CHAPTER 28. WATER WELLS AND DRILLED OR MINED SHAFTS
WATER CODE
TITLE 2. WATER ADMINISTRATION
SUBTITLE D. WATER QUALITY CONTROL
CHAPTER 28. WATER WELLS AND DRILLED OR MINED SHAFTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 28.001. DEFINITIONS. In this chapter:
(1) "Commission" means the Texas Natural Resource Conservation
Commission.
(2) "Executive Director" means the executive director of the
Texas Natural Resource Conservation Commission.
(3) "Shaft" means any vertically oriented excavation, whether
constructed by drilling or mining techniques, where the depth of
the excavation is greater than its diameter, the excavation
penetrates into or through the base of the uppermost
water-bearing strata, and the primary purpose of the excavation
is the transport of workers and materials to and from a
destination, at depth, for purposes of geological studies, access
to existing and planned subsurface mine workings, or for
ventilation of those workings.
(4) "Water" or "water in the state" means groundwater,
percolating or otherwise, lakes, bays, ponds, impounding
reservoirs, springs, rivers, streams, creeks, estuaries, marshes,
inlets, canals, the Gulf of Mexico inside the territorial limits
of the state, and all other bodies of natural and artificial
surface water that is inland or coastal, fresh or salt, and
navigable or nonnavigable, and includes the beds and banks of all
watercourses and bodies of surface water, that are wholly or
partially inside or bordering the state or inside the
jurisdiction of the state.
(5) "Surface facilities" means the on-site above-ground
appurtenances, structures, equipment, and other fixtures that are
or will be used for storage or processing or in conjunction with
the shaft operation.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1983, 68th Leg., p. 651, ch. 148, Sec. 1,
eff. May 18, 1983; Acts 1985, 69th Leg., ch. 795, Sec. 1.122,
eff. Sept. 1, 1985; Acts 1995, 74th Leg., ch. 76, Sec. 11.301,
eff. Sept. 1, 1995.
SUBCHAPTER B. WATER WELLS
Sec. 28.011. UNDERGROUND WATER: REGULATIONS. Except as
otherwise provided by this code, the commission may make and
enforce rules and regulations for protecting and preserving the
quality of underground water.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977. Renumbered from Sec. 28.002 by Acts 1983, 68th
Leg., p. 651, ch. 148, Sec. 1, eff. May 18, 1983. Amended by Acts
1985, 69th Leg., ch. 795, Sec. 1.123, eff. Sept. 1, 1985; Acts
1993, 73rd Leg., ch. 914, Sec. 1, eff. Aug. 30, 1993.
Sec. 28.012. CERTAIN WELLS TO BE PLUGGED OR CASED. The owner of
a water well which encounters salt water or water containing
mineral or other substances injurious to vegetation or
agriculture shall securely plug or case the well in a manner that
will effectively prevent the water from escaping from the stratum
in which it is found into another water-bearing stratum or onto
the surface of the ground.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977. Renumbered from Sec. 28.003 by Acts 1983, 68th
Leg., p. 651, ch. 148, Sec. 1, eff. May 18, 1983.
SUBCHAPTER C. DRILLED OR MINED SHAFTS
Sec. 28.021. PERMIT FROM COMMISSION. No person desiring to
drill, excavate, or otherwise construct a shaft as defined in
this chapter may commence construction without first obtaining a
permit for such work from the commission.
Added by Acts 1983, 68th Leg., p. 651, ch. 148, Sec. 1, eff. May
18, 1983.
Sec. 28.022. APPLICATION FOR PERMIT. The commission shall
prescribe forms for application for a permit and shall make the
forms available on request without charge.
Added by Acts 1983, 68th Leg., p. 651, ch. 148, Sec. 1, eff. May
18, 1983. Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.123,
eff. Sept. 1, 1985.
Sec. 28.023. INFORMATION REQUIRED OF APPLICANT. An applicant
shall furnish any information the commission considers necessary
to discharge its duties under this chapter and the rules of the
commission.
Added by Acts 1983, 68th Leg., p. 651, ch. 148, Sec. 1, eff. May
18, 1983. Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.123,
eff. Sept. 1, 1985.
Sec. 28.024. APPLICATION FEE. With each application for a shaft
permit, the commission shall collect a fee as set by the
executive director to reasonably offset the costs to the
commission for processing the application. The fee may not be
less than $10,000.
Added by Acts 1983, 68th Leg., p. 651, ch. 148, Sec. 1, eff. May
18, 1983. Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.123,
eff. Sept. 1, 1985.
Sec. 28.025. LETTER FROM RAILROAD COMMISSION. A person making
application to the commission for a shaft permit shall submit
with the application a letter from the railroad commission
stating that such shaft construction will not endanger or injure
any oil or gas formation or significantly limit the potential for
future recovery of or exploration for oil or gas.
Added by Acts 1983, 68th Leg., p. 651, ch. 148, Sec. 1, eff. May
18, 1983. Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.123,
eff. Sept. 1, 1985.
Sec. 28.026. INSPECTION OF SHAFT LOCATION. On receiving an
application for a permit, the executive director shall have an
inspection made of the location of the proposed shaft to
determine the local conditions and probable effect of the shaft
on water in the state and shall determine the requirements for
setting of casing, liners, and seals as provided in Sections
28.030, 28.036, and 28.037 of this chapter.
Added by Acts 1983, 68th Leg., p. 651, ch. 148, Sec. 1, eff. May
18, 1983.
Sec. 28.027. RECOMMENDATIONS FROM OTHER AGENCIES. The executive
director shall submit to such state agencies and other persons
that the commission may designate copies of every application
received in proper form. These agencies, persons, and divisions
may make recommendations to the commission concerning any aspect
of the application and shall have reasonable time to do so as the
commission may prescribe.
Added by Acts 1983, 68th Leg., p. 651, ch. 148, Sec. 1, eff. May
18, 1983. Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.123,
eff. Sept. 1, 1985.
Sec. 28.028. HEARING ON PERMIT APPLICATION. (a) The commission
shall hold an adjudicatory hearing on the application.
(b) The commission by rule shall provide for giving notice of a
public hearing on a permit application. The rules for notice
shall include provisions for giving notice to local governments
and interested persons.
(c) The hearing required in Subsection (a) of this section shall
be conducted in accordance with rules for contested cases under
Chapter 2001, Government Code. Any person, corporation,
partnership, association, local government, government agency, or
other entity shall be allowed to participate in a hearing as a
party under this section upon a showing of sufficient interest or
of an ability to contribute to the resolution of relevant issues.
Added by Acts 1983, 68th Leg., p. 651, ch. 148, Sec. 1, eff. May
18, 1983. Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.124,
eff. Sept. 1, 1985; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(63),
eff. Sept. 1, 1995.
Sec. 28.029. DELEGATION OF HEARING POWERS. (a) The commission
may authorize the chief administrative law judge of the State
Office of Administrative Hearings to call and hold hearings on
any subject on which the commission may hold a hearing.
(b) The commission may also authorize the chief administrative
law judge to delegate to one or more administrative law judges
the authority to hold any hearing the chief administrative law
judge calls.
(c) At any hearing called under this section, the chief
administrative law judge or the administrative law judge to whom
a hearing is delegated may administer oaths and receive evidence.
(d) The individual or individuals holding a hearing under the
authority of this section shall report the hearing in the manner
prescribed by the commission.
Added by Acts 1983, 68th Leg., p. 651, ch. 148, Sec. 1, eff. May
18, 1983. Amended by Acts 1995, 74th Leg., ch. 106, Sec. 4, eff.
Sept. 1, 1995.
Sec. 28.030. RULES, ETC. (a) The commission shall adopt rules
reasonably required for the performance of the powers, duties,
and functions of the commission under this chapter.
(b) Such rules shall be published as proposed rules, as
prescribed by Chapter 2001, Government Code, no later than 120
days after the enactment of this section and shall provide
reasonable time for the commission to receive comments and
recommendations from interested agencies and the public before
adoption by the commission.
(c) No shaft permit shall be issued by the commission pursuant
to this chapter nor shall a permit hearing be held on a shaft
application until the commission has adopted rules for the
issuance of such shaft permit.
(d) The commission may refuse to accept a shaft permit
application or hold a shaft permit application hearing if the
planned siting of the shaft is the subject of litigation.
Added by Acts 1983, 68th Leg., p. 651, ch. 148, Sec. 1, eff. May
18, 1983. Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.125,
eff. Sept. 1, 1985; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(63),
eff. Sept. 1, 1995.
Sec. 28.031. ISSUANCE OF PERMIT. (a) The commission may grant
an application in whole or part and may issue the shaft permit if
it finds:
(1) that the use or installation of the shaft is in the public
interest and that after consideration of all siting alternatives
there is a public need for construction of the shaft at the
location for which the application is made;
(2) that no existing rights, including but not limited to
mineral rights and water rights, will be impaired;
(3) that, with proper safeguards, both ground and surface water
can be adequately protected from pollution; and
(4) that the applicant has made a satisfactory showing of
financial responsibility if required by Subsection (b) of Section
28.053 of this chapter.
(b) In the permit the commission shall impose terms and
conditions reasonably necessary to protect all water from
pollution, including the necessary casing, liners, seals and
surface facilities.
(c) In the permit the commission shall impose terms and
conditions for final closure of surface facilities and plugging
and sealing of the shaft reasonably necessary to protect all
water penetrated from pollution.
Added by Acts 1983, 68th Leg., p. 651, ch. 148, Sec. 1, eff. May
18, 1983.
Sec. 28.032. COPIES OF PERMIT; FILING REQUIREMENTS. (a) The
commission shall furnish the railroad commission with a copy of
each shaft permit the commission issues.
(b) Before beginning shaft construction, a person receiving a
shaft permit shall file a copy of the permit with the
commissioners court of the county in which the shaft is to be
located.
Added by Acts 1983, 68th Leg., p. 651, ch. 148, Sec. 1, eff. May
18, 1983. Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.126,
eff. Sept. 1, 1985.
Sec. 28.033. RECORD OF STRATA. (a) The commission shall
require a person applying for a shaft permit to drill or have
drilled a test hole on center or offset to the shaft and provide
the following to the commission and the railroad commission in
the application:
(1) a description of the lithology into or through the lower
confining strata;
(2) results of rock testing;
(3) geophysical logs; and
(4) other information that may be required by the commission.
(b) The commission shall require a person receiving a shaft
permit to keep and furnish to the commission and the railroad
commission a complete and accurate record of the depth,
thickness, and character of the different strata or rock units
penetrated in constructing the shaft.
Added by Acts 1983, 68th Leg., p. 651, ch. 148, Sec. 1, eff. May
18, 1983. Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.127,
eff. Sept. 1, 1985.
Sec. 28.034. GEOPHYSICAL AND DRILLING LOG. If the shaft is to
be constructed over, around, or within 2,000 feet of an existing
drilled borehole or boreholes, the commission shall require the
applicant for a shaft permit to furnish such geophysical logs as
may be required by the commission, including electric logs, and
the drilling log and well completion record of all existing
boreholes to the commission, along with a complete and accurate
core data record of the depth, thickness, and character of the
different strata or rock units penetrated as a part of the shaft
application.
Added by Acts 1983, 68th Leg., p. 651, ch. 148, Sec. 1, eff. May
18, 1983. Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.127,
eff. Sept. 1, 1985.
Sec. 28.035. SEISMIC REFLECTION SURVEY. The commission shall
require as a part of any shaft application a seismic reflection
survey and velocity control data conforming, at minimum, to
specifications established by the commission in the rules
provided for in Subsection (a) of Section 28.030 of this chapter.
Added by Acts 1983, 68th Leg., p. 651, ch. 148, Sec. 1, eff. May
18, 1983. Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.127,
eff. Sept. 1, 1985.
Sec. 28.036. CASING, LINER, AND SEAL REQUIREMENTS. (a) The
casing, liners, and seal(s) shall be set at the depth, with the
materials, and in the manner required by the commission.
(b) The permittee shall provide records as required by the
executive director to indicate compliance with Subsection (a) of
this section.
Added by Acts 1983, 68th Leg., p. 651, ch. 148, Sec. 1, eff. May
18, 1983.
Sec. 28.037. FACTORS IN SETTING CASING, LINER, AND SEAL
REQUIREMENTS. Before setting the casing, liner, and seal
requirements, the commission shall consider:
(1) known geological and hydrological conditions and
relationships;
(2) foreseeable future economic development in the area; and
(3) foreseeable future demand for the use of fresh water in the
locality.
Added by Acts 1983, 68th Leg., p. 651, ch. 148, Sec. 1, eff. May
18, 1983.
Sec. 28.038. ENVIRONMENTAL REPORT. If an environmental report,
environmental assessment, or environmental impact statement of
any kind that includes an analysis of the environmental impacts
of the shaft construction or operation is required by any federal
or state agency before approval to construct the shaft, the
environmental document, along with evidence of the needed
approvals that have been granted, must be submitted to the
commission as part of the shaft permit application, and the
commission shall make the environmental document available for
public review and comment for a period of not less than 30 days
before the application for the shaft permit is considered.
Added by Acts 1983, 68th Leg., p. 651, ch. 148, Sec. 1, eff. May
18, 1983. Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.127,
eff. Sept. 1, 1985.
SUBCHAPTER D. COMMISSION AUTHORITY
Sec. 28.051. POWER TO ENTER PROPERTY. Members of the
commission, employees and agents of the commission, and
authorized agents or employees of local governments may enter
public or private property at any time to inspect and investigate
conditions relating to shaft activities or to monitor compliance
with a rule, permit, or other order of the commission. Members,
employees, or agents acting under the authority of this section
who enter an establishment on public or private property shall
observe the establishment's safety, internal security, and fire
protection rules.
Added by Acts 1983, 68th Leg., p. 651, ch. 148, Sec. 1, eff. May
18, 1983. Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.127,
eff. Sept. 1, 1985.
Sec. 28.052. POWER TO EXAMINE RECORDS. Members of the
commission, employees and agents of the commission, and
authorized agents or employees of local governments may examine
and copy those records or memoranda of a shaft permittee or his
contractors they are investigating or monitoring as provided by
Section 28.051 of this chapter that relate to the construction
and operation of a shaft or any other records required to be
maintained by law.
Added by Acts 1983, 68th Leg., p. 651, ch. 148, Sec. 1, eff. May
18, 1983. Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.127,
eff. Sept. 1, 1985.
Sec. 28.053. FINANCIAL RESPONSIBILITY. (a) The commission may
require in a shaft permit that the permittee reimburse the
commission for reasonable costs of monitoring and on-site,
full-time surveillance to determine compliance with a rule,
permit, or other order of the commission.
(b) A person to whom a shaft permit is issued may be required by
the commission to maintain a performance bond or other form of
financial security to ensure payment of costs that may become due
in accord with Subsection (a) of this section or to ensure that
an abandoned shaft is safely and properly sealed and plugged.
Added by Acts 1983, 68th Leg., p. 651, ch. 148, Sec. 1, eff. May
18, 1983. Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.128,
eff. Sept. 1, 1985.