The opinion
THEATTORNEY GENERAL
OF TEXAS
AURTXN H. TEXAS
PRICE DANIEL
ATTORNEY
GENERAL
ldsrch11, 1947
Board of Water Engineers Opinion No. V-82
State of Texes
Austin, Texas RG: AppropriatedWater -
change of purpose
snd PlSCG of use and
ths watershed ques-
QGntl~a~~i,:, tion.
The‘questionsrefeed are stated in your letter
of February 26, 1947, as f01lorGn
"In 1936,the Boerd grented a permit to
ths &SzoS IrrigationCompany to change the
UIG or G part or all of the i7ateraepproprlat-
ed under PeraLt No. 1040 to wnufacturing or
cenwcial USG. The question lrlaea - roplld
t&G American Canal C~ompanybc aUthoPizGd under
this 1936 permit to take and divGPt water for
~niclpal a,ndfndustriaJuSe 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 approprfatGdOUtzidG 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&&eAmerfoan Cenal Cotspany(Suc-
e& to B~zoa Valley Irrfgation Co~peny) is ROW uring
8-b vOt4P f3'OWthG 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,
l!m, the 8x4of Wmter Engfakerr grantGd to
,t@e Br4zoa‘s ,elleyIrpigatfon Compaq tht right
to appro~iate 99,932 WP4-rG4t or water p4r
~ldl r2~41t&44fkWpPPOpFg8t4d, VG~WP~ Or thG
b W@ o m R lVGP jlt 0 2WtG of div4prl.m t3otto OX-
.OOGd685 cubfo fGGt PGP SSCOnd Of tin, @P a4
maah thepsof 88 U48ybb naoessery WhGB3294nGPg4~f41-
1~ used fm the frrigetfon of 49,966 acrea ef
land, loaabd Fn Fort Bend County, The pem9it
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~
.thefollowing 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 the lb4koG V4114y Ir-
ri@tioa Oway, and hG~OGrWth the
Bnzos Vnllrf IxM.gatlonCompsnj may Gp-
propFiat and WG the 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 $PGnting the origitvl
pG=it snd to its action In gPsnting the
lsmwhaentat Saw 16, 1936 "to pemalt G4ld
eapmly te rrr?a #e&him ar 811 of the waterm
rysp*oprlrted the+WtideP r0r mrnufacturi~.and
eomiaWcla19u~poaea" and then authorlasd %iW
Bncoa VaZleJrIrrigationCompany "to Ch8*
the p$aai~of use 0r G portion or all 0r thG
water pelttre3 to be 49propriatedunder arid
PO it MO. z@ko r0z,r -0 purpoaa 0f irrig4ttw
44351 84mo of It*i%d I@oRt& QU$8idG the
ltRiGPShR$?' $& ~O(RIF$I, @4lVG8tOti, Jt8PPi8 #arf
I*% mid ~cwatt~tt, lti0isg 5;115 lCPGI 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 lpproprlrtion.
OnSq 28 f942 the Board agein amend-
,~d mmit 0. lo 0, iha4GrrGat 0r whiah warn
.$G permit th* iip$ attoa cowany to irri to
GotaId &he wrtwa iiGd 3,328 0r thG .‘5,11 8GFG8
'remainingla thG watarahsd under the 9FioP
4tGGndm4nt,and lorvfag 1,787 8Cr~a of the
original penit still within the Bnzoa River
wet&rGhedL This amea4axtntis aimlls~ in fo@E
.
Board of Wster Engineers - Page 3, V-82
to the amendment of October 18, 1941.
The question of the Boclrd'sjurisdiction4rml
power to regulete and control change of use sad plsco *i
use of water which has been appropriatedsad put to bmao-
ficlsl us4 under permits issued by ths Board, h4d not bwen
considered by the courts of thta Sixto until the owe 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 IrrigationCompsny authorlzsdapproprie-
tioa of 75,000 acre-fe& per annum for irrigation,mining and
mllnicipa1 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 beaeficlallyused 48 re-
quired to coeplete the appropriationtheroof. The 50,000
acre-feet allocated for irrigationwas 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,orthose desigaated la t&
permit, and to change the purpose of use 80 aa to iaClUa4
m+nFag, manufacturingand wafeipal, the irrigationoompsay
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’peeof any regulation or control by the Board ao long
aa the use wal 8 beneffcfel one authorized by law and did
not result fn an Increased eppr4prirtionor t4kFng 4f 4
greater quentitg of water then was authorized by the p4klt,
or Impair the vested rights of other appropriators.
After reviewing the aoaservatienamendment to th4
Coartltution (ArtloleXVI, Sea. 59-a) and the st8tUt4s d441-
iw vlth the aubjwt, the Court expressed 3.tsoplal4n ta the
f4'bl4wiaglangwgrs
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 determinetloaof .
that lsruo iwoLves the exePci44 of 61Sewad
Boerd of Water Eagiaeers - Page 4, V,82
and reasonablediscretion. 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, coastltutioasland statu-
tory, a veatiaC;in the Board of the continuing
i
duty of suparviaionover the distributionand
use of the publio watera of the State ao as to
sea that the oonntitutioaeland etstutory ob-
.a
jectlveasre ottrined, and CamyLng with it
the requirementthrt aay aubeteatial oh4nge In
uae or plroe Qr use a& ruthorlzed in the origi-
ual permlt,,austMoe the approval of the Board.
Any other constructionmight easily result in
defeat or'airaumveatieaof the objootives of
the conservationlaws.
n. . .
“If4 hold that authority of the Boerd is
essential to authorize a ohaage in us4 or
place of use from thet authorized in the per-
mit."
B&usedon Clerk Y. Briscoe IrrigationCompeay,
sup14, it la our opinion that the American Ceael Cwpsay
msy not use the water appropriatedby it under Its present
permit for muaioipsl purposes without the uauel application
~,.
to the Board..
We are uaebls to se4 a,dlatFactionas regards the
c'hengef'roxe manuracturingend 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 pluaiclpoluse, 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 usabilityand commer4ial
Boer3 of Ueter Engineers - Page 5, V-82
value end to include w8ter necessary for the d6velop-
atentof electric power by means ethsr than hgdroelec-
trio.” No prwision fa made in the statutes rel4tLve
to industrial use es such. For the pwpoee of this
opinion lndustrie2,menufaeturhg anb commevsypal will
be considered8s synonymous4nd me8n the seme thing
as the msnufacturinguse referred to Zn the st4tute.8.
The situation as regards the wnufscturlng
use under conslderutianhere Is distlngulsh4blefrom
that lnvolved In the Clerk case in tw reap6ots: (1)
Here, the original plrrmithaa alrewlg been em6nd6d by
the BM?rd t0 @&low 8 #8nuf8Cturinguse of 811 0r sny
porticlnof 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 4llaiostionis for lcrigstiem,
Wnuf8crturtn.g aad oawoPcrcia1.
tbfarence l.snov 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%%% ,'teland other tbrrn
that d6wribed in bF4 pw?Itit,and T8) the authority 0r
th8 Board to gr4nt 8n em6ndment t0 such permit to ellow
irrigation of such other land. me opinion conclude.8
that peraittee'e i,rrigetion use Ls restriated to the
Land desor.U#edin swh permit and thet a ch46ge of piece
of ua6 Is net parurritted withgratthe suthorlty of the
Beard (1 W6 quote fr0m the opinion as PolloWs:
"However B aereful resdlng of the Texas
Statutes dda&g with app%?opriatioa of w4ter
reveals 8 unifws Znsistenaeby 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
inrtmentm required to perfect the spprogrti-
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 requirementawh4re
the voter I.4to be used for other purposes.
.
Board of Water Engineers - Pege 6, v-82
"If it vas the leglslstiveintentthat
an sppropristorof water for lrrlgatlonpur-
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 appropriatorcould
ignore the fsct th8t a particular tr8ct of
land ~88 described in his permit, it must be
es@UPfedth8t the Legisletureh8s required a
uaelesa thing e Under well recognized rules
o? statuteq constructionwe 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-irrigatingstatutory 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-
tinguishingchange of piece of use 8s such, from ohange of
place of use 8s betveep the various uses authorized by
statute. We interpretiC1ark.v.Brlscoe IrrigationCom-
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 irrigationalone. A0 good rea.sonex-
ists why pelllritteeshould be confined to one area in con-
ducting irrigation,absent suthorizetionto 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 the wster to be used in either case is
th6 s5me Vat4P. Cen it logicallybe restricted in change
for irrigation,but not manufacturing? We think not.
Clark v. hy2aaea frrlgation Company has lnferentiellymov-
ed the law ef appropriationin this State over the void
lait by our statutes in nmt prevldi for lppllo~atloafor
change OS ua4 em3 pla00 or uaa, andT he "continuingduty
of 8uparvIaien over ths diatrlbutlonand use of the public
uatopa oh the Itata 10 86 to see that the constitutions1
and at8tuterg objectivesar6 attained," accorded the Boald
'bythe opinion surely must relate to chsnge of place of
use for all purposes and not for irrigationalone. 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 clruumyentlonOS th8
objectives of the conservationlaw”, 88 th8t law has be8a
construed and carried forward by that case. We conaidep
Clark v. Briacoe Irrlgrtlon,Caop8nja8 contFolll.ngon
this aubjeot.
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 atatem8Iltof
Article 7515, V.A.C.I., pequ3.m dealgmticm of the plaoo
of the use of non-i~~ig8tL~ m8es. Article 7515, Y .A4.8.;
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 followlngrThe
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 0110for
which the appropriationof 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 daacrlptionSnd atate-
slantof the approxirto are0 OS the 18nd8 to be.
In this c annaction,we ratommend 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 th8ylftka 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 pezrlaltdesignating the place of use -of all
permitted u8eai would aaalat geu in Carryingout the ng-
ulrtory gbligrtionwhfoh you hoe mbder the 8tstutes and
und8r the construotiongiven them by clrrk v. Bidscoe Ir-
rlga~tionCcmpaay, supra.
Th8 qlaeatZcmnw rriara 88 to pemittee’r rZ&t
to use the water under its p8nLt id ynuf88t~lag pur-
t;te;oiLyond the w8teuh8d without tuur2h8rlmthoritf irou
. Ih8 l~OQdHP t80s @QtQhr 18, l$?h, 8?kdmy 28,
.
Board of Water Engineers - Page 8, v-82
1942, olearly carry the irrigationuse on all except
1.787acrea beyond the watershed. Tha language which
is easentiellgthe same in each of the 8eendments
granting this authority, is quoted as Sollows:
"l?OW,TliBRBFORE,the Board of Water
Engineers for the 8t8te of Texas, does
by t&888 INSent QltMT the Authority
and the Right, subjeat te 811 the teru8,
rgpeementa,conditlona and reatriotlona
contained fn Permit Ho, 1040, unto the
Brazes VIlley Irrigation Uoinpanyto change
its Plaoe of Use of the water, for irriga-
tion under said Pepplitso. 1040 from the
lands origfnellydescribed fn srld permit to
the irrig8tlonof the follcOlLng deaaribed
lands, towltr
“ft iS expressly provided th8t 811 OS
the rights, tezms, agreements, conditions
and restpictfonscontained 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 niayexercise
4ta IrrigationFights OR the lands hereinbeiore
described (88 Trest A and Tr8ct B), and shall
not irrigate otBeqPl8nds than thoae hereinafter
deacrfbed unleaa 18wSully permitted to dc 10.”
Thl6 lrnguage is preceded by sealtationscon-
cornin the peetfoue action of the Beard fn granting the
origin81 per&?, and in gnating the lsedment authorizing
we SOP wnniaoturfng purpoasa, the applloat~onby 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 fnterferewith vested rights,
.
,. .
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
mrnuf8oturing we beyoti the v8teP8h8d.
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 !fhiChw8ter uy be
diverted upeu p~op8r appllcrtion8nd h88rigg. The statutce
provide 8s fol.lcvs:
Brtlale 7589-
'It Sh8li be UWWiUi iQP WY pW#oll, 88-
soci,etiQQof p@JrIow, oor)slat;cln, vet(rpir-
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 prejksdloeof 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 improvementor l~lgation
district ShOll t8k8 8ny v8te2'irollear Mtur81
StreDm, V8ter CQUZ’80, or vrtwahsd in tht8 i3t8te
Into 8a) other w8terrhed, arUChperI)on,lO8wi8-
. tion of per8on8, ao~e*ltlon, v8teF iuprovement
or irrlgrtlondirtrlct 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
rffectivdthereby, 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 lny decision of the Bo8ld
eny appeal my be t8keQ to the distriot court of
the county in which such diversion is proposed
to be made, in the mode 8nd m8nneP prescribed
in this chapter for other 'appea18from the de- .-
cision of the Board."
Bo8rd of Water Engineers - Page 10, v-82
Although the Boardas intentionas expressed in
the two watershed amendments is not entirely clear, we in-
terpret these amendments as necessarilycarrying the water
beyond the watershed for all permitted purposes and not for
irrigationalone, We think that all uses authorizedby 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-permittedto 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 reatrietion888
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~ideratlonat 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 irrigationpurposes, and amend-
ments thereto euthorfsfng the use of a por-
tion or all of the water so appropriatedfor
manufacturingand 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-
. . . .
Board Of tiaterEngi~~f~r~- PIge 11, v-82
fscturinggand coaamemialpufpo8ea, both whit&-
in and without the vatershed~
Your8 very truly
AT!P~RNEYOERERALOF !FXAB -
HDP/bt/Ih
APPROVED:March 11, 1947