Introduction

In our article entitled “The Nav District Power Grab – Part 1”, we detailed the events leading up to the dispute between the Nav District and City over the Concho Street Drainage Project, demonstrating that the Nav District claim that it was unaware of the project until November 2021 after the project started is demonstrably false.

Further, we connected the dots of the chronology of events and supporting documents to demonstrate our belief that more than a year ago the Nav District hatched a scheme designed to regulate and control storm water runoff from the County, City, and Town into the bays and harbors.

We pointed out that on January 6, 2021, the City made clear its position that the Nav District had no jurisdiction over the City’s drainage projects. Click here to view the letter.

We noted that the Nav District never replied to the City’s position regarding City drainage projects. We have since spoken with City officials, who have advised us that the Nav District never engaged in any discussions with the City about this issue.

Perhaps one of the reasons the Nav District didn’t sit down with the City is that it knew it was skating on thin ice with its jurisdictional authority claims.

In this piece, we unpack the Texas Water Code as best we can to show that the Nav District does not possess the legal authority it claims to have over City storm water runoff and drainage into the harbors and bays. We also question the legality of the Nav District operating the Rockport Beach and the Festival Grounds. Finally, we make a number of recommendations regarding the Nav District.

 

Limited Statutory Authority Of Navigation Districts

Initially, the ACND claims it “is merely seeking to discharge its statutory mission, which includes the protection and conservation of navigable waters”. Click here to view the ACND’s attorney letter to the City. This claim of authority doesn’t hold water (no pun intended).

Navigation districts were created for the development and improvement of navigation of the inland and coastal waters of the State of Texas under Article 16, Section 59 of the Texas Constitution.

Let’s go over the statutory purposes, duties, and powers of the ACND in Section 62.101 of the Water Code. Click here to view the relevant excerpts from the Water Code.

 

  1. the improvement, preservation, and conservation of inland and coastal waters for navigation,
  2. the control and distribution of storm water and flood waters of rivers and streams in aid of navigation, and
  3. any other purposes necessary or incidental to the navigation of inland and coastal water or in aid of these purposes, as stated in Article 16, Section 59, of the Texas Constitution.

 

Further, Section 61.102 of the Water Code provides that a navigation district is a governmental entity with the powers of government and with the authority to exercise the rights, privileges, and functions which are essential to the accomplishment of those purposes.

First, the reference to the “improvement, preservation and conservation of inland and coastal waters” is qualified by the requirement that these actions must be for navigation, in aid of navigation, or be necessary or incidental to navigation.

Second,  the “control and distribution of storm waters and flood waters” must be of, and come from, “rivers and streams” and again be “in aid of navigation”. The statutory language does not give a navigation district the unlimited authority to control all storm water runoff, whether or not related to navigation.

Third, the “any other purposes” phrase in the statute is qualified by the requirement that these purposes be “necessary or incidental to the navigation” of waters or “in aid of these purposes” (i.e., navigation of waters).

Fourth, there is no statement of a “mission” of the ACND or any other navigation district in the Water Code. The ACND, like all quasi-governmental special purpose districts and entities,  possesses no unilateral authority to define a “mission”, power, or authority for its existence or functions outside of the express language of the statute and the Constitutional provisions authorizing its existence.

This has been made clear by Texas case law. Click here to view to view the case law. Further, the Texas Attorney General has determined in the context of a special purpose navigation district, which has identical statutory purposes as the ACND, the powers are limited to those expressly delegated to it by statute or clearly implied from its express powers. Click here to view the AG Opinion.

Fifth, the language of Section 61.102 simply makes clear that a navigation district is a government entity, possesses government entity powers, and may do all things that are essential to acting as a government entity. Nothing in this section of the statute grants a navigation district powers and purposes above and beyond those provided for in Section 61.101 of the Water Code.

Simply stated, the statute does not give the ACND the authority to condition and control, or otherwise have permitting authority over, a  municipality from draining storm water runoff into navigable waters.

If this sort of power existed, it would give a navigation district the authority to control upland drainage for any number of purposes unrelated to navigation (e.g., water quality purposes, environmental purposes, etc.). But those sorts of purposes do not appear in the statute. Thus, a navigation district does not possess those powers and they are not established for those purposes.

And this makes abundant sense. There are other statutes that grant this sort of authority to other government entities (e.g., counties, municipalities, towns, and other state agencies).

The ACND’s reading of the statutory language is also inconsistent with the common definition of “navigation”. Merriam-Webster defines “navigation” as “1: the act or practice of navigating,

2 : the science of getting ships, aircraft, or spacecraft from place to place especially : the method of determining position, course, and distance traveled, and 3 : ship traffic or commerce”.

Black’s Law Dictionary defines “navigation” as: “The act or the science or the business of traversing the sea or other waters in ships or vessel”.

Imagine for a moment if a navigation district possessed the authority claimed by the ACND. Every city drainage project professionally and responsibly engineered and designed to drain storm water runoff into navigable waters would be subject to the whims of a navigation district, even though such drainage projects had no impact on the navigation of those waters.

If a navigation district disagreed with or disliked any element of a drainage project, it could exercise this non-statutory authority, impose permitting conditions (some of  which may be impractical or impossible to comply with financially or otherwise), and thus effectively stop them from proceeding.

Ultimately, this would expose the business and property owners who would otherwise benefit from the drainage projects to risks and dangers of devastating storm water flooding.

Thankfully, the language of the statues doesn’t give this authority to navigation districts.

Limited Regulatory Authority Of Navigation Districts

Let’s examine a new assertion of jurisdictional authority by the Nav District. A District  Commissioner recently published this statement:

“Under the Texas water [sic] Code, it is the District’s responsibility ‘to protect the property and to promote the health, safety, and general welfare of persons using the property’.”

After scouring the Water Code (again no pun intended), the best we can tell is that this Commissioner must be referring to Chapter 60, Navigation Districts, General Provisions. Click here to view excerpts from the statute.

Section 60.071 of this part of the Water Code gives certain enumerated “regulatory powers” to the commissioners of a navigation district to adopt ordinances, rules, or police regulations that are “necessary to protect the property and to promote the health, safety, and general welfare of persons using the property.” These are usually the sorts of matters that are the province of other government entities such as municipalities.

Section 60.0725 of the Water Code further allows the commissioners of a navigation district “to suppress and prevent nuisances, pollution, and improper disposal of materials on any district property” in order to protect district property or to “promote the health, safety, and general welfare of persons using other district property”. Once again, these are the sorts of matters that are usually the province of other government entities such as municipalities.

If the foregoing provisions were the end of this statutory grant of authority, the Nav District might argue, unbelievably and implausibly as it may sound, that it possesses the authority to declare that storm water runoff and drainage from the City constitutes a nuisance and/or pollutant and cannot be discharged into the bays and harbors.

There is a big problem with this argument. The Texas legislature put a significant qualification to the regulatory authority described above. This authority only exists if the district property is located outside of the boundaries of an incorporated city or town.

And here’s the rub…all of the property of the Nav District in question lies within the boundaries of the City of Rockport. Click here to view an official map of the City boundaries.

Simply stated, the Nav District does not possess any statutory authority to regulate storm water runoff from the City into the bays or harbors. If a navigation district’s property and waters, such as those of the Aransas County Navigation District, are within the boundaries of a city, the city has the exclusive authority to exercise the regulatory powers discussed above over the navigation district’s property and waters, including the authority to suppress and prevent nuisances, pollutants, and improper disposal of materials.

Any attempt by the Aransas County Navigation District to exercise authority or jurisdiction over the City’s storm water runoff would constitute an unprecedented power grab with no legal basis whatsoever.

The Nav District’s Tourism Industry Justification Doesn’t Create Authority And Is Not True

The same Commissioner who made these latest arguments about the District’s authority attempted to provide yet another justification for its drainage actions and demands when he made this statement:

“The Navigation District is the heartbeat of the tourism industry in Aransas County with the Beach, boat ramps, 3 marinas, 2 convention facilities, Fairgrounds, and all of the public restrooms.”

There are significant problems with this statement.

Indisputably, the Nav District does not exist to promote tourism or the tourism industry. It is not one of the enumerated purposes included in the Water Code and is not incidental to those purposes. The Nav District exists for navigation purposes only.

Whether or not the Nav District is the “heartbeat of the tourism industry”, it provides no justification for attempting to control storm water runoff and drainage into the harbors and bays.

The Nav District is guilty of hubris by even uttering that it is the heartbeat of tourism in Aransas County.

The Nav District is simply a custodian and landlord of navigable waters and certain lands that are included in its patent from the State of Texas.  As stated previously on this site, the true owners of the waters and lands are “we the people“.

The Nav District doesn’t operate any of the convention centers, museums, bait shops, community facilities, businesses, festivals, fishing tournaments, restaurants, etc. that attract tourists to Aransas County.

Further, the Nav District’s promotion of these activities is limited, at best.  Even then only in the context of the availability of these attractions and enterprises for lease on Nav District property on terms and conditions and at prices set by the Nav District.

All of the foregoing enterprises and activities are operated and promoted by the business and non-profit owners, lessees, and sponsors.

And we suspect that each and every one of these leases and agreements makes crystal clear that the ACND has no responsibility for operating or promoting any of the businesses, non-profits, and the like, and further require that all of these entities indemnify the ACND from any liabilities and have insurance policies protecting the ACND.

These businesses and a long list of non-profits are the true heartbeat of Aransas County tourism, along with all of the businesses, hotels, restaurants, and other natural attractions in Aransas County that do not lease any land from the Nav District and are completely unrelated in every respect to the Nav District.

 

The Nav District should be ashamed of claiming its importance to the tourism industry in Aransas County, particularly in view of the abusive lease and fee increases it has imposed over the past several years.

This begs the question of the Nav District’s motivation and objective. Perhaps its relentless quest to receive hotel and occupancy tax revenues (so called HOT funds) is the Nav District’s true motivation.  Click here to view a recent Letter to the Editor of the Rockport Pilot, which examines this point.

The Nav District May Not Have The Authority To Operate Rockport Beach And The Festival Grounds

 

We do not question whether the operation of the boat ramps, marinas, or the public restrooms to service the users of those facilities are authorized by the Water Code. They are clearly related to or incidental to navigation.

We have significant doubts whether the Nav District’s operation of the Rockport Beach and the Festival Grounds are authorized by the Water Code.

When reading the plain language of the Water Code, it is clear that all the powers and duties of, and the purposes for which a district may be formed, center around navigation of inland and coastal waters and do not list parks and recreation as a purpose and duty of a district.

Let’s examine this question of operating a beach, parks, and festival grounds.

Several years ago, then Attorney General Greg Abbott issued a legal opinion on whether the Nav District is authorized to develop and maintain parks and recreational facilities, more specifically Rockport Beach Park.

The AG concluded that the ACND is authorized to do so, but only to the extent necessary or incidental to the statutory purposes of the ACND, and also further qualifying the opinion that such a determination would require “the investigation and resolution of the particular facts concerning the park or recreation facility, which [was] beyond the opinion process.” Click here to read the AG opinion.

To our knowledge, this factual determination has never been made. Thus, it appears that there are still unresolved legal questions whether the ACND has the authority to maintain the Rockport Beach Park or any other parks, such as the Festival Grounds.

We wouldn’t be surprised if a group of citizens fed up with the Nav District’s behavior brought a lawsuit against the District for operating the Rockport Beach and Festival Grounds in violation of State law. Illegal, unauthorized activities should not be tolerated, regardless of how long those activities have taken place. And the mere passage of time does not make unlawful government activities lawful.

As many of you know, a group of Aransas County citizens banded together and filed suit against the City of Aransas Pass over its attempted illegal annexation of certain areas in Aransas County. The State of Texas also became involved in the lawsuit. Things were not going well for the City of Aransas Pass and it ultimately settled the lawsuits by backing down from the attempted annexation and paying $800,000 to settle the lawsuit.

We wouldn’t be surprised if the Nav District might suffer a similar fate.

Legitimate Nav District Interests

At most, it would be reasonable for the ACND to request the City to enter into an easement agreement addressing the City’s drainage construction work on the property known as Veteran’s Park (assuming the District legally owns this land, which Jerry Brundrett has seriously put in doubt), which is where the Concho Street Drainage project would connect to the existing underground box culvert that already leads from its outfall point in the Rockport Harbor bulkhead, under the road, and capped off in Veteran’s Park.

This easement agreement could spell out each parties responsibilities, duties, and obligations with respect to the construction work. It would be reasonable for the ACND and the City to agree to the following:

  • The City would be responsible for all construction expenses.
  • The City would be responsible for restoring property to the condition it was in prior to construction work.
  • The City would indemnify and hold harmless the ACND against liability solely in connection with the construction work.

Such an agreement could be put together by the ACND and City in a matter of days, and the Concho Street Drainage Project could proceed post haste as planned.

In the meantime, the County, City, Town, and ACND could continue to work together to develop solutions to improve water quality in Little Bay and then figure out how to pay for those solutions.

Concluding Recommendations

 

The citizens in our community should put an end to the Navigation District’s attempted power grab. Click here to contact your Aransas County Navigation District Commissioner and the Harbormaster and urge them to stand down on the Concho Street Drainage project.

 

We will always recommend that the local government entities work together cooperatively to resolve differences without resorting to legal confrontations. However, in a case like this where the Nav District has been an initial threatening aggressor who, in our view, lacks any legal authority, the City may have no other choice than to file a lawsuit against the Nav District.

 

We will urge the Aransas County Commissioners Court to become more aggressive in overseeing the activities of the Nav District as provided for in Chapter 62 of the Water Code, including:

 

  • Consider the power to remove a Nav District commissioner for malfeasance and nonfeasance.
  • Require each Nav District Commissioner to provide a true account of his or her activities whenever required by the Commissioners Court.
  • Require the Nav District to submit an annual report to the Commissioners Court on or before January 1 of each year of the Nav Districts official acts official activities, including all of the details provided for in the statute.
  • Require the Nav District Treasurer to render to the Commissioners Court a correct report of all matters relating to the financial condition of the District as often as required by the Commissioners Court.
  • Make sure that when the Commissioners Court sets the levy and assessment of taxes that the amount of the levy complies in all respects with the Water Code.

Click here to view excerpts from the Water Code giving the Commissioners Court these powers and authority.

Regardless of the outcome of the Concho Street drainage dispute, the ACVF believes it is time for a wholesale change in leadership of the Nav District Board. Three of the five commissioner positions are up for election later this year. The ACVF will do all in its power to support candidates for those positions who will pledge to manage the affairs of the Nav District consistent with its constitutional and statutory powers and purposes.

 

Aransas Community Values Fund