Untitled Texas Attorney General Opinion ( 1978 )

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The Attorney General of Texas
June 7, 1978
JOHN L. HILL
Attorney General
Mr. Harvey Davis Opinion No. H- 1177
Executive Director
Texas Department of Water Resources Re: Jurisdiction of Texas Water
1700 N. Congress Avenue Commission regarding approval
Austin, Texas of plans for the construction of
drainage facilities in Harris
County Flood Control District.
Dear Mr. Davis:
You ask whether plans for a drainage project which have been approved
by the Harris County Flood Control District must also be approved by the
Texas Water Commission pursuant to section 16.238 of the Water Code. The
drainage projects you inquire about are to be constructed by entities other
than the Harris County Flood Control District.
Section 16.238 of the Water Code provides in part:
(a) No person, corporation, or levee improvement
district may construct, attempt to construct, cause to
be constructed, maintain, or cause to be maintained
any levee or other such improvement on, along, or near
any stream of this state that is subject to floods,
freshets, or overflows so as to control, regulate, or
otherwise change the floodwater of the stream without
first obtaining approval of the plans by the com-
mission.
In Attorney General Opinion H-328 (1974) we considered whether this
provision applied to the construction of lateral drainage facilities. We stated
as follows:
Only those levees or improvements need be approved
which are constructed, or maintained on, along or near
one of the described streams ‘so as to control,
regulate, or otherwise change the flood water of the
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Mr. Harvey Davis - Page 2 (H-1177)
stream.’ Whether . . . this requirement extends to the
construction or improvement of . . . lateral drainage
facilities depends on the facts in a given situation, and
resolution of this question should at least initially be made
by the [Water Development] Board subject to judicial
review. Security State Bank of San Juan v. State, 169 S.W.2d
554 (Tex. Civ. App. - Austin 1943, err. ref’d., w.o.m.)
Attorney General Opinion H-328 (1974). We concluded that the plans for lateral
drainage facilities should be submitted to the Board for its determination of the
relevant fact questions.
In Attorney General Opinion H-328 we also determined that the Harris
County Flood Control District was subject to the requirements of section 16.238.
The Legislature subsequently enacted the following amendment to the statute
creating the Harris County Flood Control District:
3A. Projects proposed to be constructed by the Harris
County Flood Control District, other than levees and
structures related to levees, shall be under the control of
the Commissioners Court acting as the governing board for
the District. The findings of the Commissioners Court as to
the plan of work, the necessity, the location, and the type of
improvement of a project covered by this section shall he
final and not subject to review.
Acts 1975, 64th Leg., ch. 593, at 1877. We considered this amendment in Attorney
General Opinion H-915 (1976) and determined that the Harris County Flood Control
District was no longer required to submit its plans for projects other than levees
and structures relating to levees to the Water Development Board.
We believe the language of section 3A is clear. It applies only to projects “to
be constructed by the Harris County Flood Control District” and not to projects to
be constructed in Harris County by other persons or corporations. We do not
believe the District’s approval of another entity’s drainage project converts it into
a project “to be constructed by the . . . District” or otherwise exempts it from the
requirements of section 16.238. The plans for such a project must also be submitted
to the Department of Water Resources for an initial determination as to whether
the construction will “control, regulate, or otherwise change the floodwater of the
stream” and thus be subject to section 16.238.
SUMMARY
A drainage project to be constructed by an entity other than
the Harris County Flood Control District is not exempted
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Mr. Harvey Davis - Page3 (H-1177)
from section 16.238 of the Water Code merely because the
plans have been approved by the District.
Very truly yours,
Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
jsn
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