CHAPTER 31. SUBSURFACE EXCAVATIONS
WATER CODE
TITLE 2. WATER ADMINISTRATION
SUBTITLE D. WATER QUALITY CONTROL
CHAPTER 31. SUBSURFACE EXCAVATIONS
Sec. 31.001. 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) "Ground movement" means any horizontal or vertical
displacement of the strata, including the earth surface,
resulting from or related to activities of subsurface
construction, operation, or use including subsidence, uplift,
shear along shaft walls, or other disturbance of the natural
strata or land surface.
(4) "Industrial waste" means waterborne liquid, gaseous, or
solid substances that result from any process of industry,
manufacturing, trade, or business, including runoff water from
mined materials and associated solids storage or disposal areas.
(5) "Permit" means a subsurface excavation permit issued by the
commission.
(6) "Person" means an individual, corporation, organization,
government or governmental subdivision or agency, business trust,
partnership, association, or any other legal entity.
(7) "Pollution" means alteration of the physical, thermal,
chemical, or biological quality of or the contamination of water
in the state that:
(A) makes the water harmful, detrimental, or injurious to
humans, animal life, vegetation, or property or to public health,
safety, or welfare; or
(B) impairs the usefulness or the public enjoyment of the water
for a lawful or reasonable purpose.
(8) "Spoils" means material removed from subsurface excavations
and brought to the land surface for storage or disposal.
(9) "Subsurface excavation" means shafts and underground
workings but does not include excavations associated with the
exploration, development, and production of oil, gas, or
geothermal sources and does not include excavations designed to
serve as permanent tunnels.
(10) "Underground workings" means an excavation below the land
surface connected to and associated with shafts, including adits,
raises or inclines, tunnels, rooms, drifts, shaft stations, and
chambers, that:
(A) penetrate into, through, or below the uppermost
water-bearing strata; and
(B) are used for access, transportation of persons and
materials, ventilation, storage, or removal of materials.
(11) "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 are 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.
(12) "Water inflow" means water movement into subsurface
excavations from surface or subsurface sources, including:
(A) inrushes from underground isolated water pockets and from
fault conduits; and
(B) flow from:
(i) primary and natural or induced secondary permeability;
(ii) manmade conduits such as shafts, adjacent underground
workings, subsidence fractures, and open, plugged, or abandoned
boreholes; and
(iii) surface flooding.
Added by Acts 1989, 71st Leg., ch. 2, Sec. 15.02(a), eff. Aug.
28, 1989. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 11.303,
eff. Sept. 1, 1995.
Sec. 31.002. APPLICABILITY. This chapter does not apply to:
(1) subsurface excavations conducted under Chapters 52 and 53 of
the Natural Resources Code if the commissioner of the General
Land Office determines that the subsurface excavation does not
adversely affect water as defined by this chapter; or
(2) facilities or activities covered by Chapter 26 or 27 of this
code or Chapter 361, Health and Safety Code.
Added by Acts 1989, 71st Leg., ch. 2, Sec. 15.02(a), eff. Aug.
28, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 284(75),
eff. Sept. 1, 1991.
Sec. 31.003. PERMIT FROM COMMISSION. A person desiring to
drill, excavate, or otherwise construct a subsurface excavation
may not begin construction without first obtaining a permit for
the work from the commission.
Added by Acts 1989, 71st Leg., ch. 2, Sec. 15.02(a), eff. Aug.
28, 1989.
Sec. 31.004. APPLICATION FOR PERMIT. The commission shall
prescribe forms for a permit application and shall make the forms
available on request without charge.
Added by Acts 1989, 71st Leg., ch. 2, Sec. 15.02(a), eff. Aug.
28, 1989.
Sec. 31.005. 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 1989, 71st Leg., ch. 2, Sec. 15.02(a), eff. Aug.
28, 1989.
Sec. 31.006. CONTENTS OF PERMIT APPLICATION. (a) The executive
director shall set the requirements for the permit application
after determining the local conditions and potential or probable
effect of the subsurface excavations on water in the state.
(b) The permit application must include plans for:
(1) setting of any casing, liners, and seals for the shaft and
underground workings;
(2) ground movement control, including subsidence, strata and
roof control, and shaft pillar dimensions;
(3) water inflow management;
(4) spoils and industrial waste management, including plans for
the management of the surface storage of spoils or industrial
waste in a manner that will not harm adjacent surface property if
the adjacent property is used for agricultural purposes;
(5) mitigation and monitoring of water pollution; and
(6) restoration, closure, and decommissioning of the subsurface
excavations.
(c) The permit application may include additional requirements
as determined by the executive director.
Added by Acts 1989, 71st Leg., ch. 2, Sec. 15.02(a), eff. Aug.
28, 1989.
Sec. 31.007. APPLICATION FEE. With each application for a
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 $1,000.
Added by Acts 1989, 71st Leg., ch. 2, Sec. 15.02(a), eff. Aug.
28, 1989.
Sec. 31.008. HEARING ON PERMIT APPLICATION. (a) The commission
may 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 must
include provisions for giving notice to local governments and
interested persons.
(c) A hearing held under Subsection (a) of this section shall be
conducted in accordance with rules for contested cases under
Chapter 2001, Government Code. A person shall be allowed to
participate in a hearing as a party under this section on a
showing of sufficient interest or of an ability to contribute to
the resolution of relevant issues.
Added by Acts 1989, 71st Leg., ch. 2, Sec. 15.02(a), eff. Aug.
28, 1989. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49),
eff. Sept. 1, 1995.
Sec. 31.009. 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 a hearing the chief administrative law
judge calls.
(c) At a 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 1989, 71st Leg., ch. 2, Sec. 15.02(a), eff. Aug.
28, 1989. Amended by Acts 1995, 74th Leg., ch. 106, Sec. 5, eff.
Sept. 1, 1995.
Sec. 31.010. RULES. (a) The commission shall adopt rules
reasonably required for the performance of the powers, duties,
and functions of the commission under this chapter.
(b) Rules adopted under this section shall be published as
proposed rules, as prescribed by Chapter 2001, Government Code.
(c) A permit may not be issued by the commission under this
chapter and a permit hearing may not be held on a permit
application until the commission has adopted rules for the
issuance of permits.
Added by Acts 1989, 71st Leg., ch. 2, Sec. 15.02(a), eff. Aug.
28, 1989. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49),
eff. Sept. 1, 1995.
Sec. 31.011. PENDING LITIGATION. The commission may refuse to
accept a permit application or hold a permit application hearing
if any aspect of the siting, construction, use, or
decommissioning of the subsurface excavation is the subject of
litigation.
Added by Acts 1989, 71st Leg., ch. 2, Sec. 15.02(a), eff. Aug.
28, 1989.
Sec. 31.012. ISSUANCE OF PERMIT. (a) The commission may grant
an application in whole or part and may issue the permit if it
finds that:
(1) the construction or use of the subsurface excavation is in
the public interest and that after consideration of all
alternative sites there is a public need for construction of the
subsurface excavation at the location for which the application
is made;
(2) existing rights, including mineral rights, water rights, and
adjacent surface rights, are not impaired;
(3) any surface storage of spoils or industrial waste will not
harm adjacent surface property used for agricultural purposes;
(4) with proper safeguards, both groundwater and surface water
can be adequately protected from pollution; and
(5) the applicant has made a satisfactory showing of financial
responsibility if required by Section 31.018(b) of this code.
(b) In the permit the commission shall impose terms and
conditions reasonably necessary to protect all water from
pollution.
(c) In the permit the commission shall impose terms and
conditions for final closure of surface facilities, plugging and
sealing of the subsurface excavations, management of spoils and
industrial waste, and ground movement control measures reasonably
necessary to protect all water penetrated from pollution.
(d) The use of a subsurface excavation for a purpose other than
one stated in the permit is prohibited.
Added by Acts 1989, 71st Leg., ch. 2, Sec. 15.02(a), eff. Aug.
28, 1989.
Sec. 31.013. PERFORMANCE STANDARDS. (a) The commission shall
adopt rules and performance standards to govern the granting of
permits under this chapter and may impose additional requirements
it considers necessary.
(b) A permit issued under this chapter must require that the
subsurface construction and operations meet all applicable
performance standards of this chapter and performance standards
adopted by the commission relating to:
(1) construction, operation, closure, and decommissioning;
(2) casings, liners, and seals for subsurface excavations;
(3) water inflow management and disposal;
(4) ground movement control;
(5) roof control and shaft pillar dimensions; and
(6) spoils and industrial waste management and disposal.
(c) The permittee shall provide records as required by the
executive director to indicate compliance with Subsections (a)
and (b) of this section.
Added by Acts 1989, 71st Leg., ch. 2, Sec. 15.02(a), eff. Aug.
28, 1989.
Sec. 31.014. ADDITIONAL PERMIT CONSIDERATIONS. When determining
the terms and conditions of the permit, the commission shall
consider:
(1) known and expected geological and hydrological conditions
and relationships;
(2) present and future economic development in the area; and
(3) present and future demand for the use of fresh water in the
locality.
Added by Acts 1989, 71st Leg., ch. 2, Sec. 15.02(a), eff. Aug.
28, 1989.
Sec. 31.015. 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 subsurface excavation construction, operation, closure, or
decommissioning is required by any federal or state agency before
approval to construct the subsurface excavation, the
environmental document, along with evidence of the needed
approvals that have been granted, must be submitted to the
commission as part of the 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 permit is considered.
Added by Acts 1989, 71st Leg., ch. 2, Sec. 15.02(a), eff. Aug.
28, 1989.
Sec. 31.016. 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 subsurface excavation 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 and shall give
notice before entering the property to the person in charge of
the property in the manner, form, and time provided by commission
rule.
Added by Acts 1989, 71st Leg., ch. 2, Sec. 15.02(a), eff. Aug.
28, 1989.
Sec. 31.017. 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 permittee or his
contractors they are investigating or monitoring as provided by
Section 31.016 of this code that relate to the construction and
operation of a subsurface excavation or any other records
required to be maintained by law.
Added by Acts 1989, 71st Leg., ch. 2, Sec. 15.02(a), eff. Aug.
28, 1989.
Sec. 31.018. FINANCIAL RESPONSIBILITY. (a) The commission may
require in a 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 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 accordance with Subsection (a) of this section or to ensure
that an abandoned subsurface excavation is safely and properly
sealed and that the land surface affected by any subsurface
construction and operation is restored to conditions as stated in
the permit.
Added by Acts 1989, 71st Leg., ch. 2, Sec. 15.02(a), eff. Aug.
28, 1989.