Supreme Court of Texas.
FM PROPERTIES OPERATING COMPANY, et al., Appellants,
The CITY OF AUSTIN, Appellee.
Argued Dec. 9, 1998.
Decided June 15, 2000.
Rehearing Overruled Aug. 24, 2000.
Attorneys & Firms
*870 Robert D. Thomas, Hohmann & Taube, Scott Patrick Baker, McGinnis Lochridge & Kilgore, Austin, for Appellants.
Karl Bayer, Law Office of Karl Bayer, Austin, Pamela Stanton Baron, Austin, for appellee.
Justice BAKER delivered the opinion of the Court in which Chief Justice PHILLIPS, Justice ENOCH, Justice O’NEILL and Justice GONZALES joined.
The primary issue in this direct appeal is whether section 26.179 of the Texas Water Code, which allows certain private landowners to create “water quality protection zones” in certain cities’ extraterritorial jurisdictions, violates the Texas Constitution. We conclude that it does because it unconstitutionally delegates legislative power to private landowners. Therefore, we affirm the trial court’s judgment on the merits as well as on attorney’s fees.
The Texas Legislature enacted Section 26.179’s legislative history clarifies that the statute was intended to relieve large landowners and developers in certain cities’ ETJs from “regulatory chaos.” Hearings on S.B. 1017 Before the Senate Comm. on Natural Resources, 74 th Leg., R.S. (Apr. 4, 1995); Hearings on H.B. 2471 Before the House Natural Resources Comm., 74 th Leg., R.S. (Apr. 10, 1995). Accordingly, the statute exempts the landowners from a variety of otherwise applicable regulations, including water quality regulations, and allows the landowners to create and implement a water quality plan for the zone.
*871 The landowners designate a zone by filing a water quality plan and a general description of water quality protection facilities and proposed land uses for the zone in the applicable county deed records. See TEX. WATER CODE § 26.179(h).
TEX. WATER CODE § 26.179(b).
The TNRCC reviews water quality plans, but it must approve a plan unless the TNRCC finds that implementing the plan will not reasonably attain one of the two water quality objectives. See TEX. WATER CODE § 26.179(m).
Landowners may amend a plan from time to time. See TEX. WATER CODE § 26.179(g).
In reviewing the water quality plan, the TNRCC may not require public hearings and must complete its review and approval of a plan or amendment within 120 days after receiving the plan. See TEX. WATER CODE § 26.179(g).
The statute requires landowners that choose to maintain water quality background levels to monitor water quality for three years after each phase of development is complete and to submit annual technical reports to the TNRCC for the same three years. See TEX. WATER CODE § 26.179(b).
Once a zone is designated, a municipality may not enforce in the zone any “ordinances, land use ordinances, rules, or requirements including, but not limited to, the abatement of nuisances, pollution control and abatement programs or regulations, water quality ordinances, subdivision requirements, other than technical review and inspections for utilities connecting to a municipally owned water or wastewater system, or any environmental regulations” that are inconsistent with or impair the ability to implement and operate the land use plan and water quality plan as filed. TEX. WATER CODE § 26.179(i).
In addition, a city may not collect fees or assessments or exercise powers of eminent domain within a zone until it annexes the zone. See TEX. WATER CODE § 26.179(i).
After the Legislature enacted section 26.179 is constitutional and that they are entitled to attorney’s fees.
II. APPLICABLE LAW
A. STANDARD OF REVIEW—CROSS -MOTIONS FOR SUMMARY JUDGMENT
When both sides move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both sides’ summary judgment evidence and determine all questions presented. See Star–Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995).
B. STATUTORY CONSTRUCTION
If possible, we interpret a statute in a manner that renders it constitutional. See State v. Public Util. Comm’n, 883 S.W.2d 190, 196 (Tex.1994).
C. DELEGATION OF LEGISLATIVE POWER
The Texas Constitution vests “legislative power” in the Legislature. See Mistretta v. United States, 488 U.S. 361, 415, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (Scalia, J., dissenting)).
Although the Constitution vests legislative power in the Legislature, courts have recognized that in a complex society like ours, delegation of legislative power is both necessary and proper in certain circumstances. See Higginbotham, 143 S.W.2d at 81, 83, 86 (upholding a statute giving a housing authority the power to, among *874 other things, condemn property and to select housing for tenants).
But because delegations to private entities raise more troubling constitutional issues than public delegations, they are subject to more stringent requirements and less judicial deference than public delegations. See Boll Weevil, 952 S.W.2d at 469.
Nevertheless, as we explained in Boll Weevil, private delegations are frequently necessary and desirable. See Office of Pub. Ins. Counsel v. Texas Auto. Ins. Plan, 860 S.W.2d 231, 238 (Tex.App.—Austin 1993, writ denied) (upholding delegation to a private association to make rules for the state’s plan for providing motor vehicle liability insurance to high risk drivers).
But as we further explained in Boll Weevil, once we determine that there has been a private delegation, we must then determine whether it is constitutional by analyzing it under eight factors:
1. Are the private delegate’s actions subject to meaningful review by a state agency or other branch of state government?
2. Are the persons affected by the private delegate’s actions adequately represented in the decisionmaking process?
3. Is the private delegate’s power limited to making rules, or does the delegate also apply the law to particular individuals?
4. Does the private delegate have a pecuniary or other personal interest that may conflict with its public function?
5. Is the private delegate empowered to define criminal acts or impose criminal sanctions?
6. Is the delegation narrow in duration, extent, and subject matter?
7. Does the private delegate possess special qualifications or training for the task delegated to it?
8. Has the Legislature provided sufficient standards to guide the private delegate in its work?
See Boll Weevil, 952 S.W.2d at 472.
*875 If a particular statute delegates legislative authority to a private entity and these eight factors weigh against the delegation, then the statute is unconstitutional. See Boll Weevil, 952 S.W.2d at 469.
A. SECTION 26.179 DELEGATES LEGISLATIVE POWER TO PRIVATE LANDOWNERS
The City asserts that Section 26.179 delegates legislative power to private landowners. We agree.
TEX. WATER CODE § 26.179(g).
WATER CODE § 26.179(i).
The powers delegated to the landowners are legislative powers. Water quality regulation is a legislative power. See Maple Run at Austin Mun. Util. Dist. v. Monaghan, 931 S.W.2d 941, 947 (Tex.1996) (“[A]ll Texans have an interest in protecting this State’s natural resources”).
The Legislature has generally delegated state water quality regulation to the TNRCC. See TEX. WATER CODE §§ 36.001–.374 (groundwater districts) and §§ 51.001–.875 (water control and improvement districts).
Here, the Legislature has provided general water quality objectives in Higginbotham, 143 S.W.2d at 87.
The landowners’ power to exempt themselves from the enforcement of municipal regulations is also a legislative power. By allowing landowners to decide which municipal regulations are enforceable on their property, LJD Properties, Inc., 753 S.W.2d at 207.
Therefore, section 26.179 delegates legislative power to private landowners because it gives them legislative duties and *877 powers, the exercise of which may adversely affect public interests, including the constitutionally-protected public interest in water quality.
Consistent with our holding, a number of courts have held that laws authorizing private property owners to veto or exempt themselves from otherwise applicable regulations or to regulate their own property are delegations of legislative power. See Revne v. Trade Comm’n, 113 Utah 155, 192 P.2d 563, 568 (1948)(holding that a statute allowing a group representing seventy percent of the barbers in a city to initiate a price schedule to submit to the State Barber Board for approval was an unconstitutional delegation).
In County of Fairfax, the Virginia Supreme Court held that a state law that required county supervisors to get unanimous consent from all affected landowners before enacting certain zoning regulations was an unconstitutional delegation of legislative power. See Bayside Timber, 97 Cal.Rptr. at 434–37.
Finally, we note that the delegation here presents the very concerns this Court identified in Boll Weevil. See section 26.179 delegates legislative power to private landowners.
B. THE DISSENTING OPINIONS
Most of Justice Owen’s dissent is nothing more than inflammatory rhetoric, and thus merits no response. We note only that the two legal arguments Justice Owen does make are both based on a flawed premise. First, she argues that section 26.179 of the Water Code is a constitutional delegation.
Next, as the dissent in Boll Weevil argued, Justice Abbott argues that we have improperly applied the standard of review for facial challenges. 22 S.W.3d at 900; Boll Weevil, 952 S.W.2d at 473. Thus, the fact that the TNRCC actually denied two water quality plans does not render the statute constitutional. Because the overall statutory scheme is itself unconstitutional, the statute always operates unconstitutionally, regardless of whether the TNRCC approves or denies a particular plan. Indeed, as we explain in our discussion of the Boll Weevil factors, despite the TNRCC’s power to deny water quality plans, there is no meaningful governmental review of the landowners’ actions, there is inadequate representation of those affected by the landowners’ actions, the landowners have pecuniary interests that may conflict with their public function, and the delegation is broad in duration and extent. In sum, that the application of an unconstitutional statute can, in some cases, reach the same result as the application of a constitutional statute does not make the unconstitutional statute constitutional.
Before we consider the constitutionality of the delegation in depth, we respond to Justice Abbott’s claim that there is no delegation at all. First, Justice Abbott argues that Thomas Cusack Co. v. City of Chicago, 242 U.S. 526, 531, 37 S.Ct. 190, 61 L.Ed. 472 (1917) (statute allowing adjoining landowners to waive a zoning prohibition against billboards on their neighbor’s property).
The landowners create a water quality and land use plan, thereby exempting themselves from the enforcement of municipal regulations that are inconsistent with or inconvenient to those plans, and thus cannot be enforced on their property. See GOV’T CODE § 2001.171 (providing judicial review of state agency decisions).
Justice Abbott also argues that, unlike the delegation in Boll Weevil, the landowners do not have authoritative power over the private property of others. Cf. Boll Weevil, 952 S.W.2d at 457–58.
Here, the landowners regulate water quality and decide which municipal regulations are enforceable only on their own property and the property of their successors in interests. See (h). Nevertheless, the landowners’ powers over water quality protection and their power to exempt themselves from the enforcement of municipal ordinances could adversely affect the public interest, and more specifically, the interests of downstream water users and the landowners’ neighbors. Therefore, the landowners, like the foundation in Boll Weevil, are charged with legislative duties *880 and powers, the exercise of which could affect the public interest and specific third parties.
Next, Justice Abbott contends that classifying section 26.179 entrusts them with public duties and gives them broad discretion to decide whether, how, and to what extent to achieve those duties.
The remainder of the Justice Abbott’s argument about why Boll Weevil, 952 S.W.2d at 471.
C. SECTION 26.179’S DELEGATION IS UNCONSTITUTIONAL
Because section 26.179 is an unconstitutional delegation of legislative powers to private landowners.
1. Governmental Review
This first factor weighs heavily against the delegation. This is significant because, as we have said, this factor is relatively important in analyzing delegations to private interested parties.
Section 26.179 vests the TNRCC with only limited review over the landowners’ water quality protection plans and their effectiveness in protecting water quality. Further, neither the TNRCC nor any other governmental agency has the power to review the landowners’ decisions about which municipal regulations will be enforceable on their property.
First, we agree with the Landowners and the dissent that under TEX. WATER CODE § 26.179(m).
But section 26.179’s requirements.
Landowners with 1,000 acres or more need not seek TNRCC approval until after their water quality plans or amendments are already in effect. See TEX. WATER CODE § 26.179(g). Thus, landowners owning 1,000 acres or more can begin to develop land and implement water quality plans even before the TNRCC begins its review. See 21 Tex. Reg. 11607 (1996) ( “[C]onstruction is allowed by provisions of the statute ... upon proper designation of the zone and submittal of the water quality plan for the zone to the executive director for review.”).
This is contrary to the rule in similar regulatory schemes. See WATER CODE § 11.121 (“Except as provided in ... this code, no person may ... begin construction of any work designed for the storage, taking, or diversion of water without first obtaining a permit from the commission.”); 30 TEX. ADMIN. CODE § 213.2 (“[T]he owner of an existing or proposed site, such as a residential or commercial development, ... who proposes new or additional regulated activities under this chapter, must file for and receive [TNRCC] executive director approval of all appropriate applications prior to commencement of construction of new or additional regulated activities”); 30 TEX. ADMIN. CODE § 213.4(a)(1) (“No person may commence the construction of any regulated activity until an Edwards Aquifer protection plan or modifications to the plan ... has been reviewed and approved by the [TNRCC] executive director.”).
The TNRCC must approve a plan or amendment to a plan unless the TNRCC finds that implementing it will not reasonably maintain background levels of water quality or capture and retain the first 1.5 inches of rainfall. See City of San Antonio v. Texas Water Comm’n, 407 S.W.2d 752, 758 (Tex.1966) (the party appealing the TNRCC’s order has the burden to show that the evidence does not reasonably support the order).
Once the TNRCC approves a plan, the statute requires landowners purporting to maintain background levels of water quality to monitor water quality. See TEX. WATER CODE § 26.179(b)(2).
The TNRCC reviews the landowners’ modifications and determines whether they modify plans and practices to the extent required under the statute, that is, to the extent reasonably feasible and practical. See TEX. WATER CODE § 26.179(g).
Therefore, regardless of the modifications actually necessary to achieve section 26.179’s water quality objectives, may not be reasonably feasible and practical, and consequently not required. And, as development continues in zones of 1,000 acres or more during TNRCC review of modifications, necessary modifications likely become less feasible and practical.
The TNRCC has even less enforcement power in zones purporting to retain the first 1.5 inches of rainfall from developed areas. The statute states that, for these zones, “[w]ater quality monitoring shall not be required.” TEX. WATER CODE § 26.179(b). Not surprisingly, all but one of the zones filed with the TNRCC elected to retain the first 1.5 inches of rainfall from developed areas instead of maintaining background levels of water quality. See 21 Tex. Reg. 11605 (1996).
Finally, the TNRCC has very limited power over the decision to designate a zone. The TNRCC does have pre-approval power over zone designations of 500 to 1,000 acres. But the statute does not allow the TNRCC to de-designate any zone for noncompliance with section 26.179 or other water quality protection laws and regulations. This fact similarly weighs against the delegation here.
We conclude that, while the landowners’ powers under section 26.179 are subject to some TNRCC review, the review is not meaningful as the first factor requires. Instead, the statute allows a landowner with 1,000 acres or more to develop before TNRCC approval and during the appeal of a TNRCC denial. Further, it allows landowners of zones of all sizes to lock into an insufficient water quality protection plan by developing under the plan before any monitoring for the plan’s effectiveness in protecting water quality is required. And, as development continues in larger zones during TNRCC review and the appellate *884 process, necessary modifications become less and less feasible and practical, and are therefore less likely to be required.
While the landowners’ water quality plans are subject to some TNRCC review, the landowners’ authority to decide which municipal regulations can be enforced on their property is not subject to any TNRCC review. By designating a zone, a landowner exempts himself from the enforcement of municipal ordinances relating to land use, nuisance abatement, pollution control, water quality, subdivision requirements, and any other municipal environmental regulation that is “inconsistent with the land use plan and the water quality plan or which in any way limit, modify, or impair the ability to implement and operate the water quality plan and the land use plan within the zone as filed.” TEX. section 26.179 does provide some TNRCC oversight of water quality protection plans, it does not give the TNRCC or any other governmental agency the authority to review the landowners’ power to exempt themselves from the enforcement of their choice of city regulations and powers. Of course, courts could eventually decide disputes about whether certain municipal ordinances are inconsistent with water quality and land use plans. But, as discussed earlier, the landowner makes the initial decision about which municipal regulations can be enforced on its property without any governmental oversight.
Because the landowners’ powers under section 26.179 are not subject to meaningful governmental review, the first factor weighs heavily against the delegation.
2. Representation of Affected Persons
Section 26.179 does not afford adequate representation to those affected by the landowners’ actions. Therefore, this factor also weighs against the delegation.
As discussed previously, the landowners’ actions in creating and implementing water quality plans could adversely affect neighbors, downstream water users, and the public generally. The statute requires that the landowners give notice of zone designations to the municipality within whose ETJ a zone is located and the county in which the property is located. See TEX. WATER CODE §§ 26.020, .024, .028,. 029, .046.
The statute expressly provides landowners the right to appeal TNRCC denial of a water quality plan to a court of competent jurisdiction. See section 26.179 plans or TNRCC approval of plans.
In addition, the landowners alone decide which municipal regulations cannot be enforced in their zones. The statute requires that landowners give applicable counties and municipalities notice of their zone designations, which includes a description of proposed land uses and a water quality plan. See (f). This provides constructive notice of the land use and water quality plans to affected members of the public. But the statute does not require the landowners to notify anyone, including neighboring property owners or downstream water users, about the municipal regulations that cannot be enforced on their property because they interfere with the land use or water quality plan. And, although affected persons retain their common law causes of action, the statute does not provide any right of review of the landowners’ decisions about their land use or water quality plans to affected individuals or to the municipality.
Because the statute provides inadequate representation of persons affected by the delegates’ actions, this factor weighs against the delegation.
3. Power to Apply the Law to Particular Individuals
This factor weighs in favor of the delegation. The landowners have the power to create water quality plans and apply them to their property and to decide which municipal regulations are enforceable on their property. Again, these powers may affect particular individuals, such as neighboring landowners and downstream water users. But TEX. WATER CODE § 26.179(h) (“The water quality plan for a zone shall be a covenant running with the land.”).
In Boll Weevil, this factor weighed against the delegation because of the foundation’s power to directly apply the law to third parties. See TEX. WATER CODE § 26.179(h). Therefore, we conclude that this factor weighs in favor of the delegation.
4. Pecuniary Interest and Public Function
As we stated earlier, this factor weighs heavily in delegations to private interested parties. We conclude that it weighs heavily against the delegation here.
Landowners under section 26.179 allows landowners to regulate water quality and to decide which municipal regulations cannot be enforced on their property. Because these powers affect the public interest, the landowners do have a public function. Undeniably, the landowners’ pecuniary interest in maximizing profit and minimizing costs may conflict with this public function.
5. Criminal Authority
The fifth factor weighs in the delegation’s favor. Although section 26.179 allows *886 landowners to exempt themselves from municipal regulations that may be otherwise enforced with criminal penalties, it does not empower landowners to define criminal acts or impose criminal sanctions.
6. Duration, Extent, and Subject Matter of Delegation
The sixth factor weighs against the delegation. The delegation’s subject matter is fairly narrow. The statute delegates to private landowners the power to govern water quality and land use only on their own property and that of their successors in interest. And, the landowners are still subject to existing state and TNRCC water quality regulations and additional regulations necessary to comply with federal standards.
But the extent of the delegation is fairly broad. Landowners have the power to create, implement, and enforce their own water quality plans. See TEX. WATER CODE § 26.179(i).
The delegation to the landowners is not narrow in duration either. The statute expressly provides that the water quality plan is a covenant running with the land. See TEX. WATER CODE § 26.029 (“In each permit, the commission shall prescribe the conditions on which it is issued, including the duration of the permit.”); 30 TEX. ADMIN. CODE § 213.4(h) (“[A]pproval of an Edwards Aquifer protection plan will expire two years after the date of initial issuance, unless prior to the expiration date, substantial construction related to the approved plan has commenced.”). Therefore, this factor also weighs against the delegation.
7. Qualifications or Training
section 26.179’s water quality objectives than would requiring the landowners themselves to have engineering expertise.
Specifically, the statute requires that a professional engineer certify that a landowner’s water quality plan achieves one of TEX. WATER CODE § 26.179(j)(2). Therefore, the statute provides a check on the landowner’s discretion in formulating a water quality plan and a subdivision plat to comply with that plan.
In contrast, neither the engineer nor any other party with qualifications or training has any role in the landowner’s decisions about which municipal regulations the landowner’s water quality and land use plans will comply with and are therefore enforceable on its property.
Therefore, we conclude that this seventh factor weighs neither for nor against the delegation.
8. Sufficiency of Legislative Standards to Guide Delegates
This last factor weighs neither for nor against the delegation. TEX. WATER CODE § 26.179(k).
But section 26.179’s requirements or the TNRCC in reviewing modifications to plans.
In Proctor, this Court held that a delegation of authority to private entities to select “qualified neutral arbitrators” to hear civil service commission appeals provided adequate guidance. Proctor, 972 S.W.2d at 738. In that case, however, the assessment of qualifications was uniquely within the delegate’s expertise, and the term “neutral” was sufficiently specific to reflect legislative intent. Moreover, in Proctor, the authority delegated was narrow—to forward names of potential arbitrators for selection. The criteria “qualified” and “neutral” were well-suited for this narrow purpose. This contrasts *888 starkly with the delegation here, in which the elastic standards “reasonably feasible and practical” provide little guidance to the landowners in exercising their relatively broad authority.
Similarly, WATER CODE § 26.179(i) (emphasis added). This seems to allow the landowners to exempt themselves from the enforcement of municipal laws for any reason as long as it is somehow related to their water quality and land use plans.
This last factor weighs neither for nor against the delegation. But the Boll Weevil factors as a whole weigh against the constitutionality of delegation. Therefore, we conclude that Doe, 915 S.W.2d at 473.
IV. ATTORNEY’S FEES
We conclude that the trial court did not abuse its discretion in denying the Landowners’ claim for attorney’s fees. Under the Texas Uniform Declaratory Judgment Act, the trial court has discretion in awarding attorney’s fees “as are equitable and just.” Barshop, 925 S.W.2d at 637. We affirm the trial court’s judgment denying the Landowners’ claims for attorney’s fees.
We hold that section 26.179 of the Texas Water Code is an unconstitutional delegation of legislative power to private landowners. We also hold that the trial court did not abuse its discretion in denying the Landowners’ claims for attorney’s fees. Accordingly, we affirm the trial court’s judgment.
Justice ABBOTT joined.
Justice OWEN joined.
Justice ABBOTT, dissenting.
I strongly dissent from what the Court has wrought today. The importance of this case to private property rights and to the separation of powers between the judicial and legislative branches of government cannot be overstated. The Legislature is forbidden by the Texas Constitution, the Court says, from allowing property owners to make decisions about how they use and develop their own land. While the Constitution certainly permits the Legislature to enact laws that preserve and conserve the State’s natural resources, there is nothing in the Constitution that requires the Legislature to exercise that power in any particular manner. How the Legislature chooses to regulate is left to the Legislature, not this Court. Our Constitution plainly states that in preserving and conserving our natural resources, “the Legislature shall pass all such laws as may be appropriate thereto.” TEX. CONST. art. XVI, § 59(a). Instead of seeking to uphold the laws that the Legislature has passed toward that end, the Court has seized upon the rarely used nondelegation doctrine to claim constitutional authority for an unprecedented restriction of the Legislature’s power and an equally unprecedented restriction on private property rights.
*889 The Court’s holding today raises profoundly disturbing questions. Does the way in which the Legislature regulates water quality on private property in rural areas unconstitutionally delegate legislative powers to private property owners? Does the Legislature’s regulation of water quality in suburban areas that are outside a city’s extraterritorial jurisdiction amount to an unconstitutional delegation? The answer to these questions should be no, and when the Court’s opinion is examined with that in mind, the dearth of logic in the Court’s decision is apparent.
I am at a loss to understand what is driving the Court’s opinion, since it clearly is not reasoned decision-making. I know only that the Court today exercises raw power to override the will of the Legislature and of the people of Texas. The Court strikes a severe blow to private property rights and usurps authority that is reserved to another branch of government—the Legislature. If the Court has any intention of applying the holdings in this case to future cases, the Court will impair all manner of property rights, and hamstring the Legislature’s ability to function as the Texas Constitution and the people of Texas intend that it should.
This case should have been resolved by applying two straightforward principles of law. The first is that it is not an unconstitutional delegation to restore to private landowners in a city’s extraterritorial jurisdiction property rights that other landowners across the state enjoy. The second is that the City of Austin had authority to regulate within its ETJ only because the Legislature granted it that authority. What the Legislature grants, it may take away from its own subdivisions.
The Water Code provisions at issue apply to the ETJs of certain cities.1 The Court spends a considerable amount of time characterizing these provisions. I include them in Appendix A so that readers can see for themselves what the Code provisions say.
The Court does not and cannot dispute that the Legislature’s purpose in promulgating these statutes was to balance several considerations, chief among them being the need to maintain water quality and the desire not to unduly hinder economic development in this State. See section 26.179,4 the Legislature restored to landowners some of the freedom from regulation that they enjoyed before their land was engulfed by a city’s ETJ.
Briefly summarized, the Legislature gave large landowners within certain cities’ ETJs an election. Owners of at least 500 contiguous acres of land in those ETJs could decide either to continue to abide by the city’s water quality ordinances adopted under Section 26.179 and regulations promulgated under it by the Texas Natural Resources Conservation Commission set forth specific directions as to how these water quality levels were to be achieved *890 and verified. See id.; 30 TEX. ADMIN. CODE §§ 216.1–.11. (1996).
The Court concedes, as it must, that in addition to the requirements of section 26.179, landowners are required to meet all other then-existing state water quality regulations as well as all future regulations necessary to comply with federal standards, and that landowners are subject to the TNRCC’s power to enforce those regulations. See 22 S.W.3d at 880. Thus, landowners within an affected city’s ETJ are subject to more state regulation than are landowners just a few feet outside an ETJ and rural landowners all across Texas.
The question, then, concerning landowners within and outside cities’ ETJs is whether the State’s scheme of regulating water quality amounts to an unconstitutional delegation of legislative power. I turn to that question.
The Court’s opinion focuses extensively on the types of city ordinances that would no longer apply within an ETJ if a landowner elected to create a water quality protection zone and to comply with State as opposed to city water quality standards. See, e.g., 22 S.W.3d at 875. Under TEX. WATER CODE § 26.179(i). And the Legislature prohibited a city from annexing land in such a zone until the earlier of twenty years from the date the zone is designated or when at least ninety percent of all facilities and infrastructure described in the water quality plan for the zone have been completed. See id.
The Court finds these aspects of section 26.179 particularly offensive. Yet a city cannot enforce any of its ordinances even one yard beyond its ETJ. Does this mean that landowners just outside a city’s ETJ have been delegated legislative power because they may use their land free from regulation by a city? Obviously, the answer is no. The vast majority of land in Texas lies outside the boundaries of a city’s ETJ. It is ludicrous to suggest that, since there are no regulations comparable to city nuisance and environmental regulations in rural areas or suburban areas outside ETJs, the Legislature has unconstitutionally allowed landowners to develop their property free from this type of governmental oversight.
The Court also totally ignores the fact that a city could not regulate water quality within its ETJ at all unless the Legislature gave it that authority. It is not an unconstitutional delegation when the Legislature restores landowners within a city’s ETJ to the same status as those outside a city’s ETJ. Under section 26.179, the Legislature simply returned to landowners within an ETJ rights that other landowners all across Texas enjoy.
The rhetoric that is laced throughout the Court’s opinion, such as the statement that “landowners’ power to exempt themselves from the enforcement of municipal regulations is also a legislative power,” 22 S.W.3d at 875, is no substitute for sound analysis of fundamental legal principles and concepts. The Court elevates a city’s power to regulate over that of the State. This is indefensible. If the State disapproves of regulations that cities have extended to their ETJs, the State may abolish those regulations or even abolish the ETJs in their entirety. It follows as surely as night follows day that a State may therefore release landowners in an ETJ from the grip of city regulation without unconstitutionally delegating legislative power.
The provision in the Texas Constitution that prohibits the Legislature from delegating its legislative powers to private citizens *891 is Proctor v. Andrews, 972 S.W.2d 729, 732–33 (Tex.1998). Historically, what private property owners have chosen to do with their own land has not been a “legislative power.”
In 1917, the Texas Constitution was amended to provide that the preservation and conservation of natural resources, including water, were “public rights and duties” and that “the Legislature shall pass all such laws as may be appropriate thereto.” TEX. CONST. art. XVI, Article XVI, Section 59.
The Court’s quarrel with the Legislature is, at bottom, not a question of delegation, but a question of whether, in the Court’s view, the laws that the Legislature has passed are “appropriate” to preserve and conserve water. Id. The Court has overstepped constitutionally prescribed boundaries. It is for the Legislature to decide what laws are “appropriate” to conserve water. That is not a function of this or any other court.
The statutes under scrutiny in this case permit landowners to make decisions, within limits, about how to use their own property. The Court concedes that Bayside Timber Co. v. Board of Supervisors, 20 Cal.App.3d 1, 97 Cal.Rptr. 431 (1971). That is not what is at issue here.
The Court says that “[w]ater quality regulation is a legislative power.” 22 S.W.3d at 875. I agree. But I disagree with the Court that the Legislature has delegated water quality regulation to landowners under (m).
The Court insists that section 26.179 does not give landowners any authority over the property of others. 22 S.W.3d at 877. Directing landowners to file and implement a water quality control plan that applies only to their own property does not amount to a delegation of legislative power.
The Legislature has determined the consequences if a landowner fails to meet the State-prescribed water quality standards. The Court obviously believes that those consequences are not severe enough. It extensively criticizes the Legislature’s scheme for regulating water quality, apparently finding it too minimal. See, e.g., 22 S.W.3d at 878–79. But that is not a call for this Court to make. The Legislature is empowered by the Texas Constitution to pass “all such laws as may be appropriate” to preserve and conserve water. TEX. CONST. art. XVI, § 59. The Legislature has done so. It has not delegated that responsibility to landowners. The Court cannot use its power to strike down legislation as unconstitutional simply because the Court does not think that the legislation goes far enough to maintain water quality in Austin, Texas.
The Court’s determination to strike down water quality laws rather than trying to uphold them is apparent when it applies the Boll Weevil factors. I would not reach those factors because there has been no delegation here. But I think it is important to illuminate the shallowness and transparency of the Court’s reasoning in its discussion of these factors and the Court’s failure to abide by the longstanding common-law tenet that “ ‘[i]f under any possible state of facts an act would be constitutional, the courts are bound to presume such facts exist.’ ” Corsicana Cotton Mills, Inc. v. Sheppard, 123 Tex. 352, 71 S.W.2d 247, 250 (1934)).
Although the Court concludes that the third and fifth Boll Weevil factors weigh in favor of finding the “delegation” constitutional, the Court finds that the remaining factors tip the scales the other way. First, the Court says, there is no meaningful governmental review. This is belied by the fact that the TNRCC has rejected landowners’ plans for a water quality protection zone under Garcia, 893 S.W.2d at 518 (emphasis added). How can the Court justify an ivory-tower pronouncement that this statute can never afford meaningful agency review when over in the agency offices meaningful review is actually happening, unless the Court has simply determined to say whatever it takes, true or not, to strike down this statute?
The Court also glosses over the fact that unless a zone has 1,000 or more acres, the plan cannot go into effect unless and until the TNRCC approves it. Then, the Court finds fault with the fact that the Legislature has placed the burden of proof on the TNRCC if an application is denied. Are we really prepared to say that the constitutionality of a statute turns on who has the burden of proof? Why should the State not have the burden of proof here? The State has the burden of proof when it seeks to restrict the exercise of rights such as those to life and liberty.
The Court’s obsession with elevating city ordinances above state regulation also crops up again in its analysis of the adequacy of governmental regulation and in its analysis of the fourth and sixth Boll Weevil factors. See 22 S.W.3d at 885, 886–87. But, as discussed above, the facts that the State rather than a city regulates, and that the State’s regulations are less onerous than a city’s, do not mean that the State has delegated its regulatory power to the private sector.
In analyzing the second Boll Weevil factor, the Court faults section 26.179 because it does not provide for public hearings to give third parties an opportunity to be heard and it does not give a right of appeal to third parties. See 22 S.W.3d at 884–85. When a landowner in rural West Texas, who is far from a city’s ETJ, decides to subdivide and develop his property, is a hearing necessary so that neighbors or downstream water users can lodge complaints? If the Legislature does not provide some means for third parties to appeal a landowner’s decision to subdivide and develop rural property, has the Legislature unconstitutionally delegated legislative power to the private sector? I submit that the answer to these questions is a resounding “no,” and that the answer should be the same for other property owners in this state, regardless of whether their land is located within a city’s ETJ.
I fully join in JUSTICE ABBOTT’S dissent, including his analysis of the City’s other constitutional challenges to section 26.179 of the Texas Water Code is not unconstitutional for any of the reasons advanced by the City of Austin.
* * * * *
In sum, the Court says that landowners trapped within a city’s ETJ are somehow on different constitutional footing than rural or even suburban landowners who are not in a city’s limits or a city’s ETJ. The State must, the Court says, impose extensive regulations in place of city ordinances or else the State has unconstitutionally delegated legislative authority. Because the Court’s conclusion is so obviously flawed and because the Court’s ruling is an impermissible incursion into the domain of the Legislature, I dissent.
1995 Texas Water Code Provisions
§ 26.003. Policy of This Subchapter
It is the policy of this state and the purpose of this subchapter to maintain the quality of water in the state consistent with the public health and enjoyment, the propagation and protection of terrestrial and aquatic life, the operation of existing industries, and the economic development of the state; to encourage and promote the development and use of regional and areawide waste collection, treatment, and disposal systems to serve the waste disposal needs of the citizens of the state; and to *894 require the use of all reasonable methods to implement this policy.
§ 26.011. In General
Except as otherwise specifically provided, the commission shall administer the provisions of this chapter and shall establish the level of quality to be maintained in, and shall control the quality of, the water in this state as provided by this chapter. Waste discharges or impending waste discharges covered by the provisions of this chapter are subject to reasonable rules or orders adopted or issued by the commission in the public interest. The commission has the powers and duties specifically prescribed by this chapter and all other powers necessary or convenient to carry out its responsibilities. This chapter does not apply to discharges of oil covered under Chapter 40, Natural Resources Code.
§ 26.177. Water Pollution Control Duties of Cities
(a) Every city in this state having a population of 5,000 or more inhabitants shall, and any city of this state may, establish a water pollution control and abatement program for the city. The city shall employ or retain an adequate number of personnel on either a part-time or full-time basis as the needs and circumstances of the city may require, who by virtue of their training or experience are qualified to perform the water pollution control and abatement functions required to enable the city to carry out its duties and responsibilities under this section.
(b) The water pollution control and abatement program of a city shall encompass the entire city and, subject to Section 26.179 of this code, 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 services and functions which, in the judgment of the city or as may be reasonably required by the commission, will provide effective water pollution control and abatement for the city, including the following services and functions:
(1) the development and maintenance of an inventory of all significant waste discharges into or adjacent to the water within the city and, where the city so elects, within the extraterritorial jurisdiction of the city, without regard to whether or not the discharges are authorized by the commission;
(2) the regular monitoring of all significant waste discharges included in the inventory prepared pursuant to Subdivision (1) of this subsection;
(3) the collecting of samples and the conducting of periodic inspections and tests of the waste discharges being monitored to determine whether the discharges are being conducted in compliance with this chapter and any applicable permits, orders, or rules of the commission, and whether they should be covered by a permit from the commission;
(4) in cooperation with the commission, a procedure for obtaining compliance by the waste dischargers being monitored, including where necessary the use of legal enforcement proceedings;
(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; and
(6) any additional services, functions, or other requirements as may be prescribed by commission rule.
(c) The water pollution control and abatement program required by Subsections (a) and (b) of this section must be submitted to the commission for review and approval. The commission may adopt rules providing the criteria for the establishment *895 of those programs and the review and approval of those programs.
(d) Any person affected by any ruling, order, decision, ordinance, program, resolution, or other act of a city relating to water pollution control and abatement outside the corporate limits of such city adopted pursuant to this section or any other statutory authorization may appeal such action to the commission or district court. An appeal must be filed with the commission within 60 days of the enactment of the ruling, order, decision, ordinance, program, resolution, or act of the city. The issue on appeal is whether the action or program is invalid, arbitrary, unreasonable, inefficient, or ineffective in its attempt to control water quality. The commission or district court may overturn or modify the action of the city. If an appeal is taken from a commission ruling, the commission ruling shall be in effect for all purposes until final disposition is made by a court of competent jurisdiction so as not to delay any permit approvals.
(e) The commission shall adopt and assess reasonable and necessary fees adequate to recover the costs of the commission in administering this section.
§ 26.179. Nonpoint Source Water Pollution Control Programs of Certain Municipalities
(a) In this section, “water quality protection” may be achieved by:
(1) maintaining background levels of water quality in waterways; or
(2) capturing and retaining the first 1.5 inches of rainfall from developed areas.
(b) For the purpose of Subsection (a)(1), “maintaining background levels of water quality in waterways” means maintaining background levels of water quality in waterways comparable to those levels which existed prior to new development as measured by the following constituents: total suspended solids, total phosphorus, total nitrogen, and chemical and biochemical oxygen demand. Background levels shall be established either from sufficient data collected from water quality monitoring at one or more sites located within the area designated as a water quality protection zone or, if such data are unavailable, from calculations performed and certified by a registered professional engineer utilizing the concepts and data from the National Urban Runoff Program (NURP) Study or other studies approved by the Texas Natural Resource Conservation Commission (commission) for the constituents resulting from average annual runoff, until such data collected at the site are available. Background levels for undeveloped sites shall be verified based on monitoring results from other areas of property within the zone prior to its development. The monitoring shall consist of a minimum of one stage (flow) composite sample for at least four storm events of one-half inch or more of rainfall that occur at least one month apart. Monitoring of the four constituents shall be determined by monitoring at four or more locations where runoff occurs. A minimum of four sample events per year for each location for rainfall events greater than one-half inch shall be taken. Monitoring shall occur for three consecutive years after each phase of development occurs within the Water Quality Protection Zone. Each new phase of development, including associated best management practices, will require monitoring for a three-year period. The results of the monitoring and a description of the best management practices being used throughout the zone shall be summarized in a technical report and submitted to the commission no later than April 1 of each calendar year during development of the property, although the commission may determine that monitoring is no longer required. The commission shall review the technical report. If the performance monitoring and best management practices indicate that background levels were not maintained during the previous year, the owner or developer of land within the water quality protection zone shall:
*896 (1) modify water quality plans developed under this section for future phases of development in the water quality protection zone to the extent reasonably feasible and practical; and
(2) modify operational and maintenance practices in existing phases of the water quality protection zone to the extent reasonably feasible and practical.
Water quality monitoring shall not be required in areas using the methodology described by Subsection (a)(2).
(c) This section applies only to those areas within the extraterritorial jurisdiction, outside the corporate limits of a municipality with a population greater than 5,000, and in which the municipality either:
(1) has enacted or attempted to enforce three or more ordinances or amendments thereto attempting to regulate water quality or control or abate water pollution in the area within the five years preceding the effective date of this Act, whether or not such ordinances or amendments were legally effective upon the area; or
(2) enacts or attempts to enforce three or more ordinances or amendments thereto attempting to regulate water quality or control or abate water pollution in the area in any five-year period, whether or not such ordinances or amendments are legally effective upon the area.
(d) The owner or owners of a contiguous tract of land in excess of 1,000 acres that is located within an area subject to this section may designate the tract as a “water quality protection zone.” Upon prior approval of the commission, the owner of a contiguous tract of land containing less than 1,000 acres, but not less than 500 acres, that is located within an area subject to this section may also designate the tract as a “water quality protection zone.” The tract shall be deemed contiguous if all of its parts are physically adjacent, without regard to easements, rights-of-way, roads, streambeds, and public or quasi-public land, or it is part of an integrated development under common ownership or control. The purpose of a water quality protection zone is to provide the flexibility necessary to facilitate the development of the land within the zone, but which also is intended to result in the protection of the quality of water within the zone.
(e) A water quality protection zone designated under this section shall be described by metes and bounds. The designation shall include a general description of the proposed land uses within the zone, a water quality plan for the zone, and a general description of the water quality facilities and infrastructure to be constructed for water quality protection in the zone.
(f) Creation of a water quality protection zone shall become immediately effective upon recordation of the designation in the deed records of the county in which the land is located. The designation shall be signed by the owner or owners of the land, and notice of such filing shall be given to the city clerk of the municipality within whose extraterritorial jurisdiction the zone is located and the clerk of the county in which the property is located.
(g) The water quality plan for a zone, including the determination of background levels of water quality, shall be signed and sealed by a registered professional engineer acknowledging that the plan is designed to achieve the water quality protection standard defined in this section. On recordation in the deed records, the water quality plan shall be submitted to and accepted by the commission for approval, and the commission shall accept and approve the plan unless the commission finds that implementation of the plan will not reasonably attain the water quality protection as defined in this section. A water quality plan may be amended from time to time on filing with the commission, and all such amendments shall be accepted by the commission unless there is a finding that the amendment will impair the attainment *897 of water quality protection as defined in this section. The commission shall adopt and assess reasonable and necessary fees adequate to recover the costs of the commission in administering this section. The commission’s review and approval of a water quality plan shall be performed by the commission staff that is responsible for reviewing pollution abatement plans in the county where the zone is located. The review and approval of the plan shall be completed within 120 days of the date it is filed with the commission. A public hearing on the plan shall not be required, and acceptance, review, and approval of the water quality plan or water quality protection zone shall not be delayed pending the adoption of rules. The commission shall have the burden of proof for the denial of a plan or amendments to a plan, and any such denial shall be appealable to a court of competent jurisdiction. The water quality plan, or any amendment thereto, shall be effective upon recordation of the plan or the amendment in the deed records and shall apply during the period of review and approval by the commission or appeal of the denial of the plan or any amendment.
(h) The water quality plan for a zone shall be a covenant running with the land.
(i) A municipality may not enforce in a zone any of its ordinances, land use ordinances, rules, or requirements including, but not limited to, the abatement of nuisances, pollution control and abatement programs or regulations, water quality ordinances, subdivision requirements, other than technical review and inspections for utilities connecting to a municipally owned water or wastewater system, or any environmental regulations which are inconsistent with the land use plan and the water quality plan or which in any way limit, modify, or impair the ability to implement and operate the water quality plan and the land use plan within the zone as filed; nor shall a municipality collect fees or assessments or exercise powers of eminent domain within a zone until the zone has been annexed for the municipality. A water quality protection zone may be annexed by a municipality only after the installation and completion of 90 percent of all facilities and infrastructure described in the water quality plan for the entire zone as being necessary to carry out such plan or the expiration of 20 years from the date of designation of the zone, whichever occurs first.
(j) Subdivision plats within a water quality protection zone shall be approved by the municipality in whose extraterritorial jurisdiction the zone is located and the commissioners court of the county in which the zone is located if:
(1) the plat complies with the subdivision design regulations of the county; and
(2) the plat is acknowledged by a registered professional engineer stating that the plat is in compliance with the water quality plan within the water quality protection zone.
(k) A water quality protection zone implementing a water quality plan which meets the requirements of this section shall be presumed to satisfy all other state and local requirements for the protection of water quality; provided, however, that:
(1) development in the zone shall comply with all state laws and commission rules regulating water quality which are in effect on the date the zoning is designated; and
(2) nothing in this section shall supersede or interfere with the applicability of water quality measures or regulations adopted by a conservation and reclamation district comprising more than two counties and which apply to the watershed area of a surface lake or surface reservoir that impounds at least 4,000 acre-feet of water.
(l )(1) One or more of the provisions of this section may be waived by the owner or owners of property that is or becomes subject to an agreement entered into after the effective date of this Act between the *898 owner or owners of land within the zone and the municipality. The agreement shall be in writing, and the parties may agree:
(A) to guarantee continuation of the extraterritorial status of the zone and its immunity from annexation by the municipality for a period not to exceed 15 years after the effective date of the agreement;
(B) to authorize certain land uses and development within the zone;
(C) to authorize enforcement by the municipality of certain municipal land use and development regulations within the zone, in the same manner such regulations are enforced within the municipality’s boundaries, as may be agreed by the landowner and the municipality;
(D) to vary any watershed protection regulations;
(E) to authorize or restrict the creation of political subdivisions within the zone; and
(F) to such other terms and considerations the parties consider appropriate, including, but not limited to, the continuation of land uses and zoning after annexation of the zone, the provision of water and wastewater service to the property within the zone, and the waiver or conditional waiver of provisions of this section.
(2) An agreement under this section shall meet the requirements of and have the same force and effect as an agreement entered into pursuant to Section 42.046, Local Government Code.
(m) In addition to the requirements of Subsections (a)(1) and (a)(2), the commission may require and enforce additional water quality protection measures to comply with mandatory federal water quality requirements, standards, permit provisions, or regulations.
(n) This section does not apply to an area within the extraterritorial jurisdiction of a municipality with a population greater than 900,000 that has extended to the extraterritorial jurisdiction of the municipality an ordinance whose purpose is to prevent the pollution of an aquifer which is the sole or principal drinking water source for the municipality.
I disagree with the Court’s holding that section 26.1791 is not an unconstitutional delegation and that it does not violate any of the other constitutional provisions asserted by the City in its motion for summary judgment. Accordingly, I dissent.
This case is not so much about water quality as it is about the power of local governments to regulate in their extraterritorial jurisdictions (ETJs). Local governments’ power to regulate water quality in their ETJs derives solely from the authority granted them by the Legislature in section 26.177. Today, the Court strips the Legislature of its legislative power to limit the regulatory authority it granted to local governments, and the Court improperly vests regulatory power in the hands of the City of Austin. The Court’s decision usurps the Legislature’s authority to determine public policy and to *899 make law and denigrates the private property rights of landowners. In addition, the Court demands more and more regulation, calling into question a number of existing and contemplated legislative policies and forcing the state down a dangerous road of increased regulation and administration and decreased privatization.
It is the Legislature’s responsibility to regulate water quality in Texas. As noted, the Legislature chose to allow cities to regulate water quality in their ETJs via section 26.177. But the Court concludes that this reduction in the City's regulatory authority is invalid, and in doing so the Court displaces the Legislature’s policy decision with its own regarding how water should be regulated in Texas.
The necessary import of the Court’s opinion is that by enacting section 26.177 and simply start over.
Besides improperly tying the Legislature’s hands, the Court also fails to acknowledge the potential consequences of its decision. The Legislature has demonstrated its desire to empower individuals through a variety of privatization initiatives such as school choice and school vouchers.2 Would the Court’s opinion mandate that such policy choices be stricken as unconstitutional delegations? The same question applies to the Legislature’s ability to establish private prisons.3 And what about existing legislative grants of eminent domain power to private entities?4 The Court cannot reconcile such policies with its decision. In addition to rendering the viability of these and other legislative policies questionable, the Court’s decision leads the state down a dangerous path that requires more and more regulation and less privatization. It is the Legislature’s policy choice—not the Court’s—that should determine the amount of regulation needed.
section 26.179 are insufficient. The Court says the numerous applicable regulations do not go far enough and that private citizens have too much latitude to make their own decisions—despite the fact that the regulations the Court deems to be inadequate are so comprehensive that the Court’s mere synopsis of them occupies nine paragraphs of its opinion.
Despite the numerous existing regulations, the Court wants more. The Court creates an impossible standard requiring the Legislature to regulate the minutia of land development. For example, although section 26.179(b)(2) appropriately requires modification of operational and maintenance practices in existing phases whenever water quality has not been maintained.
Rather than requiring the Legislature to spell out every detail, it is well recognized that delegations need only establish “reasonable standards” sufficient to guide the entity to which the powers are delegated, especially when conditions must be considered that cannot be conveniently investigated by the Legislature. See Railroad Comm’n v. Lone Star Gas Co., 844 S.W.2d 679, 689 (Tex.1992). As we have said, “[r]equiring the legislature to include every detail and anticipate unforeseen circumstances in the statutes which delegate authority ... would defeat the purpose of delegating legislative authority.” Id. The Court now abandons these standards.
Last, although the Court claims to apply the standard of review for a facial challenge to a statute’s constitutionality, 22 S.W.3d at 878, the Court fails to say what that standard is and fails to apply it. In a facial challenge such as this, it is the challenger’s burden to show that the statute always operates unconstitutionally. Garcia, 893 S.W.2d at 518.
Although required to construe statutes to be constitutional whenever possible, the Court doggedly construes the statute in a manner that renders it unconstitutional. For example, the Court concludes that more monitoring is necessary, but then goes out of its way to hold that the TNRCC cannot require monitoring in zones opting to retain rainfall. Instead of micro-managing the Legislature and forcing an increase in needless regulation in this area and possibly many others, the Court should conduct a proper facial-challenge review and, as it is bound to do, construe the statute in a constitutional manner.
The only silver lining in the Court’s opinion is its admittedly limited application. As the Court notes, 22 S.W.3d at 870 n. 1, the Legislature amended section 26.179 in 1999, but the amendments do not apply to this case. The Court appropriately has not said that the amended act is unconstitutional.
The Court erroneously concludes that section 26.179 does not delegate any other governmental authority to the landowners.
In order to determine whether id. § 26.0136.
One such delegation occurred in 1971, when the Legislature delegated certain water-quality management authority to municipalities via section 26.177, both in the city limits and in the ETJ. But this broad authority to regulate water quality in the ETJ is wholly derived from legislative grants of authority.
Similarly, a city’s authority to regulate land development in its ETJ is wholly derived from a legislative grant of authority. TEX. LOC. GOV’T CODE § 212.003. If no municipal ordinances are extended to the ETJ, only county land-use regulations apply.
Austin’s approach to protecting water quality under its Quick v. City of Austin, 7 S.W.3d 109, 121 (Tex.1998).
In enacting 3 (April 4, 1995) (statement of Sen. Wentworth). The Legislature found that such regulation stifled economic development, in contravention of its stated Water Code policy:
It is the policy of this state and the purpose of this subchapter to maintain the quality of water in the state consistent with the public health and enjoyment, the propagation and protection of terrestrial and aquatic life, the operation of existing industries, and the economic development of the state ... and to require the use of all reasonable methods to implement this policy.
TEX. TEX. WATER CODE § 26.179(d).
The City contends that section 26.179 improperly allows private entities to suspend the laws in violation of article I, section 28’s mandate that the power to suspend laws may be exercised only by the Legislature. See TEX. CONST. art. I, § 28 (“No power of suspending laws in this State shall be exercised except by the Legislature.”). These arguments are interrelated and should be considered together.
To determine whether a delegation of the power to suspend laws has occurred, courts focus on the statutory language. See id. § 26.179(a).
When designating a zone, the landowner must describe the zone by metes and bounds and include a general description of the proposed land uses within the zone (the land-use plan), a water-quality plan for the zone, and a general description of the water-quality facilities and infrastructure to be constructed for water-quality protection in the zone. See section 26.179’s state-regulated scheme applies and certain city regulations and powers are rendered inapplicable.
To begin with, the Legislature’s allowing landowners to choose between alternative, legislatively established regulatory schemes is not a delegation. See Thomas Cusack Co. v. City of Chicago, 242 U.S. 526, 531, 37 S.Ct. 190, 61 L.Ed. 472 (1917) (declaring that a city ordinance allowing landowners to lift a zoning prohibition by majority consent “is not a delegation of legislative power, but is ... a familiar provision affecting the enforcement of laws and ordinances”).
Moreover, when a landowner chooses the state scheme by designating a zone and formulating water-quality and land-use plans, any city regulations inconsistent with those plans are rendered inapplicable by the terms of Section 26.179(i) plainly states that:
[a] municipality may not enforce in a zone any of its ordinances, land use ordinances, rules, or requirements ... which are inconsistent with the land use plan *904 and the water quality plan or which in any way limit, modify, or impair the ability to implement and operate the water quality plan and the land use plan within the zone as filed; nor shall a municipality collect fees or assessments or exercise powers of eminent domain within a zone until the zone has been annexed for the municipality. A water quality protection zone may be annexed by a municipality only after the installation and completion of 90 percent of all facilities and infrastructure described in the water quality plan for the entire zone as being necessary to carry out such plan or the expiration of 20 years from the date of designation of the zone, whichever occurs first.
TEX. McDonald v. State, 615 S.W.2d 214, 219 (Tex.Crim.App.1981) (holding that the Legislature did not delegate the power to suspend laws to the Wildlife Commission when the Legislature, via statute, provided that certain laws regulating wildlife resources were suspended when the Commission issued a proclamation relating to those wildlife resources).
The Legislature determined which city regulations would be suspended, and did so in a manner narrowly tailored to § 26.179(i).
Although a landowner’s plan is developed in accordance with § 26.003. As both the Court and the City concede, this legislation serves this state interest throughout Texas by limiting cities’ regulatory powers throughout the State.
To support its argument that the landowner is entitled to suspend city laws, the City contends, and the Court agrees, that “a landowner is the sole arbiter of whether any City ordinance is ‘inconsistent with’ or *905 ‘may limit, modify or impair’ his water quality plan.” But these contentions are foreign to the actual language of the statute; article I, section 28 of the Texas Constitution because the statute does not delegate the power to suspend laws to the landowners.
The City also argues, and the Court agrees, that section 26.179 delegates “no legislative authority at all” to the TNRCC. Similarly, the Court adopts an unnecessarily narrow interpretation of the TNRCC’s regulatory and enforcement powers in the zones. And, it is only by reading the statute so narrowly that the Court can conclude that a delegation has occurred.
To repeat, a landowner of a tract with fewer than 1000 acres and more than 500 acres may not even designate the tract as a zone without prior TNRCC approval. See section 26.179 provides that certain water-quality standards must be met. These standards place substantial limitations on a landowner’s actions and are enforced by the TNRCC.
As noted, under id. § 26.179(g). The TNRCC has the power to disapprove any plan if implementation of the plan will not reasonably attain one of the two defined water-quality-protection standards.5 See id. Thus, the Legislature defined the water-quality-protection standards, and the TNRCC is the arbiter of whether a landowner has satisfied one of those standards.
If a landowner chooses to maintain background levels of water quality, id. § 26.179(b). Results of monitoring and a description of the best management practices being used in the zone must be summarized and submitted to the TNRCC each year during development, unless the TNRCC determines that monitoring is no longer required. See id. If performance monitoring and best management practices indicate that background levels were not maintained during the previous year, the landowner must (1) modify water-quality plans for future phases of development to the extent reasonably feasible and practical and (2) modify operational and maintenance practices in existing phases to the extent reasonably feasible and practical. See id. If a landowner chooses to retain the first 1.5 inches of rainfall, this water-quality monitoring is not required. See id.
Regardless of whether a landowner chooses to capture rainfall or to maintain background levels of water quality, id. § 26.179(i).
The TNRCC has authority to enforce these provisions under § 26.0136 (“The [TNRCC] is the agency with primary responsibility for implementation of water-quality management functions, including enforcement actions, within the state.”). In addition, other sections of the Water Code clearly establish that the TNRCC has “general jurisdiction over water and water rights” and the state’s water-quality program, and that the TNRCC has the power to perform any acts “necessary and convenient to the exercise of its jurisdiction and powers as provided by [the Water Code] and other laws.” Id. §§ 5.013(a), 5.102(a).
Thus, for landowners designating a zone, section 26.179’s standards and additional state and TNRCC rules and regulations is monitored and enforced by the TNRCC. See id. § 26.179(g), (m).
As noted previously, once a water-quality plan is in effect, if a landowner has opted to maintain background levels of water quality but fails, he must modify existing operational and maintenance practices, modify his plan for future phases, and obtain TNRCC approval of the modified plan. See id. § 26.179(b), (g). The TNRCC need not approve a modified plan unless it finds the new plan will reasonably attain the water-quality protection standards of section 26.179. See id. § 26.179(g).
The Court also points to the fact that, if a landowner opts to capture the first 1.5 inches of rainfall, no water-quality monitoring is required. Simply because monitoring is not required does not mean that legislative authority has been delegated. The Legislature defined capturing 1.5 inches of rainfall as a water-quality-protection standard. If a landowner submits a plan to capture the first 1.5 inches of rainfall, which is sworn by a registered engineer and approved by the TNRCC, the landowner has complied with the standard created by the Legislature. The landowner is required to continue to capture rainfall throughout the project’s development; the Legislature states that doing so will “achieve water-quality protection;” and the TNRCC can enforce this requirement. The simple lack of water-quality monitoring does not indicate that any legislative authority has been delegated to the landowners under this scheme.
The Court also incorrectly concludes that section 26.179(b)’s apparently broad prohibition. Similarly, if state laws or TNRCC rules in effect at the time of the zone’s designation require monitoring, such monitoring could be required and enforced by the TNRCC.
In sum, by enacting Whaley v. State, 168 Ala. 152, 52 So. 941, 941 (1909) (holding that a streetcar company’s right to make rules concerning transfers was not a delegation, because the right to make rules concerning transfers existed independently of the act, and the authority given was not the delegation of the authority to legislate). Otherwise, only complete governmental control and oversight would avoid an unconstitutional delegation. The Legislature should not be forced into the business of detailing the development plans for all parcels of land throughout the state; it is sufficient for the Legislature to establish a framework (through the TNRCC) to ensure that its standards are being satisfied.
This case differs significantly from Boll Weevil, in which we found that an unconstitutional delegation had occurred. See section 26.179 control only their own property, are subject to legislatively defined standards and meaningful regulation, and are ultimately accountable to the TNRCC and the courts. Under such circumstances, I cannot conclude that any legislative power has been delegated to the landowners.
id. at 471–72.
SPECIAL OR LOCAL LAW
The City also challenges Article III, section 56 of the Texas Constitution provides:
Local and special laws
The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law
Regulating the affairs of counties, cities, towns, wards or school districts;
Exempting property from taxation;
*909 And in all other cases where a general law can be made applicable, no local or special law shall be enacted....
TEX. CONST. art. III, § 56.
section 26.179’s classifications when it was passed by the Legislature, and that Austin is the only city that falls within these classifications today.
In Maple Run v. Monaghan, this Court recognized “the Legislature’s broad authority to make classifications for legislative purposes.” Miller v. El Paso County, 136 Tex. 370, 150 S.W.2d 1000, 1001 (1941)). To determine whether a law that is limited to a particular class or locality is general or is an unconstitutional local or special law:
“[T]he classification ... must be based on characteristics legitimately distinguishing [the] class from others with respect to the public purpose sought to be accomplished by the proposed legislation.” “The primary and ultimate test of whether a law is general or special is whether there is a reasonable basis for the classification made by the law, and whether the law operates equally on all within the class.”
Miller, 150 S.W.2d at 1002.
The City argues that section 26.179’s substantive provisions are not reasonably related to its alleged purpose.
In considering these arguments, it must be presumed that the Legislature has not acted arbitrarily or unreasonably. See Texas Nat’l Guard Armory Bd. v. McCraw, 132 Tex. 613, 126 S.W.2d 627, 634 (1939)). A mere difference of opinion on the matter is not a sufficient basis for striking down legislation as arbitrary and unreasonable, because “[t]he wisdom or expediency of the law is the Legislature’s prerogative, not ours.” Id.
The City first argues that Texas has consistently applied a rule that statutes defining a class of one are constitutional only if they advance a statewide interest. To support this contention, the City cites City of Irving v. Dallas/Fort Worth Int’l Airport Bd., 894 S.W.2d 456, 467 (Tex.App.—Fort Worth 1995, writ denied). But these cases fail to support its contention.
In Maple Run, this Court found no legitimate reason why the Legislature chose a classification confining the statute at issue to a single municipal utility district. See Id.
Nor does County of Cameron v. Wilson support the City’s proposed rule. The City asserts that the Court upheld the statute at issue in that case “because it concerned a matter of statewide importance.” That assertion does not necessarily support a rule that a statute is unconstitutional unless it concerns a matter of statewide importance. Furthermore, this Court stated in County of Cameron, 326 S.W.2d at 165.
Miller v. El Paso County also fails to support the rule that the City urges. The City contends that the Court in Miller struck down a statute because it limited its effect to one county. The case reveals that the Court struck down the statute not for that reason, but because “the attempted classification [was] unreasonable and [bore] no relation to the objects sought to be accomplished by the Act.” Miller, 150 S.W.2d at 1003. Again the ultimate and dispositive inquiry was whether the classification was reasonably related to a purpose advanced by the statute.
Similarly, the City’s reliance on City of Irving is misplaced. In that case, the court of appeals relied on the argument that a statute with an arbitrary classification can nonetheless be constitutional if it affects a matter of statewide importance. See City of Irving, 894 S.W.2d at 467. As stated above, that rationale does not necessarily support the rule that the City urges.
Most importantly, this Court rejected the City’s argument in Maple Run, explaining that the ultimate question is whether there is a reasonable basis for the Legislature’s classification and the significance of the statute’s subject matter is merely an important factor in determining reasonableness. See Maple Run, 931 S.W.2d at 947.
*911 Because there is no support for the City’s contention that Texas courts have applied—much less “consistently applied”—a rule that one-member classes are appropriate only if they advance a statewide interest, I would reject the City’s first argument and adhere to the rule recited in Maple Run that the ultimate inquiry is whether there is a reasonable basis for the classification; whether the statute advances a statewide interest is merely a factor in making that inquiry.
In Maple Run, this Court quoted the fifty-eight-year-old proposition that “where a law ... affects only the inhabitants of a particular locality, ‘the classification must be broad enough to include a substantial class and must be based on characteristics legitimately distinguishing such class from others with respect to the public purpose sought to be accomplished by the proposed legislation.’ ” section 26.179’s classification “is not ‘broad enough to include a substantial class,’ as required when a statute applies only to a ‘particular locality.’ ” That argument could be understood to presuppose that the Court’s language creates—apart from the usual requirement that a classification be reasonable—a discrete requirement that a statute be broad enough to include a substantial class.
That supposition would be misguided. In 1941, Miller first referred to a “substantial class.” See article III, section 56 requires that legislation affect a certain minimum number of persons or entities.
But the greater expanse of this Court’s local and special law jurisprudence reveals that an inquiry into the substantiality of a class cannot be divorced from the reasonableness of the lines drawn to form that class. Instead, the primary and ultimate inquiry is and has been the reasonableness of the lines a statute draws and whether the statute operates equally on all within the class. See, e.g., Rodriguez v. Gonzales, 148 Tex. 537, 227 S.W.2d 791, 793 (1950). Our cases demonstrate that a class is “substantial” not because it is big, but because it is delimited by reasonable distinctions that respond to real or substantial differences.
Before Miller, in Friedman v. American Surety Co., 137 Tex. 149, 151 S.W.2d 570, 577 (1941), in which we stated that “[c]lassifications must be based on a real and substantial difference, having relation to the subject of particular enactment. If there is a reasonable ground for the classification, and the law operates equally on all within the same class, it will be held valid.”8
*912 Miller itself makes clear that an inquiry into the substantiality of a class is ultimately part of an inquiry into the reasonableness of the classification. The portion of the opinion that first refers to a “substantial class” states that
legislation must be intended to apply uniformly to all who may come within the classification designated in the Act, and the classification must be broad enough to include a substantial class and must be based on characteristics legitimately distinguishing such class from others with respect to the public purpose sought to be accomplished by the proposed legislation. In other words, there must be a substantial reason for the classification.
Miller, 150 S.W.2d at 1001–02 (emphasis added).
And in Maple Run, the Court made this explicit by explaining that “the ultimate question under Maple Run, 931 S.W.2d at 947 (emphasis in original).
The City also argues that Section 26.179(c) provides the following classifications:
This section applies only to those areas within the extraterritorial jurisdiction, outside the corporate limits of a municipality with a population greater than 5,000, and in which the municipality either:
(1) has enacted or attempted to enforce three or more ordinances or amendments thereto attempting to regulate water quality or control or abate water pollution in the area within the five years preceding the effective date of this Act, whether or not such ordinances or amendments were legally effective upon the area; or
(2) enacts or attempts to enforce three or more ordinances or amendments thereto attempting to regulate water quality or control or abate water pollution in the area in any five-year period, whether or not such ordinances or amendments are legally effective upon the area.
TEX. section 26.179’s three-ordinance demarcation and its population-based classification.
The stated purpose of R.S. 1 (April 19, 1995). These are, of course, legitimate objectives for legislation.
The classification limiting section 26.179 was designed to combat.
The City argues that the classification is unreasonable because it is, in effect, overbroad: a city could fall within the classification for merely attempting to enforce three longstanding ordinances, for enacting ordinances not enforced against landowners, for enacting non-substantive water-quality ordinances, or for enacting ordinances that never become legally effective. I find some irony in the City’s argument that a statute can be unconstitutionally local or special because its classification is too broad or general. Moreover, the City’s interpretation of section 26.179 is not triggered simply by a City’s enforcing three long-standing ordinances because standards are not changed. It is not arbitrary or unreasonable for the Legislature to determine that applying three or more water-quality standards in a five-year period could cause uncertainty that hampers a landowner’s plans for development, whether or not the regulations are in the end applied to the landowner.
As noted, it is not necessary that the legislation advance a matter of statewide interest, but whether it does so is a significant factor in determining whether the Legislature’s classifications are reasonable. In addition, the substantiality of the class (i.e., the number of persons affected by the legislation) must be considered in evaluating the reasonableness of the classifications. Promoting development without unnecessary regulatory chaos is a matter of statewide interest. See, e.g., section 26.179’s classification reasonably advances the statute’s purpose. Thus, I would hold that section’s 26.179’s three-ordinance classification is reasonable.
*914 I would also hold that section 26.179 because it would disproportionately affect their power to regulate water quality immediately adjacent to their boundaries.
The City further argues that Daniel v. Family Sec. Life Ins. Co., 336 U.S. 220, 224, 69 S.Ct. 550, 93 L.Ed. 632 (1949).
As the City acknowledges, “[a]n improper legislative motive ... cannot taint an otherwise constitutional statute.” Cf. id. at 224, 69 S.Ct. 550 (“[A court] cannot undertake a search for motive in testing constitutionality.”). Moreover, even if some legislators intended the Act to apply to Austin’s ETJ, the fact remains that the Act potentially subjects all Texas towns with a population of five thousand or greater to its application.
Finally, the City argues that “[n]ot only is section 26.179.
In addition to its argument that section 26.179 is not a local or special law.
The City also argues that section 26.179 is an unconstitutional local or special law, I would reject it on the same grounds.
Finally, the City argues that section 26.179 retroactively impairs its vested rights because the City may no longer enforce water-quality and other ordinances or exercise its right of eminent domain within areas of its ETJ designated as zones.
First, the City makes no attempt to demonstrate how its authority to enforce water-quality, land-use, or other ordinances within its ETJ is a vested right. As noted, the City has such authority only because the Legislature chose to grant it in the first place. The City’s continued authority to regulate in the ETJ is at all times subject to the will of the Legislature. But even assuming that the City does in fact have a vested right affected by section 26.179 is not a special law, but is a valid exercise of the police power to safeguard the public safety and welfare.
* * * * *
In sum, because I disagree with the Court’s conclusion that section 26.179 does not violate the other constitutional provisions asserted by the City, I respectfully dissent.
The Legislature amended relevant parts of section 26.179.
I, like the Court, cite the 1995 version of the Water Code unless otherwise indicated. The 1999 amendments to the Water Code do not apply to this case.
See infra Appendix A.
See infra Appendix A.
See infra Appendix A. The trial court held that section 26.179 was unconstitutional.
The Texas Constitution provides:
1. Senate and House of Representatives
Sec. 1. The Legislative power of this State shall be vested in a Senate and House of Representatives, which together shall be styled “The Legislature of the State of Texas.”
TEX. CONST. Art. III, § 1.
All citations are to the Water Code unless otherwise noted. In addition, section 26.179 are to the pre-amendment version.
See HOUSE RESEARCH ORG., BILL ANALYSIS, Tex. S.B. 1, 74 th Leg., R.S. (1995); see also Colona, The Privatization of Public Schools—A Statutory and Constitutional Analysis in the Context of Wilkinsburg Education Association v. Wilkinsburg School District, 100 DICKINSON L.REV. 1027, 1048 (1996); Egle, Comment, The Constitutional Implications of School Choice, 1992 WIS. L.REV. 459, 505–07 (1992).
See Blakely & Bumphus, Private Correctional Management: A Comparison of Enabling Legislation, FED. PROBATION, June 1996, at 49; Dipiano, Private Prisons: Can They Work? Panopticon in the Twenty-first Century, 21 NEW ENG. J. ON CRIM. & CIV. CONFINEMENTT 171, 172, 196, 199 (1995).
See, e.g., TEX.REV.CIV. STAT. art. 6535 (electric railway companies).
In fact, the TNRCC denied approval of two water-quality plans filed by the landowners in this suit.
WATER CODE § 26.179(n).
State v. Town of Montclair, 67 N.J.L. 426, 51 A. 494, 497 (1902) is one of the few cases beyond Texas that refers to a “substantial class.”
In Friedman, the challenge was actually based on the Texas Constitution’s equal rights provision, article III, section 56 for the same reasons it did not violate the Equal Protection Clause).
For example, when a City enforces one ordinance for two years and then enacts a new ordinance, it has applied two different standards, one enforced and one enacted. If the City then enacts another ordinance two years later, it has applied three different standards within a five-year period, and section 26.179 is triggered.