Untitled Texas Attorney General Opinion ( 1967 )

EE ATIXBESTJETY GENERAL
P %FXKAS
Honorable Joe G. Moore, Jr. Opinion No. M-2
Executive Director
Texas~Water Development Re: May the Texas Water Develop-
Board ment Fund be used to provide
Austin, Texas financial assistance for
construction of recreational
facilities which are proposed
in conjunction with a munici-
Dear Mr. Moore: pal dam and reservoir project?
You have requested an opinion of this office as to whether
the Texas Water Development Fund can 'beused to provide financial
assistance for construction of recreational facilities proposed
in conjunction with a municipal dam and reservoir project. The
town of Clyde, in Callahan County, Texas, seeks financial asslst-
ante from the Texas Water Development Board in order to construct
a municipal water supply project. Engineering plans submitted to
you provide primarily for a municipal water supply but such plans
also propose incidental construction of recreational facilities
such as picnic tables, boat ramps, water supply lines, sewage
facilities, access roads and parking areas, so as to allow pub-
lic access and use of the water reservoir for recreational purposes.
Where any such project Is otherwise within the purview of
the Texas Constitution and laws governing your State agency, and
where the Texas Water Rights Commission has resolved that such
incidental Improvements are reasonably related to optimum develop-
ment of the reservoir site, your agency can approve a project
which includes the above described recreational facilities.
Authority to provide financial assistance for construction of 8
municipal water reservoir project includes the power to make
optimum development of the reservoir site, and this includes the
power to construct recreational facilities reasonably related to
a complete optimum development of the water reservoir site. Acts
of 1965, 59th Leg., p. 587, Ch. 297 effective per election of
November 8, 1966; Sec. 12, Article 6280-9, V.C.S. Whether recrea-
tional facilities are proper to be included in such a project is
a fact question for the exercise of discretion by the legal entity
Honorable Joe G. Moore, Jr., Page 2 (M-2)
seeking your financial assistance, but the Texas Water Rights
Commission and your Board must each exercise administrative
discretion as to inclusion of such facilities In the project
by approval or disapproval of project plans.
By this it is not meant that your agency can require
such recreational facilities to be included In a project, but
It is within your discretion to lend State financial assist-
ance to a legal entity desiring to include such facilities
In its plans.
Section g(b) of Article 8280-9, supra, defines the fund
available for State assistance:
"(b) The "Texas Water Development Fund," here-
inafter called "Development l?und,"shall be a
revolving fund into which there shall be de-
posited the proceeds derived from the sale of
the Texas Water Development Bonds, and such
other moneys as provided In this Act, and which
funds shall be used upon the terms and condi-
tions set out in this Actfor the purpose of
aiding and making funds available to the var-
ious political subdivisions for projects and
purposes authorized under this Act, and upon
the terms and conditions hereinafter set out."
Section 11, of Article 8280-9, supra, states:
"Sec. 11 Until December 31, 1982, the Texas
Water Develooment Fund shall be used bv the
Section 2(f) of Article 8280-9, supra, defines the word
"project" as follows:
-4-
. .
Honorable Joe G. Moore, Jr., Page 3 (M-2)
“(f) "Project' means any engineering under-
taking or work for the purpose of the conser-
vation and development of the surface or
subsurface water resources In the State of
Texas, including the control, storing and
preservation of its storm and floodwaters
and the waters of its rivers and streams for
all useful and lawful purposes by the ac--
quieition, improvement, extension. or con-
&ructlon-of hams, reservoirs, and other
water storage projects (Including under-
ground storage projects), filtration and
water treatment plants Including any system
necessary for the transportation of water
from storage to points of distribution, or
from storage to filtration and treatment
plants, including facilities for transport-
ing water therefrom to wholesale purchasers,
by the acquisition, by purchase of rights
in underground water, by the drilling of
wells, or for any one or more of such pur-
poses or methods." (Emphasis added)
Recreation as a purpose consitutes a useful, lawful and
beneficial use of water. Empire Water and Power Co. v. Cascade
Town Co., 205 F-123 (5th Cir., 1913). u s v. a ar, 4
S 1 State v. Red Rlver'Vaildy C00, 1 fl.M.207,
162u;%'d 4 W il V 1 1 , p. lbb. 2 Kinney, 2d Ed.,
sec. 696, hrihe%re in Monierey County Flood
Control and Water Conservation Di&l.ct v. Hughes, 20 C 1
Rutr. 252, 257, recreational facilities were held to beaDGo-
perly inciudkd-in water projects as a public use, wherein
the court stated:
"In view of the fact that recreational uses are
clearly related and incidental to the malnten-
ante and operation of a dam and reservoir for
flood control and water conservation purposes,
and also recognizing the straw public interest
In such recreational uses as shown by leglslaflve
declarations and approval, we believe that under
the act the power of eminent domain would include
the taking of property for such related and inci-
dental uses."
-5-
Honorable Joe 0. Moore, Jr., Page 4 (M-2)
This office has heretofore held that a multiple-purpose
water reservoir constructed by a public district created under
the Texas Constitution (Article XVI, Section 59), can lawfUlly
impound waters for recreational use ; we held such a district
could expend tax funds to finance and maintain such a reservoir.
Attorney General's Opinion C-436, (1965). Texas laws speclfi-
tally provide for use of water for "recreation and pleasure".
Article 7470, V.C.S.
With the above general principles in mind, and considering
the statutory definition of the word "project" by the Legisla-
ture, recreational facilities eueh as you describe can properly
be included as a part of any water reservoir project because
the words of Article III, Sections 49c and @d, and Article XVI,
Section 59, are to be given a broad and liberal meaning In order
to effectuate the purpose of the constitutional provisions of
which they are a part. Brown County W.I.D. No. 1 v. Austin
Mill & Grain Co., 135 Tex. 140 138
1 Improvements and use of sukun
rkreation will materlalls aid the State in Derformlna Its duts
as a trustee of surface wkters for the benefit of all-of the "
people., Goldsmith & Powell v. State, 159 S.W.2d 534, (Tex.
Civ. App.1943, error'ref.)
Your Board is specifically required to receive a finding
bv the Texas Water Riahts Commission which Includes a certlfi-
cation that “the projkt contemplates optimum development of
the site of the project". Article 7477 ddb At'
etx.. . 296, page 583; Sec. 12 0; i%%," L80~g.CVfCYsf.
keasonablkess of natu?e,~ekient and cost of recreational lm-
provements which are proposed in water storage projects where
State financial assistance is sought is a fact question which
both Texas Water Rights Commission and your agency must decide
when considering the administrative steps necessary to project
approval.
Reservoir projects are generally 'built so as to Include
some recreational facilities as a part thereof. Recognition of
this fact by our State Legislature Is found In Subsections (10)
and (ll), of Section 21, of Article 8280-9, V.C.S., which reads
In part as follows: :,
The Board may enter Into contracts
~~~~)p%tical subdivisions of the State, with
agencies of the State, and with the United States
-6-
. . .
Honorable Joe G. Moore, Jr., Page 5 (M-2)
(11) The Attorney General
approve as to legality: . .
tracts by the Board for the
operation of recreational facilities."
(Emphas&s added)
These subsections constitute a le lslative construction of the
meaning of Article III, Sections fi
gc and 49clof the Texas Con-
stitution. 82 C.J.S. 788, 791, Statutes, Sec. 360; Stanford
v. Butler, 142 Tex. 692, 181 S.W.2d 269 (1944), 153 A.L.R. 1054,
Point 9.
1
S UM M A"R Y
Texas Water Development Board Is authorized
by law to determine feasibility of any water
reservoir project for State financial assfst-
ante; where proposed recreational facilities
are included in plans su'bmittedand are found
reasonable by such Board, such may be approved
as a part of the water project.
Ve
neral of Texas
Prepared by Roger Tyler
Assistant Attorney General
-7-
Honorable Joe 0. Moore, Jr., Page 6 (M-2)
APPROVED:
OPINION COMMITTEE (_
Hawthorne Phillips, Chairman
W. V. Geppert, Co-chairman
Harold Kennedy
Pat Bailey
David Longoria
STAFF LEGAL ASSISTANT:
A. J. Carubbi, Jr.
-8-