Untitled Texas Attorney General Opinion ( 2010 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
March 15,2010
The Honorable Patrick M. Rose Opinion No. GA-0762
Chair, Committee on Human Services
Texas House of Representatives Re: Whether a Type A general-law municipality may
Post Office Box 2910 impose and enforce a nonpoint source pollution
Austin, Texas 78768-2910 ordinance in its extraterritorial jurisdiction pursuant
to section 26.177 ofthe Water Code (RQ-0822-GA)
Dear Representative Rose:
On behalf of the City of Wimberley, you ask whether "a Type A General-Law city has the
authority to impose and enforce a nonpoint source pollution ordinance" in its extraterritorial
jurisdiction under section 26.177 of the Water Code.! Subsection 26.l77(a) of the Water Code
states, "[a] city may establish a water pollution control and abatement program for the city." TEx.
WATER CODE ANN. § 26. 177(a) (Vernon 2008). Subsection 26. 177(b) further explains that
[t]he water pollution control and abatement program of a city shall
encompass the entire city and, subject to Section 26.179 of this code,2
may include areas within its extraterritorial jurisdiction which in the
judgment of the city should be included to enable the city to achieve
the objectives of the city for the area within its territorial jurisdiction.
The city shall include in the program ... the following services and
functions:
lRequest Letter (available at http://www.texasattorneygeneral.gov).
2Section 26.179 of the Water Code pennits the owner or owners ofland in the extraterritorial jurisdiction of
some municipalities to designate a tract as a water quality protection zone. TEx. WATER CODE ANN. § 26. 179(c}--{d)
(Vernon 2008). Once the Texas Commission on Environmental Quality approves the designation, municipalities are
prohibited from enforcing their pollution control and abatement programs within such zones. Id. § 26.1790). However,
the Texas Supreme Court held that section 26.179 of the Texas Water Code, as it was enacted in 1995, was
unconstitutional as an impermissible delegation of authority to private landowners. FM Prop. Operating Co. v. City of
Austin,22 S.W.3d 868,888 (Tex. 2000). Although the Legislature amended the statute in 1999, a prior attorney general
opinion concluded that ''the Texas Supreme Court's analysis of section 26.179 in FM Properties would not change in
light of the 1999 amendments." Tex. Att'y Gen. Op. No. JC:-0402 (2001) at 6.
The Honorable Patrick M. Rose - Page 2 (GA-0762)
(5) the development and execution of reasonable and
realistic plans for controlling and abating pollution or potential
pollution resulting from generalized discharges of waste which are
not traceable to a specific source, such as storm sewer discharges and
urban runoff from rainwater ....
ld. § 26.177(b) (emphasis added) (footnote added).
At the outset, we note that section 26.177 does not use the phrase "nonpoint source pollution"
as you do in your request, nor is that phrase defined in the Water Code, although it is used in several
other provisions. 3 See Request Letter; TEx. WATER CODE ANN. § 26.177 (Vernon 2008); see also
TEx. WATER CODE ANN. §§ 26.0135 (Vernon Supp. 2009) (requiring State Soil and Water
Conservation Board to coordinate certain "nonpoint source pollution" programs), 26.023 (Vernon
2008) (requiring consideration of effects of "nonpoint source pollution" in developing water quality
standards). Instead, subsection 26. 177(b)(5) addresses "generalized discharges of waste which are
not traceable to a specific source, such as storm sewer discharges and urban runoff from rainwater."
TEx. WA.TER CODE ANN. § 26.177(b)(5) (Vernon 2008). While the two phrases are conceptually
similar, in considering your question, we confine our analysis to the exact language ofthe statute and
address a Type A general-law municipality's authority in its extraterritorial jurisdiction to control
and abate water "pollution resulting from generalized discharges of waste which are not traceable
to a specific source." ld.
In answering your request, we first address whether section 26.177 applies to Type A general-
law cities. Municipalities in Texas may be divided into three broad categories: general-law, special-
law, and home-rule. Laidlaw Waste Sys. v. City of Wilmer, 904 S.W.2d 656, 658 (Tex. 1995).
The Local Government Code further subdivides general-law municipalities into three types:
A, B, and C. TEx. Loc. GOV'T CODE ANN. §§ 5.001-.003 (Vernon 2008). Section 26.177 of the
Water Code applies to "a city" or "a municipality" without further distinction, and you therefore ask
whether that section applies to any city, regardless of its size or whether the city is organized as a
general-law or home-rule municipality. Request Letter.
The Legislature has charged the Texas Commission on Environmental Quality (the
"Commission") with implementing the provisions of chapter 26 of the Water Code. TEx. WATER
CODEANN. § 26.011 (Vernon 2008). For purposes of section 26.177, the Commission has defined
the term "city" as "a municipality or city existing, created or organized under the general, home rule,
or special laws of this state." 30 TEx. ADMIN. CODE § 216.23 (2009) (Tex. Comm'n on
3"Point source" is defined in the Water Code as "any discernible, confmed and discrete conveyance, including
but not limited to any pipe, ditch, channel, tunnel, conduit, well, . . . or vessel or other floating craft, from which
pollutants or wastes are or may be discharged into or adjacent to any water in the state." TEx. WATER CODE ANN. §
26.001 (21) (Vernon 2008). The Texas Commission on Environmental Quality has defined "nonpoint source" as "[a]ny
origin from which pollutants emanante in an unconfmed and unchanneled manner, including, but not limited to, surface
runoff and leachate seeps." 30 TEx. ADMIN. CODE § 330.3(92) (2009) (Tex. Comm'n on Environmental Quality,
Municipal Solid Waste, Definitions).
The Honorable Patrick M. Rose - Page 3 (GA-0762)
Environmental Quality, Municipal Water Pollution Control and Abatement, Definitions). Thus,
under the Commission's definition, the term city in section 26.177 would include Type A general-
law cities. As the agency charged with administering the provisions of chapter 26 of the Water
Code, the Commission's rules interpreting those provisions are entitled to deference, provided the
agency's interpretation is reasonable and does not contradict the plain language of the statute. Fiess
v. State Farm Lloyds, 202 S.W.3d 744, 747 (Tex. 2006); Tarrant Appraisal Dist. v. Moore, 845
S.W.2d 820,823 (Tex. 1993). We therefore analyze the Commission's construction of the term city
in light of this standard.
In construing statutes, the primary objective is to ascertain and give effect to the Legislature's
intent. City of Marshall v. City of Uncertain, 206 S.W.3d 97, 105 (Tex. 2006). Unambiguous
statutory language is interpreted according to its common meaning unless such interpretation would
lead to absurd results. TEx. GOV'TCODEANN. § 311.011(a) (Vernon 2005); Hernandez v. Ebrom,
289 S.W.3d 316, 318 (Tex. 2009). The commonly-understood definition of the term city is "an
incorporated municipality." AMERICAN HERITAGE DICTIONARY 276 (2d ed. 1982); see also THE
NEW OXFORD AMERICAN DICTIONARY 312 (2001) (defining city as "an incorporated municipal
center"). For purposes of the Local Government Code, when the Legislature simply uses the word
municipality without further specification, it means "a general-law municipality, home-rule
municipality, or special-law municipality." TEx. Loc. Gov' TCODE ANN. § 1.005(3) (Vernon 2008).
Thus, the Commission's definition of the term city appears to be consistent with both the plain
meaning and the Legislature's intent.
Furthermore, an examination of the Texas statutes as a whole reveals that the Legislature
frequently enacts laws specific to one type of municipality. See, e.g., id §§ 141.006 (applying to
Type A general-law municipalities), 23.024 (applying to Type B general-law municipalities),26.047
(applying to home-rule municipalities); TEx. WATER CODE ANN. §§ 26.0271 (Vernon Supp. 2009)
(applicable to some home-rule municipalities only), 26.180 (Vernon 2008) (applicable to some type
B or C general-law municipalities only). However, the plain language of section 26.1 77 ofthe Water
Code does not distinguish between types of municipalities. When the Legislature employs a term
in one section of a statute and excludes it in another section, the term should not be implied where
excluded. Laidlaw, 904 S.W.2d at 659. Had the Legislature wanted to limit the application of
section 26.177 to specific types of cities, it knew how to do so. We conclude that the Commission's
construction of the term city is neither unreasonable or contrary to the plain language of the statute
and agree that section 26.177 applies to Type A general-law municipalities.
We next address whether section 26.177 authorizes a city to "voluntarily implement and
enforce a water pollution and abatement program in its "extraterritorial jurisdiction." Request Letter.
Under the plain language of section 26. 177(b), the Legislature has authorized a city to establish a
program to control and abate water pollution resulting from generalized discharges of waste not
traceable to a specific source. TEX. WATER CODE ANN. § 26.177(b)(5) (Vernon 2008). Furthermore,
this program may extend to the city's extraterritorial jurisdiction so long as "in the judgment of the
city" doing so "enable [s] the city to achieve the objectives of the city for the area within its territorial
jurisdiction." Id § 26. 177(b).
The Honorable Patrick M. Rose - Page 4 (GA-0762)
Consistent with the plain language, Texas courts have recognized a city's authority under
section 26. 177(b) "to enact ordinances, applicable ... within its extraterritorial jurisdiction designed
to control and abate actual or potential water pollution resulting from generalized discharges ofwaste
not traceable to [a] specific source." Lucas v. N. Tex. Mun. Water Dist., 724 S.W.2d 811, 817 (Tex.
App.-Dallas 1986, writ refd n.r.e.) (holding that cities may not regulate sewer treatment plants,
which are point sources, in their extraterritorial jurisdiction). In City ofAustin v. Jamail, the Austin
court of appeals specifically addressed a city's authority to enforce a nonpoint source pollution
control ordinance in its extraterritorial jurisdiction. 662 S.W.2d 779, 780 (Tex. App.-Austin 1983,
writ dism'd). Upholding the ordinance, the court concluded that subsection 26. 177(b)(5) expressly
provided the city with authority to execute its ordinance in its extraterritorial jurisdiction. ld. at
782-83. 4 Prior opinions of this office likewise recognize a city's authority under section 26.177 to
enforce water pollution control and abatement programs within its extraterritorial jurisdiction. See,
e.g., Tex. Att'yGen. Op. Nos. JC-0402 (2001) at 2-3, JM-226 (1984) at 7-8. Thus, the Legislature
has granted express authority to a Type A general-law municipality to regulate, in its extraterritorial
jurisdiction, pollution resulting from generalized discharges of waste which are not traceable to a
specific source if the municipality first determines that implementing a water pollution control
program in its extraterritorial jurisdiction is necessary to achieve pollution control objectives in its
territorial jurisdiction.5
4Dicta in City of West Lake Hills v. Westwood Legal Defense Fund suggested that section 26.177 "does not
contemplate independent regulatory action by a city." 598 S.W.2d 681, 686 (Tex. Civ. App.-Waco 1980, no writ).
That opinion addressed the authority of cities to regulate private sewage facilities (point sources) in the cities'
extraterritorial jurisdiction, and it is therefore distinguishable from the nonpoint source pollution asked about in the
request at issue. Id. at 682; see also Jamail, 662 S.W.2d at 781 ("[T]his language [in City of West Lake Hills] is quite
clearly dictum to the extent that it purports to defme the scope of city authority under subection five ....").
5A brief submitted by the Texas Association of Builders suggests that the Texas Local Government Code limits
the regulations that a city may include in a water pollution control and abatement program applicable to its extraterritorial
jurisdiction. See Brief from Ned Muftoz, Director of Regulatory Affairs, Texas Association of Builders, to Honorable
Greg Abbott, Attorney General of Texas, at 4 (Oct. 23, 2009) (on file with the Opinion Committee). However, you ask
only about the general authority granted pursuant to section 26.177 of the Water Code, and our opinions are limited to
the specific questions asked by an authorized requestor. Tex. Att'y Gen. Op. No. GA-0283 (2004) at 9 n.2. Therefore,
we express no opinion on the validity of any specific controls that may be included within a city's pollution control and
abatement program.
The Honorable Patrick M. Rose - Page 5 (GA-0762)
SUMMARY
Pursuant to Water Code subsection 26. 177(b)(5), if a Type A
general-law municipality determines that implementing a water
pollution control program in its extraterritorial jurisdiction is
necessary to achieve pollution control objectives in its territorial
jurisdiction, the Legislature has authorized the municipality to
regulate, in its extraterritorial jurisdiction, pollution resulting from
generalized discharges of waste which are not traceable to a specific
source.
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee