CHAPTER 31. SUBSURFACE EXCAVATIONS

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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.

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.

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.

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.

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.

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.

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.

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

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