WATER CODE
CHAPTER 31. SUBSURFACE EXCAVATIONS
§ 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, § 15.02(a), eff. Aug. 28,
1989. Amended by Acts 1995, 74th Leg., ch. 76, § 11.303, eff.
Sept. 1, 1995.
§ 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, § 15.02(a), eff. Aug. 28,
1989. Amended by Acts 1991, 72nd Leg., ch. 14, § 284(75), eff.
Sept. 1, 1991.
§ 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, § 15.02(a), eff. Aug. 28,
1989.
§ 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, § 15.02(a), eff. Aug. 28,
1989.
§ 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, § 15.02(a), eff. Aug. 28,
1989.
§ 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, § 15.02(a), eff. Aug. 28,
1989.
§ 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, § 15.02(a), eff. Aug. 28,
1989.
§ 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, § 15.02(a), eff. Aug. 28,
1989. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff.
Sept. 1, 1995.
§ 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, § 15.02(a), eff. Aug. 28,
1989. Amended by Acts 1995, 74th Leg., ch. 106, § 5, eff. Sept.
1, 1995.
§ 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, § 15.02(a), eff. Aug. 28,
1989. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff.
Sept. 1, 1995.
§ 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, § 15.02(a), eff. Aug. 28,
1989.
§ 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, § 15.02(a), eff. Aug. 28,
1989.
§ 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, § 15.02(a), eff. Aug. 28,
1989.
§ 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, § 15.02(a), eff. Aug. 28,
1989.
§ 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, § 15.02(a), eff. Aug. 28,
1989.
§ 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, § 15.02(a), eff. Aug. 28,
1989.
§ 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, § 15.02(a), eff. Aug. 28,
1989.
§ 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, § 15.02(a), eff. Aug. 28,
1989.
