspany (Suc- e&amp to B~zoa Valley Irrfgation Co~peny) is ROW uring 8-b vOt4P f3'OW thG bP4ZOG WiVOP, In 30 far as they 0411- aem thir 4pfaion, the rmr p aa PGflGctGd by &&G pbslpit,'#p mm&d, 8-p to be these: By ?anit lo. lOb3 3 drOul Septemb#r P7, 8x4 of Wmter Engfakerr grantGd to l!m, the

,t@e Br4zoa ,elley Irpigatfon Compaq tht right ‘s to appro~iate 99,932 WP4-rG4t or water p4r ~ldl r2~41 t&44 fkWpPPOpFg8t4d, VG~WP~ Or thG bW@ om RlVGPj l t 0 2WtG of div4prl.m t3ot to OX- .OOGd ^[685] cubfo fGGt PGP SSCOnd Of tin, @P a4 maah thepsof 88 U48y bb naoessery WhGB3 294nGPg4~f41- 1~ used fm the frrigetfon of 49,966 acrea ef land, loaabd Fn Fort Bend County, The pem9it *2 Board of Water Engineers - Page 2, V-82

ves issued subject to certeln egreements made between the Irrlgatlon Company and third persons; which agreements are not meterlal to this opinion.

On June 16, 1336, thG Board used~ .the following language in amending the origins1 p4rmit: "Now, thepefore, the &34Pd of water EwinGera for thG gt8tG or TGWS, does by these prGsGUt8 @'ant this GmGUdm5rit to PGnlt llo. 1040 hew- tofoP i88UGd to lb4koG V4114y Ir- Oway, and hG~OGrWth the ri@tioa Bnzos Vnllrf IxM.gatlon Compsnj may Gp-

propFiat and WG water, OP any por- tioa of auah umtG*, allocated by said

On Oaaeisbebel 18, 1941, ?ePmlt 1040 was sg~in amended. This amendment referred to thG BOBrd'a 4Otioa in $PGnting the origitvl pG=it snd to its action In gPsnting the l smwhaent at Saw 16, 1936 "to pemalt G4ld eapmly te rrr? a #e&him ar 811 of the waterm r0r mrnufacturi~.and rysp*oprlrted the+WtideP eomiaWcla1 9u~poaea" and then authorlasd %iW Bncoa VaZleJr Irrigation Company "to Ch8* the p$aai~ of use 0r G portion or all 0r thG water pelttre3 to be 49propriated under arid PO it MO. z@ko r0z,r -0 purpoaa 0f irrig4ttw It*i%d I@oRt& QU$8idG the 44351 84mo of ltRiGPShR$?' $& ~O(RIF$I, @4lVG8tOti, Jt8PPi8 #arf I*% mid ~cwatt~tt, lti0isg 5;115 l CPGI 0r lrnd dea@rib#d tr the ark tar1 pmwlt vithln the mamaa Bfrer wa04*llh J still to bG iP- rigated out of the o~iglnal pproprlrtion.

OnSq 28 f942 the Board agein amend- ,~d mmit 0. lo 0, iha4 GrrGat 0r whiah warn to .$G permit th* iip$ attoa cowany to irri GotaId &he wrtwa Gd 3,328 0r thG .‘5,11 8GFG8 ii

'remaining la thG watarahsd under the 9FioP 4tGGndm4nt, and lorvfag 1,787 8Cr~a of the original penit still within the Bnzoa River wet&rGhedL This amea4axtnt is aimlls~ in fo@E *3 .

Board of Wster Engineers - Page 3, V-82

to the amendment of October 18, 1941.

The question of the Boclrd's jurisdiction 4rml power to regulete and control change of use sad plsco *i use of water which has been appropriated sad put to bmao- ficlsl us4 under permits issued by ths Board, h4d not bwen considered by the courts thta Sixto until the owe of of Clark v. Briecoe Irrigetioa Comprray, decldod F4brwm 19, 1947, by the Austin Court of Civil AFperls in Opinion Ho. 9588, aad not yet rep4rteds

The f4cts of the Clark case sre these, The per- mit held by Brlscoe Irrigation Compsny authorlzsd approprie- tioa of 75,000 acre-fe& per annum for irrigation, mining and mllnicipa 1 US4 e Of this amount, 50,000 acre-feet ~4s 4llocet- ed for the purpose of irrigation, the remaining 25,000 4cre feet being ellocated for mining and municipal purposes. The 25,000 acre-feet permitted for mining end mualc~pa1 use was not involved slaae it was never beaeficlally used 48 re- quired to coeplete the appropriation theroof. The 50,000 acre-feet allocated for irrigation was btneficially used for the length of time required by Article 7592, V.R.C.S., 40 as to vest the title ppovfded for in thst article. Upon the Board’s denial of an application to amend the permit to substitute other speaffied lends f,or those desigaated la t& permit, and to change the purpose of use 80 aa to iaClUa4 m+nFag, manufacturing and wafeipal, the irrigation oompsay sought a declaratory judgment to the effect that it had the inherent right, growing out of the right vested by rea- son of Article 7592, to change the purpose of us4 of the water from irrlgertion to other lawful uses, such right be- iag f’pee of any regulation or control by the Board ao long aa use wal 8 beneffcfel one authorized by law and did not result fn an Increased eppr4prirtion or t4kFng 4f 4 greater quentitg of water then was authorized by the p4klt, or Impair the vested rights of other appropriators.

After reviewing the aoaservatien amendment to th4 Coartltution (Artlole XVI, Sea. 59-a) and the st8tUt4s d441- iw vlth the aubjwt, the Court expressed 3.ts oplal4n ta the f4'bl4wiag langwgrs

YQeae statutory provisions cl44rly Invest the BwrU vith the power and duty to determine whether the wol for whloh th4 II)- plicatioa $8 srde moat the strtutory 4hjea- tiv4s, including that of befag in the public interest. Nsceasarfly the determinetloa of that lsruo iwoLves the exePci44 of 61 Sewad

Boerd of Water Eagiaeers - Page 4, V,82

and reasonable discretion. Nor is it aoa- tended thet the Board bea,not such discre- Mz in peasing upon 4a origia41 epplloa-

e

"Bvery cawidentlon for vesting such origiael discretion in the Borrd applies with squel foiwe for it4 exercise in 0184 of change of purpose OF pl800 of use, We there- fore think there is impliait in these provi- sions of our laws, coastltutioasl and statu- tory, a veatiaC; in the Board of the continuing duty of suparviaion over the distribution and i use of the publio watera of the State ao as to

sea that the oonntitutioael and etstutory ob- jectlvea sre ottrined, and CamyLng with it the requirement thrt aay aubeteatial .a oh4nge In uae or plroe Qr use a& ruthorlzed in the origi- ual permlt,,aust Moe the approval of the Board.

Any other construction might easily result in defeat or' airaumveatiea of the objootives of the conservation laws.

n . . . “If4 hold that authority of the Boerd is essential to authorize a ohaage in us4 or place of use from thet authorized in per- mit."

B&used on Clerk Y. Briscoe Irrigation Compeay, sup14, it la our opinion that the American Ceael Cwpsay msy not use the water appropriated by it under Its present permit for muaioipsl purposes without the uauel application ~,. to the Board..

We are uaebls to se4 a,dlatFaction as regards the c'henge f'rox e manuracturing end oommeroiel ua4 as stated in the psrmit to the Fndustrial ~44 referred te in your letter. It is provided in Artloli 7’170, V,A.C.3,, tliet "the ,eppro- prietlon. of vater aust be for irrigation, mining, mllllag, manufacturing, the developmsnt of power, the construction . and operation of waterworks for cities sad towns, or for Stock Mlsing." And, in fixing priorltisa between usea, Article 7471, V.A.C.S., after grsntiag Ho. 1 priority to domestic. and pluaiclpol use, gives No, 2 priority to msnu- facturiag, whioh is described as, "weter to be used in ,, processes designsted to oonvart materiels of e lower order

of value into rorp heviag greater usability and commer4ial *5 Boer3 of Ueter Engineers - Page 5, V-82

value end to include w8ter necessary for the d6velop- atent of electric power by means ethsr than hgdroelec- No prwision fa made in the statutes rel4tLve trio.” to industrial use es such. For the pwpoee of this opinion lndustrie2, menufaeturhg anb commevsypal will be considered 8s synonymous 4nd me8n the seme thing as the msnufacturing use referred to Zn the st4tute.8.

The situation as regards the wnufscturlng use under conslderutian here Is distlngulsh4ble from that lnvolved In the Clerk case in tw reap6ots: (1) Here, the original plrrmit haa alrewlg been em6nd6d by the BM?rd t0 @&low 8 #8nuf8Cturing use of 811 0r sny porticln of the wster allocated to the original pezwrllllt. In the Clark ers6, this erendment te the permit u&a sought snd dented. (9) Although a4t m4terMl to t& decishm, the frets there shaw thet 4 44rMln grew+ tion of ths total slloa8tian ~8s set @ride to mitirq and mwieipl while the xwmalnder ~8s elloarted t* ir- rigao16m. Hors the total 4llaiostion is for lcrigstiem, aad oawoPcrcia1. Wnuf8crturtn.g

tbfarence l.s nov made to our Opinion No. O- 3397, addreesed to the Board of Water &&gineers. A- mong other problewv, th0 oploion was ooncemed vlth (1) the right of perwbttee to I%%% ,'te land other tbrrn that d6wribed in bF4 pw?Itit, and 8) the authority 0r T th8 Board to gr4nt 8n em6ndment t0 such permit to ellow of such other land. me opinion conclude.8

irrigation that peraittee'e i,rrigetion use Ls restriated to the Land desor.U#ed in swh permit and thet a ch46ge of piece of ua6 Is net parurritted withgrat the suthorlty of the Beard (1 W6 quote fr0m the opinion as PolloWs:

"However B aereful resdlng of the Texas dda&g with app%?opriatioa of w4ter Statutes reveals 8 unifws Znsistenae by the Legbslsi ture that if the o&~rop:riartsd Wat6r is to be umd for I~rlgiItttcn pur~omcm, the land to be lrrigsted must be described in the oorioura required to perfect the spprogrti- inrtmentm tion. Ua, tind thtr requlr6ment in the stotuto oovrring the aentents of the 4pplloation, t&It covering the contents of the not104 of hesring on the permft, and in the statute de8ling,with the contents of the permit itself. The Legis- lature has set out no such requirementa wh4re the voter I.4 to be used for other purposes.

Board of Water Engineers - Pege 6, v-82

"If it vas the leglslstive intentthat an sppropristor of water for lrrlgatlon pur- poses should be free to us6 suoh Water to lrrlgatesny lend he chose, ve o8n conceive of no reason for requiring th8t the land be described in each of these'enactments. If It vas intended that the appropriator could ignore the fsct th8t a particular tr8ct of land ~88 described in his permit, it must be es@UPfed th8t the Legisleture h8s required a uaelesa thing e Under well recognized rules o? statute q construction we can m8ke no auch assumption.

At first glance, the result to be reached here, based on Opinion Bo, O-3397, would be that since the Legls- laturo h8s uot reguired 8 desoription of place of use of the non-irrigating statutory uses in the original applica- tion 8nd permit, chenges in the place of such use without further eppliccrtlon to the Board must follow as a matter d Cour8e. Nor st first glance, does Clark v. Briscoe Irrlga-' tion Company, suprs, seem to go so~far as to require the Boerd's permission to chenge vhen the use is already suthc- ized by permit. lfOVeV4r, no logical re8son exists for dla- tinguishing change of piece of use 8s such, from ohange of place of use 8s betveep the various uses authorized by statute. We interpretiC1ark.v. Brlscoe Irrigation Com- p8ny 8s holding that eppllcation to the Boerd is required to ch8nge the place of use a8 such and for all permitt8d purposes and not for irrigation alone. A0 good rea.son ex- ists why pelllrittee should be confined to one area in con- ducting irrigation, absent suthorizetion to change by the Board, and at the same time be alloved to exercise the other uses covered by his permit at any place or places he desires. Here wster to be used in either case is th6 s5me Vat4P. Cen it logically be restricted in change for irrigation, but not manufacturing? We think not.

Clark v. hy2aaea frrlgation Company has lnferentielly mov- ed the law ef appropriation in this State over the void for ppllo~atloa for lait by our statutes in nmt prevldi change OS ua4 em3 pla00 or uaa, and he "continuing duty T

of 8uparvIaien over ths diatrlbutlon and use of the public uatopa oh the Itata 10 86 to see that the constitutions1 and at8tuterg objectives ar6 attained," accorded the Boald 'by the opinion surely must relate to chsnge of place of use for all purposes and not for irrigation alone. We kn6v of no other result vhioh would not in the word8 of . - Board of Water Engineers - Page 7, V-82

th8 opinion “result in defeat or clruumyentlon OS th8 objectives of the conservation law”, 88 th8t law has be8a construed and carried forward by that case. We conaidep Clark v. Briacoe Irrlgrtlon,Caop8nj a8 contFolll.ng on this aub jeot .

We think it unS@tunate that the Board has not,, and In our opl~ion it r*, under its rsgulatory power8, Art. 7531, V.A.C.S., rd under th8 last atatem8Ilt of Article 7515, V.A.C.I., pequ3.m dealgmticm of the plaoo of the use of non-i~~ig8tL~ m8es. Article 7515, Y .A 4.8.; provide8 aa follewrr

“Bvery pemit lasud by the Board, uudesr the provisions of thla cbrpter, shall bo in wrltl@g, 8tteatul by the 0081 of arid Word and shall contain aubstarltiatly the followlngr The name of the applioant ta wham Issued; the d8te of the isauanca thereof; the date of the fll- ing of the original eppllcotion thersior In the offloe of th8 B@ard; the use or pur 0110 for which the appropriation of water la to { e ude; the amount or voluma of water authorla8d to be appropriated; a general description 8f ths source of supply Srom whiah the appro]Pri8tiQn is proposed to be mrde; and, ii such 8ppropriO- tion IS for irrigation, a daacrlption Snd atate- slant of the approxirto are0 OS the 18nd8 to be.

In this c annaction, we rat ommend lor your future ude 8 form of permit which allocat88 a 8p0ciric quantity of watsr to each permitted use in order that permittee ~87 show by ectual b8neficFal user th8ylf tka w8t8r to which k8 is entitled undst! his p8lwit ha8 ripsand into the tilt18 vested by reason of Artiolo 75!XZ2. It seems to ua tlvlt this type OS pezrlalt designating the place of use -of all permitted u8eai would aaalat geu in Carryingout the ng- ulrtory gbligrtion whfoh you hoe mbder 8tstutes and und8r the construotion given them by clrrk v. Bidscoe Ir- rlga~tion Ccmpaay, supra.

Th8 qlaeatZcm nw rriara 88 to pemittee’r rZ&t to use the water under its p8nLt id ynuf88t~lag pur- t;te;oiLyond the w8teuh8d without tuur2h8r mthoritf irou

. Ih8 l ~OQdHPt8 0s @QtQhr 18, l$?h, 8?kd my 28, *8 .

Board of Water Engineers - Page 8, v-82

1942, olearly carry the irrigation use on all except 1.787 acrea beyond the watershed. Tha language which is easentiellg the same in each of the 8eendments granting this authority, is quoted as Sollows:

"l?OW,TliBRBFORE, the Board of Water Engineers for 8t8te of Texas, does by t&888 INSent QltMT the Authority and the Right, subjeat te 811 teru8, rgpeementa, conditlona and reatriotlona contained fn Permit Ho, 1040, unto the Brazes VIlley Irrigation Uoinpany to change its Plaoe of Use of the water, for irriga- tion under said Pepplit so. 1040 from the lands origfnelly described fn srld permit to the irrig8tlon of the follcOlLng deaaribed lands, towltr

“ft iS expressly provided th8t 811 OS the rights, tezms, agreements, conditions and restpictfons contained in Permft No.

1040 shall remain fn full force and effect and the Authority 8nd right to change the Plaae OS 086 herefn granted i8 granted sub- ject to all auah rights, terms, agreements, *. condition and restrfbtfons.

“It is further exp~sss~y provided that the granting OS this Right and Authority shall not in any way fnarease, nap decrease, the Permittee’s exfstfng Pfghts under said Pemit Hoa 1040, except that PermIttee niay exercise 4ta Irrigation Fights OR the lands hereinbeiore described (88 Trest A and Tr8ct B), and shall not irrigate otBeqP l8nds than thoae hereinafter deacrfbed unleaa 18wSully permitted to dc 10.”

Thl6 lrnguage is preceded by sealtations con- cornin the peetfoue action of the Beard fn granting the origin81 per&?, and in gnating the sedment authorizing we SOP wnniaoturfng purpoasa, the applloat~on by the lP- rtfgtien carpmy to frrif)te b8yoad the wrtorahed, the helrfng on snah 8ppliarth~i rnd th8 fLDdf0g that a chrnge in place of u8e would not Polltilt in on fna%wse% r$pmPir- . . . .(~ tlon OF fnterfere with vested rights, *9 ,.

Boerd or Weiyr 1Cn(ptwaw - Peg8 9, Vn82

We heve exerined the two wlt8Mhed rppliertlolu in question end neither mekes apfU,c~tloa to ~?ewwe the v8teP8h8d. mrnuf8oturing we beyoti

our 8t8tut88 on thL8 rubjeat rtrsss th8t the weter itself 18 t&8 818ment upon vhZoh the wrterrhed restriction 18 pl8ced. &Hi018 7589, V.A,O.S., makes it unlawful to dfvept vetrr beytmd tlw vrterehed end Article 7590, V.A,O.S,, pXovide8 8 method by !fhiCh w8ter uy be diverted upeu p~op8r appllcrtion 8nd h88rigg. The statutce provide 8s fol.lcvs:

Brtlale 7589- 'It Sh8li be UWWiUi iQP WY pW#oll, 88- soci,etiQQ of p@JrIow, oor)slat;cln, vet(rp ir- proveoent or ixQQ8tloa district te take osI divert say of the vetep of th8 oniiarry flow, underflow, or storm flev of eny stCe8m, v8ter course, or vstershbd, in thi8 9tste Into any othw n8twl 8tMm, v8teP oouree 01 w8tesrh8d, ts t&8 prejksdloe of 8ay pw*sn or, propwty rit- ueted withtn ths wstexwwd fwa Mioh auoh vlter 18 propw~ed to be t8k8n 6~ BLverted."

"Before eny person, es4ociatioa of per80118, oorpor8tIoa, weter improvement or l~lgation district ShOll t8k8 8ny v8te2' iroll ear Mtur81 StreDm, V8ter CQUZ’80, or vrtwahsd in tht8 i3t8te Into 8a) other w8terrhed, arUCh perI)on, l O8wi8- tion of per8on8, ao~e*ltlon, v8teF iuprovement . or irrlgrtlon dirtrlct ah811 erke rppliortioa to

the Bo8H oh W8ter Xnglneer8 for 8 perrft 80 88 to take OP dtvert swh vdlt8F8, and no such pm- mit shell be ir8uad by the Barrd nntll 8fter full, hearing before arid Beard 88 to the ri@ts to be rffectivd thereby, end owh herring ah811 bs hsld~ end noti. thereof giVen 8t 8UOh ti@O 8ad 8uOk pl.ece, in 8Uch aode and m8nner 8s the &Mld UJ prescribe; end from ny decision of the Bo8ld eny appeal my be t8keQ to the distriot court of county in which such diversion is proposed to be made, in the mode 8nd m8nneP prescribed in this chapter for other 'appea18 from the de- .- cision of the Board."

Bo8rd of Water Engineers - Page 10, v-82

Although the Boardas intention as expressed in the two watershed amendments is not entirely clear, we in- terpret these amendments as necessarily carrying the water beyond the watershed for all permitted purposes and not for irrigation alone, We think that all uses authorized by a permit move with the water beyond the watershed and see no logic In requiring permittee to do that which he has done already, namely, reapply and be re-permitted to move ex- actly the same water beyond the watershed. By this, we do not me8n th8t under a permit allocating specific quanti- ties of water to specific usea, that a permit to remove water 8lloc8ted to one of the permitted uses will move the weter 8llocDtOd to 8 permitted use not involved in the rerovrl application, That is not the situation involved here. XW d0 we ne8n t0 itier th8t this in any wry linit8 what ha8 been heretofore said a8 to chenge of u8e and pl8ce of use. Articles 7589 and 7590 (supzu) rel8te only to removing wrter beyond the watershed and oreste no re- striation on u8e OF place of u8e. These reatrietion8 88 previded by st8tute, and es carried forward by Clark v. Brircoe Irrfgtfon Coaspsny (supra), apply, in our opin- ion, generelly# rnd are not confined to use within the wetershed. What we have said previously on this subject of change applies as well beyond the watershed.

411 conclusions reached herein relating to chrnge OS use and place of use are subject to the general rule prohibiting such changes when the amount of appropriated wster fs increased, or when prior vested rights are lnjur- ed. These ostters are for your cot~ideratlon at the he8r- ing on the application for change.

SUMMARY Under a permit granted by the Board of Water Engineers authorfzfng the appropriation of water for irrigation purposes, and amend- ments thereto euthorfsfng the use of a por- tion or all of the water so appropriated for manufacturing and commercial purpo8es, and permitting the removal of the bulk of the water beyond the watershed for use in lrrf- gatfng certain described lands; permittee must apply to the Board for a permit to use the ap- prfeted waters for municipal purposes and for a permit to change the place of use for manu- *11 . . .

Board Of tiater Engi~~f~r~ - PIge 11, v-82

fscturingg and coaamemial pufpo8ea, both whit&- in and without the vatershed~

Your8 very truly AT!P~RNEYOERERALOF !FXAB - HDP/bt/Ih

APPROVED: March 11, 1947