WATER CODE
CHAPTER 28. WATER WELLS AND DRILLED OR MINED SHAFTS
SUBCHAPTER A. GENERAL PROVISIONS
§ 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, § 1, eff.
Sept. 1, 1977; Acts 1983, 68th Leg., p. 651, ch. 148, § 1, eff.
May 18, 1983; Acts 1985, 69th Leg., ch. 795, § 1.122, eff. Sept.
1, 1985; Acts 1995, 74th Leg., ch. 76, § 11.301, eff. Sept. 1,
1995.
SUBCHAPTER B. WATER WELLS
§ 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, § 1, eff.
Sept. 1, 1977. Renumbered from § 28.002 by Acts 1983, 68th Leg.,
p. 651, ch. 148, § 1, eff. May 18, 1983. Amended by Acts 1985,
69th Leg., ch. 795, § 1.123, eff. Sept. 1, 1985; Acts 1993, 73rd
Leg., ch. 914, § 1, eff. Aug. 30, 1993.
§ 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, § 1, eff.
Sept. 1, 1977. Renumbered from § 28.003 by Acts 1983, 68th Leg.,
p. 651, ch. 148, § 1, eff. May 18, 1983.
SUBCHAPTER C. DRILLED OR MINED SHAFTS
§ 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, § 1, eff. May 18,
1983.
§ 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, § 1, eff. May 18,
1983. Amended by Acts 1985, 69th Leg., ch. 795, § 1.123, eff.
Sept. 1, 1985.
§ 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, § 1, eff. May 18,
1983. Amended by Acts 1985, 69th Leg., ch. 795, § 1.123, eff.
Sept. 1, 1985.
§ 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, § 1, eff. May 18,
1983. Amended by Acts 1985, 69th Leg., ch. 795, § 1.123, eff.
Sept. 1, 1985.
§ 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, § 1, eff. May 18,
1983. Amended by Acts 1985, 69th Leg., ch. 795, § 1.123, eff.
Sept. 1, 1985.
§ 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, § 1, eff. May 18,
1983.
§ 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, § 1, eff. May 18,
1983. Amended by Acts 1985, 69th Leg., ch. 795, § 1.123, eff.
Sept. 1, 1985.
§ 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, § 1, eff. May 18,
1983. Amended by Acts 1985, 69th Leg., ch. 795, § 1.124, eff.
Sept. 1, 1985; Acts 1995, 74th Leg., ch. 76, § 5.95(63), eff.
Sept. 1, 1995.
§ 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, § 1, eff. May 18,
1983. Amended by Acts 1995, 74th Leg., ch. 106, § 4, eff. Sept.
1, 1995.
§ 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, § 1, eff. May 18,
1983. Amended by Acts 1985, 69th Leg., ch. 795, § 1.125, eff.
Sept. 1, 1985; Acts 1995, 74th Leg., ch. 76, § 5.95(63), eff.
Sept. 1, 1995.
§ 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, § 1, eff. May 18,
1983.
§ 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, § 1, eff. May 18,
1983. Amended by Acts 1985, 69th Leg., ch. 795, § 1.126, eff.
Sept. 1, 1985.
§ 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, § 1, eff. May 18,
1983. Amended by Acts 1985, 69th Leg., ch. 795, § 1.127, eff.
Sept. 1, 1985.
§ 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, § 1, eff. May 18,
1983. Amended by Acts 1985, 69th Leg., ch. 795, § 1.127, eff.
Sept. 1, 1985.
§ 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, § 1, eff. May 18,
1983. Amended by Acts 1985, 69th Leg., ch. 795, § 1.127, eff.
Sept. 1, 1985.
§ 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, § 1, eff. May 18,
1983.
§ 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, § 1, eff. May 18,
1983.
§ 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, § 1, eff. May 18,
1983. Amended by Acts 1985, 69th Leg., ch. 795, § 1.127, eff.
Sept. 1, 1985.
SUBCHAPTER D. COMMISSION AUTHORITY
§ 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, § 1, eff. May 18,
1983. Amended by Acts 1985, 69th Leg., ch. 795, § 1.127, eff.
Sept. 1, 1985.
§ 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, § 1, eff. May 18,
1983. Amended by Acts 1985, 69th Leg., ch. 795, § 1.127, eff.
Sept. 1, 1985.
§ 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, § 1, eff. May 18,
1983. Amended by Acts 1985, 69th Leg., ch. 795, § 1.128, eff.
Sept. 1, 1985.
