Can a Texas groundwater district define 'agricultural crop' narrowly to charge turf growers a higher water fee?

Plain-English summary

Groundwater conservation districts charge fees on the wells they permit, and the Legislature caps those fees by how the water is used. For the Mid-East Texas Groundwater Conservation District, the cap is 25 cents per acre-foot for water used "for irrigating agricultural crops" and 17 cents per thousand gallons (roughly $55.42 per acre-foot) for any other purpose. That gap matters a lot to a grower: getting your water classed as "irrigating agricultural crops" is far cheaper. The district's rules defined "agricultural crop" as "food or fiber commodities grown for resale of commercial purposes that provide food, clothing, or animal feed." A turf farm owner who held a district permit objected, arguing turf is an agricultural crop too and should get the lower rate. The chair of the Senate Agriculture Committee asked the AG whether the district could define the term that narrowly.

The AG started from a basic rule about these districts: a groundwater conservation district is a political subdivision whose powers are limited to what the Legislature clearly grants, and it can exercise no authority beyond that. Neither chapter 36 of the Water Code nor the district's enabling chapter defines "agricultural crop," so its ordinary meaning controls, and the AG found the ordinary sense of "agriculture" and "crop" broad enough to cover many products. The Water Code itself defines "agriculture" expansively, listing not only cultivating soil for food, feed, seed, and fiber, but also floriculture, viticulture, silviculture, horticulture, cover crops, wildlife management, and keeping equine animals, and it defines "agricultural use" to include irrigation. Because the Water Code governs these districts, its definitions inform what "agricultural crop" means in the fee statute.

A district can adopt rules interpreting the statutes it enforces, and courts give a reasonable agency interpretation serious consideration, but only when it does not conflict with the statute's language. Here, the AG found the district's definition tracked one piece of the Water Code's "agriculture" definition while silently dropping the rest, including at least two activities (floriculture/horticulture and cover crops) that involve producing plants as a crop. Excluding irrigation for those uses conflicts with section 36.001. The fee statute does not let a district pick whose agricultural uses receive the statutory irrigation rate by defining "agricultural crop" more narrowly than the Water Code allows. So the AG concluded a court would likely hold the district lacks authority to define "agricultural crop" in a way that excludes other products qualifying as agricultural crops under section 36.001.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Growers irrigating from district wells (including turf and nursery operations): At the time of the opinion, the AG read the fee statute and Water Code together to mean a district could not narrow "agricultural crop" so as to push their irrigation into the higher general rate when their product qualifies as an agricultural crop under section 36.001.

Groundwater conservation districts: The opinion told districts their rules interpreting "agricultural crop" could not conflict with the broad Water Code definition of agriculture, and that the fee statute did not authorize choosing which agricultural uses receive the lower irrigation rate.

The Legislature and those tracking the issue: The opinion noted that for three other districts the Legislature had expressly defined "agricultural crop" to include trees, shrubs, vines, grasses, and similar items, illustrating the term's potential scope even though those definitions did not control chapter 8866.

Common questions

Can a groundwater district charge turf growers the higher water rate by defining "agricultural crop" narrowly?
The AG concluded a court would likely say no, to the extent the narrow definition excludes products that qualify as agricultural crops under Water Code section 36.001.

Why does the district's definition conflict with the statute?
The AG explained the district's definition tracked only part of the Water Code's broad definition of "agriculture" and silently dropped other listed activities, such as floriculture, horticulture, and cover crops, that involve producing plants as a crop. Excluding irrigation for those uses conflicts with section 36.001.

Don't courts defer to an agency's reading of its own statute?
The AG noted courts give a reasonable agency interpretation serious consideration, but only when it does not conflict with the statute's language. A definition that contradicts the Water Code does not get that deference.

How big is the fee difference?
For this district, water for irrigating agricultural crops was capped at 25 cents per acre-foot, while water for any other purpose was 17 cents per thousand gallons, which the requester stated equals about $55.42 per acre-foot.

Background and statutory framework

Chapter 8866 of the Special District Local Laws Code establishes the Mid-East Texas Groundwater Conservation District (§§ 8866.001-.152). Section 8866.151 lets the district impose a reasonable well fee, based on column pipe size or the amount of water withdrawn, capped at 25 cents per acre-foot for irrigating agricultural crops and 17 cents per thousand gallons for any other purpose (§ 8866.151(a), (a)(1)-(2), (b)(1)-(2)). The district's enabling statute gives it the powers and duties provided by general law, including chapter 36 of the Water Code, applicable to districts created under article XVI, section 59 of the Texas Constitution (§ 8866.101; Tex. Const. art. XVI, § 59(b)).

A groundwater conservation district is a legislatively created political subdivision (Tex. Water Code § 36.001(15)) whose powers are limited to what the Legislature clearly grants (So. Plains Lamesa R.R., Ltd. v. High Plains Underground Water Conservation Dist., citing Tri-City Fresh Water Supply Dist. v. Mann). Because neither chapter 36 nor chapter 8866 defines "agricultural crop," the AG applied the ordinary meaning, noting courts give undefined terms their ordinary meaning and look to dictionaries and other statutes (Guitar Holding Co., L.P. v. Hudspeth Cty. Underground Water Conservation Dist.; Jaster v. Comet II Const., Inc.). The Water Code defines "agriculture" broadly (§ 36.001(19)(A)-(F)), defines "agricultural use" to include irrigation (§ 36.001(20)), and defines "nursery grower" (§ 36.001(22)). A district may adopt rules to carry out its powers (§ 36.101(a)), but statutory interpretation is a question of law reviewed de novo, and courts defer to an agency reading only where the statute is ambiguous and the construction is reasonable and not inconsistent with the statute (Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n; TGS-NOPEC Geophysical Co. v. Combs). The AG found the district's definition tracked subsection 19(A) but excluded other listed agricultural activities, conflicting with section 36.001, and noted the Legislature had expressly defined "agricultural crop" broadly for three other districts (Tex. Spec. Dist. Code §§ 8801.001(1)(B), (4-b); 8834.001(1)(B), (5-b); 8888.001(1)(B), (10)).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 59; § 59(b)
• Tex. Spec. Dist. Code § 8866.001-.152; § 8866.101; § 8866.151; § 8866.151(a); § 8866.151(a)(1)-(2); § 8866.151(b)(1); § 8866.151(b)(1)-(2); § 8801.001(1)(B), (4-b); § 8834.001(1)(B), (5-b); § 8888.001(1)(B), (10)
• Tex. Water Code § 36.001(15); § 36.001(19); § 36.001(19)(A)-(F); § 36.001(20); § 36.001(22); § 36.101(a)

Cases:

• So. Plains Lamesa R.R., Ltd. v. High Plains Underground Water Conservation Dist., 52 S.W.3d 770, 776 (Tex. App.-Amarillo 2001, no pet.)
• Tri-City Fresh Water Supply Dist. v. Mann, 142 S.W.2d 945, 948 (Tex. 1940)
• Guitar Holding Co., L.P. v. Hudspeth Cty. Underground Water Conservation Dist., 263 S.W.3d 910, 915 (Tex. 2008)
• Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 563 (Tex. 2014)
• Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n, 518 S.W.3d 318, 325 (Tex. 2017)
• TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0247
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp0247.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

April 10, 2019

The Honorable Bob Hall Opinion No. KP-0247
Chair, Committee on Agriculture
Texas State Senate Re: Whether a groundwater conservation
Post Office Box 12068 district may define "agricultural crop" as "food
Austin, Texas 78711-2068 or fiber commodities grown for resale of
commercial purposes that provide food,
clothing, or animal feed" and "utilize that
definition to determine the applicable fee rate for
'irrigating agricultural crops'" (RQ-0274-KP)

Dear Senator Hall:

    You ask about the authority of a groundwater conservation district to define the term

"agricultural crop" for the purpose of determining the applicable fee rate for "irrigating agricultural
crops." [1] See TEX. SPEC. DIST. CODE § 8866.151(b)(1). Chapter 8866 of the Special District Local
Laws Code establishes the Mid-East Texas Groundwater Conservation District ("Mid-East" or
"the District"). See id. §§ 8866.001-.152.

    Section 8866.151 authorizes Mid-East to adopt a rule to impose a reasonable fee on wells

for which it has issued a permit. Id. § 8866.151(a). The District may base the fee on column pipe
size or "the actual, authorized, or anticipated amount of water to be withdrawn from the well." Id.
§ 8866.151(a)(1)-(2). The Legislature capped the fees according to the water's use:

    Fees may not exceed:

                      (1) 25 cents per acre-foot for water used for irrigating
                      agricultural crops; or

                      (2) 17 cents per thousand gallons for water used for any other
                      purpose.

Id. § 8866.151(b)(1)-(2). You state that the 17 cents per thousand gallons roughly equates to
$55.42 per acre-foot. Request Letter at 2. In its rules, Mid-East defined the term "agricultural
crop" to mean "food or fiber commodities grown for resale of commercial purposes that provide
food, clothing, or animal feed," thereby excluding irrigation for any other purpose from the lower
rate for irrigating agricultural crops. [2] You inform us that the owner of a turf farm who obtained a
drilling and production permit from Mid-East objects to the District's definition of agricultural
crop, arguing that groundwater withdrawn to water turf may be assessed only at the rate applicable
to agricultural crops. Id. You ask therefore "[w]hether a groundwater conservation district has
the authority to define, by rule, an 'agricultural crop' as 'food or fiber commodities grown for
resale of commercial purposes that provide food, clothing, or animal feed' and utilize that
definition to determine the applicable fee rate for 'irrigating agricultural crops.'" Id. at 1.

    Mid-East's enabling statute gives it the "powers ... and duties provided by the general law

of this state, including Chapter 36, Water Code, applicable to groundwater conservation districts
created under Section 59, Article XVI, Texas Constitution." TEX. SPEC. DIST. CODE § 8866.101;
see TEX. CONST. art. XVI, § 59(b) (granting conservation and reclamation districts "the authority
to exercise such rights, privileges and functions ... as may be conferred by law"). A groundwater
conservation district is a legislatively created political subdivision. TEX. WATER CODE
§ 36.001(15). Its powers are "limited by the terms of applicable statutes authorizing its creation
and a district can exercise no authority that the Legislature has not clearly granted." So. Plains
Lamesa R.R., Ltd. v. High Plains Underground Water Conservation Dist., 52 S.W.3d 770, 776
(Tex. App.-Amarillo 2001, no pet.) (citing Tri-City Fresh Water Supply Dist. v. Mann, 142
S.W.2d 945, 948 (Tex. 1940)).

    Neither chapter 36 of the Water Code nor chapter 8866 of the Special Districts Code define

the term "agricultural crop." With regard to undefined statutory terms, the Texas Supreme Court
explained: "Terms that are not otherwise defined are typically given their ordinary meaning."
Guitar Holding Co., L.P. v. Hudspeth Cty. Underground Water Conservation Dist., 263 S.W.3d
910, 915 (Tex. 2008) (citations omitted) (construing undefined terms in chapter 36 of the Water
Code). To determine an undefined term's meaning, courts "look to a wide variety of sources,
including dictionary definitions [and] the use and definitions of the word in other statutes." Jaster
v. Comet II Const., Inc., 438 S.W.3d 556, 563 (Tex. 2014). "Agriculture" is a broad term, typically
defined as "the science or art of cultivating the soil, harvesting crops, and raising livestock," or
"the production of plants and animals useful to man and in varying degrees the preparation of these
products for man's use and their disposal (as by marketing)." WEBSTER'S THIRD NEW INT'L
DICTIONARY 44 (2002) (including "husbandry" and "farming" as synonyms). "Agricultural" is
the adjectival form of the word. Id. at 43. In this context, a "crop" may be defined as "a plant or
animal or plant or animal product that can be grown and harvested extensively for profit or
subsistence." Id. at 540. Thus, from the ordinary meaning of the words, an "agricultural crop"
may include a wide variety of products.

    Chapter 36 of the Water Code also defines "agriculture" broadly:

              "Agriculture" means any of the following activities:

                        (A) cultivating the soil to produce crops for human food,
                        animal feed, or planting seed or for the production of fibers;

                        (B) the practice of floriculture, viticulture, silviculture, and
                        horticulture, including the cultivation of plants in containers
                        or nonsoil media, by a nursery grower;

                        (C) raising, feeding, or keeping animals for breeding
                        purposes or for the production of food or fiber, leather, pelts,
                        or other tangible products having a commercial value;

                        (D) planting cover crops, including cover crops cultivated
                        for transplantation, or leaving land idle for the purpose of
                        participating in any governmental program or normal crop
                        or livestock rotation procedure;

                        (E) wildlife management; and

                        (F) raising or keeping equine animals.

TEX. WATER CODE § 36.001(19)(A)-(F). As used in subsection (B), a "nursery grower" engages
in "the actual cultivation or propagation of the product," which "typically includes activities
associated with the production or multiplying of stock such as the development of new plants from
cuttings, grafts, plugs, or seedlings." Id. § 36.001(22). "Agricultural use" is defined as "any use
or activity involving agriculture, including irrigation." Id. § 36.001(20). Because the Water Code
governs groundwater conservation districts, its definitions inform the meaning of "agricultural
crops" in section 8866.151 of the Special Districts Code. [3]

    Chapter 36 authorizes a groundwater district to make rules to carry out its powers and

duties. Id. § 36.101(a). A district could include in its rules its interpretation of terms in the statutes
it enforces. But interpretation of a statute is a question of law that courts review de novo. Cadena
Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n, 518 S.W.3d 318, 325 (Tex. 2017).
The courts generally give an agency's interpretation of statutes they enforce "serious
consideration" if "the construction is reasonable and does not conflict with the statute's language."
Id. at 325 (quotation marks omitted). Courts may defer to an agency's construction of a statute
only "[i]f there is vagueness, ambiguity, or room for policy determinations in a statute," and the
agency's interpretation is reasonable and not "plainly erroneous or inconsistent with the language
of the statute." TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011).

    The district's definition of agricultural crop as "food or fiber commodities grown for resale

of commercial purposes that provide food, clothing, or animal feed" closely comports with
subsection 19(A) of the Water Code's "definition of agriculture." Compare Mid-East Rule 2, with
TEX. WATER CODE § 36.001(19)(A). But by silence it excludes all other agricultural activities
listed in subsection 36.001(19). TEX. WATER CODE § 36.001(19)(B)-(F). While not all activities
listed in subsection 36.001(19) are relevant, at least two concern the production of plants as a crop.
Id. § 36.001(19)(B) (including "the practice of floriculture, viticulture, silviculture, and
horticulture"), (D) (including the activity of "planting cover crops, including cover crops cultivated
for transplantation"). Irrigation for these purposes constitutes an agricultural use. Id.
§ 36.001(20). A definition of agricultural crop that excludes irrigation for these agricultural uses
conflicts with section 36.001 of the Water Code.

    Subsection 8866.151(b)(1) of the Special Districts Code does not authorize a district to

choose whose agricultural uses will receive the statutory irrigation rate by defining "agricultural
crop" more narrowly than section 36.001 of the Water Code allows. Therefore, a court would
likely conclude that a groundwater conservation district does not have the authority to define
"agricultural crop" as "food or fiber commodities grown for resale of commercial purposes that
provide food, clothing, or animal feed" to the extent that it excludes other products that constitute
an agricultural crop under section 36.001 of the Water Code.

                                 SUMMARY

                  A court would likely conclude that a groundwater
          conservation district does not have the authority to define
          "agricultural crop" as "food or fiber commodities grown for resale
          of commercial purposes that provide food, clothing, or animal feed"
          to the extent that it excludes other products that constitute an
          agricultural crop under section 36.001 of the Water Code.

                                        Very truly yours,

                                        KEN PAXTON
                                        Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Bob Hall, Chair, Senate Comm. on Agric., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Feb. 14, 2019), https://www.texasattorneygeneral.gov/opinion/requests-for-opinions-rqs ("Request Letter").

[2] RULES OF THE MID-EAST TEX. GROUNDWATER CONSERVATION DIST., Rule 2 (Dec. 17, 2013) at 3, http://mideasttexasgcd.com/rules.htm ("Mid-East Rule 2").

[3] For three groundwater districts, the Legislature has defined "agricultural crop" to include "a tree, shrub, vine, cutting, graft, scion, grass, bulb, or bud that is grown or kept for, or capable of, propagation and distribution." TEX. SPEC. DIST. CODE § 8801.001(1)(B), (4-b); id. § 8834.001(1)(B), (5-b); id. § 8888.001(1)(B), (10). While these definitions appear in chapters concerning other districts and do not definitively establish the term's meaning in chapter 8866, nonetheless they illustrate the potential scope of the term.