No. V-0082 (1947).

• Case Date: March 11, 1947
• Court: Texas

Texas Attorney General Opinions 1947. No. V-0082 (1947). 1March 11, 1947Board of Water EngineersState of TexasAustin, TexasOpinion No. V-82Re: Appropriated Water - change of purpose and place of use and the watershed question.Gentlemen:The questions raised are stated in your letter of February 26, 1947, as follows:

"In 1936, the Board granted a permit to the Brazos Irrigation Company to change the use of a part or all of the waters appropriated under Permit No. 1040 to manufacturing or commercial use. The question arises - would the American Canal Company be authorized under this 1936 permit to take and divert water for municipal and industrial use outside of the boundaries of the original Permit No. 1040 without obtaining a permit from the Board; and, further, would they be permitted to carry the water so appropriated outside the drainage area of the Brazos River."

We have been furnished with the permit and amend-wants thereto under which the American Canal Company (successor to Brazos Valley Irrigation Company) is now using certain water from the Brazos River. In so far as they concern this opinion, the facts, as reflected by the permit, as ed, appear to be these:

By permit No. 1040, dated September 27, 1927, the Board of Water Engineers granted to the Brazos Valley Irrigation Company the right to appropriate 99,932 acre-feet of water per a from the unappropriated waters of the 685 cubic feet per second of time, or so much thereof as may be necessary when beneficially used for the irrigation of 49,966 acres of land, located in Fort Bend county. The permit

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was issued subject to certain agreements made between the Irrigation Company and third persons, which agreements are not material to this opinion.

On June 16, 1936, the Board used the following language in amending the original permit: "Now, therefore, the Board of Water Engineers for the State of Texas, does by these presents grant this amendment to Permit No. 1040 heretofore issued to the Brazos Valley irrigation Company, and henceforth the Brazos Valley irrigation Company may appropriate and use the water, or any portion of such water, allocated by said Permit No. 1040, for 'manufacturing or use."

On October 18, 1941, Permit 1040 was again amended. This amendment referred to the Board's action in granting the original permit and to its action in granting the amendment of June 16, 1936 "to permit said company to use a portion or all of the waters appropriated thereunder for manufacturing and commercial purposes" and then authorized the Brazos Valley irrigation Company "to change the place of use of a portion or all of the water permitted to be appropriated under said Permit No. 1040 for the purpose of irrigating 44,851 acres of land located outside the watershed" in zoris, Galveston, Harris and Fort Bend Counties, leaving 5115 acres of land described in the original permit within the Brazos River Watershed still to be irrigated out of the original appropriation.

On May 28, 1942, the Board again amended Permit No. 1040, the effect of which was to permit the irrigation company to irrigate outside the watershed 3,328 of the 5,115 acres remaining in the watershed under the prior amendment, and leaving 1,787 acres of the original permit still within the Brezos River watershed This amendment is similar in form

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to the amendment of October 18, 1941.

The question of the Board's jurisdiction and power to regulate and control change of use and place of use of water which has been appropriated and put to beneficial use under permits issued by the Board, had not been considered by the courts of this State until the case of Clark v. Briscoe Irrigation Company, decided February 19, 1947, by the Austin Court of Civil Appeals in Opinion No. 9588, and not yet reported. The facts of the Clark case are these. The permit held by Briscoe irrigation Company authorized appropriation of 75,000 acre-feet per annum for irrigation, mining and municipal use. Of this amount, 50,000 acre-feet was allocated for the purpose of irrigation, the remaining 25,000 acre-feet being allocated for mining and municipal purposes. The 25,000 acre-feet permitted for mining and municipal use was not involved since it was never beneficially used as required to complete the appropriation thereof. The 50,000 acre-feet allocated for irrigation was beneficially used for the length of time required by...