The
Rules of the Fayette County Groundwater Conservation District (the District)
were originally adopted by the
Board
of Directors
(the Board) on December 19, 2003 at a duly posted public meeting held in
compliance with the Texas Open Meetings Act and following publication in the
newspaper of a notice of a public hearing, which public hearing was held to
receive public comment concerning the Rules, all in accordance with the Texas
Water Code Sec. 36.101, as amended. The District was created in accordance with
Section 59 of Article XVI of the Texas Constitution and in accordance with
Chapter 36 of the Texas Water Code and by an Act of the Legislature of the State
of Texas, meeting in Regular Session in 2001 as the 77th Legislature,
said Act being Chapter 302 of the General and Special Laws of the State of
Texas, 77th Legislature (2001), Regular Session, said Act being
effective September 1, 2001, said Act (Chapter 302) also being known as Texas
House Bill 1081, as amended by House Bill 535, 78th Legislature
(2003), Regular Session. The
original Rules were effective
January
1, 2004
.
The following Rules as amended and revised (the “Rules”) are hereby
ratified and adopted as the Rules of this District by its Board.
The
Rules, regulations, and modes of procedure herein contained are and have been
adopted to simplify procedures, avoid delays, and facilitate the administration
of the water laws of the State and the Rules of this District. These Rules are
to be construed to attain those objectives.
These
rules are designed to provide extensive information about the application of groundwater law
within the boundaries of the District; however, the reader is advised to consult Chapter 36,
Texas Water Code, as amended, in conjunction with these Rules. Should a conflict arise
between these Rules and Chapter 36, or where these Rules are silent, Chapter 36,
as amended, takes precedent.
These
Rules may be used as guides in the exercise of discretion by the Board, where
discretion is vested. However, these Rules shall not be construed as a
limitation or restriction upon the exercise of discretion conferred by law, nor
shall they be construed to deprive the District or the Board of any powers,
duties, or jurisdiction provided by law.
The
Rules, as amended and revised, of the Fayette County Groundwater Conservation
District were adopted by the Board as the Rules of this District on November 6,
2006, effective November 6, 2006.
RULE
REVISION RECORD
|
Date Adopted |
Effective Date |
Action |
|
12/19/2003 |
01/01/2004 |
Original Adoption |
|
05/20/2005 |
05/20/2005 |
Amended and Revised |
|
11/06/2006 |
11/06/2006 |
Amended and Revised |
SECTION 1. DEFINITIONS AND CONCEPTS
RULE 1.1 DEFINITIONS OF
TERMS
In
the administration of its duties, the Fayette County Groundwater Conservation
District follows the definitions of terms set forth in the District Act, Chapter
36 of the Texas Water Code, as amended, and the definitions of terms as follows:
“Abandoned
well” shall mean a well that has not been used for six consecutive months.
A well is considered to be in use in the following cases:
a)
a non-deteriorated well which contains the casing, pump, and pump column in good
working condition; or
b)
a non-deteriorated well which has
been capped in accordance with these Rules.
"Acre-foot" shall mean the amount of water necessary to cover one acre
of land one foot deep, or about 325,851 gallons of water.
"Agriculture" shall mean any of the following
activities, as per Chapter 36, Texas Water Code:
a)
cultivating the soil to produce crops for human food, animal feed,
or planting seeds or for the production of fibers;
b)
the practice of floriculture, viticulture, silviculture, and
horticulture, including the cultivation of plants in containers or nonsoil
media, by a nursery grower;
c)
raising, feeding, or keeping animals for breeding purposes or for
the production of food or fiber, leather, pelts, or other tangible products
having a commercial value;
d)
planting cover crops, including cover crops cultivated for
transplantation, or leaving land idle for the purpose of participating in any
governmental program or normal crop or livestock rotation procedure;
e)
wildlife management; and
f)
raising or keeping equine animals.
"Agricultural
crop" shall mean food or fiber commodities grown for resale or commercial
purposes that provide food, clothing, or animal feed.
"Agricultural
use" means any use or activity involving agriculture, including
irrigation.
“Animal
feeding operation (AFO)”, as defined by the Texas Commission on Environmental
Quality, shall mean a lot or facility, other than an aquatic animal production
facility, where animals have been, are, or will be stabled or confined and fed
or maintained for a total of 45 days or more in any 12-month period, and in
which the animal confinement areas do not sustain crops, vegetation, forage
growth, or post-harvest residues in the normal growing season over any portion
of the lot or facility. Animal
feeding operations are not considered agricultural use by the District.
Wells for animal feeding operations must obtain a permit from the
District.
"Board"
shall mean the Board of Directors of the District.
“Capped
well” shall mean a well that is closed or capped with a covering capable of
preventing surface pollutants from entering the well and able to sustain the
weight of at least 400 pounds and constructed in such a way that the covering
cannot be easily removed by hand.
“Closed Loop Well”
shall mean a well constructed for circulating water through a continuous length
of tubing, generally for earth coupled-heat exchange purposes. A
well system drilled and equipped for the purpose of utilizing the subsurface as
a source of energy and for heat exchange in heating and cooling systems.
These are sealed systems, no water is to be produced or injected.
See also Earth Coupled Heat Exchange-Closed Loop System. (An exempt
well).
“Commercial
Use” shall mean a well used to supply water to properties or establishments
which are in business to provide goods, services and/or repairs and which use
water in those processes or incidental to the maintenance of the property or
establishment including landscape irrigation; and/or a well used to supply water
to a business establishment primarily for employee and customer sanitary
purposes (i.e. flushing of toilets, sanitary purposes, or
limited landscape watering). (A non-exempt well.)
“Completed
water well” shall mean a water well which has sealed off access of
undesirable water or constituents to the well bore by utilizing proper casing
and annular space positive displacement or pressure tremie tube grouting or
cementing (sealing) methods.
"Deteriorated
well" shall mean a well or borehole that, because of its condition, will
cause, or is likely to cause, pollution of any water in this state, including
groundwater.
"De-watering
well" shall mean a well used to remove water from a construction site, or to relieve hydrostatic uplift on permanent structures.
"District"
shall mean the Fayette County Groundwater Conservation District.
"District
Act" shall mean the Act of the Legislature of the State of Texas, meeting
in Regular Session in 2001 as the 77th Legislature, said Act being
Chapter 302 of the General and Special Laws of the State of Texas, 77th
Legislature (2001), Regular Session, said Act being effective September 1, 2001,
said Act (Chapter 302) also being known as Texas House Bill 1081, as amended by
House Bill 535, 78th Legislature (2003, Regular Session, and the
non-conflicting provisions of Chapter 36, Water Code, as amended.
"District
office" shall mean the office of the District as established by resolution
of the Board.
“Domestic
use” shall mean the use of groundwater, from a well drilled, completed, or
equipped such that it is incapable of producing more than 25,000 gallons of
groundwater per day, as provided by §36.117(b)(1),
used only at and for a single-family household to support domestic activity.
Such use may include water for drinking, bathing, sanitation, washing, or
culinary purposes; for filling a pond and/or swimming pool which is entirely
lined with permanent (non-degradable) man-made materials which stop and prevent
leakage of water; for irrigation of single-family household lawns, or of a
family garden and/or orchard; and for watering of domestic animals.
Household lawns, family gardens, and/or orchards to be irrigated by a
“domestic use” well shall not exceed two contiguous acres in the aggregate.
Domestic use does not include water used to support activities for which
payment or other consideration is given or received or for which the product of
the activity is sold. Domestic use
does not include use by or for a public water system, use for any
commercial use or purpose or at any commercial establishment, or use at any
commercial establishment with a single-family household;
water use activities for which consideration is given or for
which the product is to be sold; filling or refilling ponds, depressions, lakes,
tanks, reservoirs or other confinements that have a capacity greater than 50,000
gallons; and non-closed loop well system geothermal heating/cooling systems.
“Earth Coupled
Heat Exchange” or “Closed
Loop System” shall mean a well system drilled and equipped for the
purpose of utilizing the subsurface as a source of energy and for heat exchange
in heating and cooling systems. These are sealed systems; no water is to be
produced or injected. (An exempt well).
“Emergency
conditions” shall mean any condition or activity which is causing a shortage
of available groundwater, including severe and sustained drought; below normal
recharge to the groundwater and/or aquifers in the District due to lack of
rainfall; or any condition or activity which causes a well or wells to go dry.
“Existing
and Historic Use Period” shall mean the period of time from
January 1, 1994
through the original effective date
of these Rules, being
January 1, 2004
.
“Existing
Use” shall mean production and beneficial use of groundwater from the aquifer
during the Existing and Historic Use Period.
“Existing
well” shall mean a well which was drilled or completed prior to the
District’s Rules original effective
date of
January 1,
2004
.
"Groundwater"
shall mean water located beneath the earth's surface within the District.
“Hand-dug
well” shall mean a well installed by hand digging or by hand auger drilling.
"Hearing
body" shall mean the Board, any committee of the Board, or a Hearing
Examiner at any hearing held under the authority of the District Act.
"Hearing
Examiner" shall mean a person appointed by the Board of Directors to
conduct a hearing or other proceeding.
“Historic
Use” shall mean production and beneficial use of groundwater from the aquifer
during the Existing and Historic Use period.
“Historic
Use Permit” shall mean a permit required by the District for the operation of
any non-exempt, existing water well or well system that produced groundwater
during the Existing and Historic Use Period.
"Injection
well" includes:
·
An
air conditioning return flow well used to return water used for heating or
cooling in a heat pump to the aquifer that supplied the water;
·
A
cooling water return flow well used to inject water previously used for cooling;
·
A
drainage well used to drain surface fluid into a subsurface formation;
·
A
recharge well used to replenish the water in an aquifer;
·
A
saltwater intrusion barrier well used to inject water into a freshwater aquifer
to prevent the intrusion of salt water into the freshwater;
·
A
sand backfill well used to inject a mixture of water and sand, mill tailings, or
other solids into subsurface mines;
·
A
subsidence control well used to inject fluids into a non-oil or gas producing
zone to reduce or eliminate subsidence associated with the overdraft of fresh
water; or
“Irrigation” shall mean the mechanical delivery of
water for crop production.
"Landowner" shall mean the person who bears ownership of the land
surface.
"Leachate well" shall mean a well used to remove contamination from
soil or groundwater.
“Livestock”
shall mean domesticated horses, cattle, goats, sheep, swine, poultry, ostriches,
emus, rheas, deer and antelope, and other similar animals involved in farming or
ranching operations on land recorded and taxed in the County as an agricultural
land use. Dogs, cats, birds, fish, reptiles, small mammals, potbellied pigs, and
other animals typically kept as pets are not considered livestock.
Livestock-type animals kept as pets or in a pet-like environment are not
considered livestock.
"Managed
available groundwater" shall mean the amount of water that may be permitted
by the District for beneficial use in accordance with the desired future
condition of the aquifer(s).
“Maximum Existing and Historic Use” shall mean the amount of
groundwater from the aquifer as determined by the District that, unless
proportionally adjusted, an applicant for a Existing and Historic Use Permit is
authorized to withdraw equal to the greater of the following, as may be
applicable:
1. for an applicant who has beneficial use during the Existing and
Historic Use Period for a full calendar year, the applicant’s actual maximum
beneficial use of groundwater from the aquifer excluding waste during any one
full calendar year of the Existing and Historic Use Period; or
2. for an applicant who has beneficial use during the Existing and
Historic Use Period, but, due to the applicant’s activities not having been
commenced and in operation for the full final calendar year of the Existing and
Historic Use Period, the applicant does not have beneficial use for a full
calendar year, the applicant’s extrapolated maximum beneficial use calculated
as follows: the amount of
groundwater that would normally have been placed to beneficial use without waste
by the applicant for the last full calendar year during the Existing and
Historic Use Period for the applied for purpose had the applicant’s activities
been commenced and in operation for the full final calendar year during the
Existing and Historic Use Period.
"Monitoring well" shall mean a well installed to measure some property
of the groundwater or aquifer it penetrates, and does not produce more than
5,000 gallons of groundwater per year, unless the well is being monitored with
the permission of the well owner.
“Municipal use” shall mean the use of water for a public water system for residential,
commercial, or public and institutional uses, including the application of
potable water for irrigation of golf courses, parks and recreational uses; it
does not include water for industrial uses even when industrial users are
receiving potable water.
“New
well” shall mean a well which was drilled or completed or proposed to be
drilled after the District’s Rules originally took effect on January 1, 2004.
"New
well application" shall mean an application for a permit for a water well
that has not yet been drilled.
"Open
meeting law" shall mean Chapter 551, as amended, Texas Government Code.
"Open or uncovered well” shall mean an artificial excavation dug or
drilled for the purpose of exploring for or producing water from the
groundwater reservoir and which is not capped or covered as required by
this chapter [§36.118, Texas Water Code].
"Operating
Permit" shall mean a permit issued by the District for the production of
groundwater, usually by a water well, or by excavation, or by penetration into
an aquifer, allowing groundwater to be withdrawn for a designated period.
“Permit”
shall mean written authorization issued by the District for the production of
groundwater, usually by a water well, or by excavation, or by penetration into
an aquifer, allowing a specified amount of groundwater to be withdrawn for a
non-exempt specific use and a designated period.
See “Operating Permit”.
"Pitless
adapter" shall mean an assembly of parts which will permit water to pass
through the wall of the well casing or extension thereof; provides access to the
well and to the parts of the water system within the well; and provides for the
transportation of the water and the protection of the well and water therein,
from surface or near surface contamination. Parts or appurtenances to a pitless
well adapter include, but are not limited to, the vent, the device(s) on or in
the wall of the casing, and the cap or cover on top of the casing or casing
extension.
“Plugging” shall mean an
absolute sealing of the well bore.
“Pollution”
shall mean the alteration of the physical, thermal, chemical, or biological
quality of, or the contamination of, any water that renders the water harmful,
detrimental, or injurious to humans, animals, vegetation, or property, or to
public health, safety, or welfare, or impairs the usefulness or the public
enjoyment of the water for any or reasonable purpose.
"Public
Information Act" shall mean Chapter 552, as amended, Texas Government Code.
"Person"
includes corporation, individual, organization, government or governmental
subdivision or agency, business trust, estate, trust, partnership, association,
or any other legal entity.
"Presiding
officer" shall mean the President, Vice-President, Secretary, or other
Board member presiding at any hearing or other proceeding or a Hearing Examiner
conducting any hearing or other proceeding.
“Registered
well” shall mean a well for which the owner, driller, or operator has provided
location, usage, and drilling log and other information to the District on a
form provided by the District for that purpose.
“Replacement Well” shall
mean a well that is drilled to replace an existing well where (a) the existing
well that is being replaced is permanently closed, and (b) the replacement well
is drilled within 50 feet from the closed well.
"Rules"
shall mean the Rules of the District adopted
December
19, 2003
,
along with the amendments compiled in this document and as may be
supplemented or amended from time to time, as provided by the laws of the State
of
Texas
.
"Section"
shall mean the number section of a survey or block as shown in "Texas
Country Farm Plats," 1996 Edition, (Smith Publishing Co.).
“Sustainability” is defined
as balancing groundwater withdrawals with natural recharge and replenishment to
maintain long-term stability in the amount and quality of groundwater in the
aquifers underlying the District, and in regional or local groundwater supplies.
"Texas
Rules of Civil Procedure" and "Texas Rules of Civil Evidence"
mean the civil procedure and evidence rules as amended and in effect at the time
of the action or proceeding. Except as modified by the Rules of the District,
the rights, duties, and responsibilities of the presiding officer acting under
the Texas Rules of Civil Procedure or the Texas Rules of Evidence are the same
as a court acting under those rules.
“Vanity pond” shall mean a pond used purely for aesthetic/landscape
purposes.
“Verification Period” means the period of time from
January 1, 2007
, to
January 1, 2009
, during which an Existing and Historic Use permittee
shall be required to meter and report to the District their groundwater
production and during which such users may amend their Historic Use Permit
applications.
"Waste"
shall mean Texas Water Code Chapter 36.001 (8) Definitions and Section 5 of these Rules.
"Water
meter" shall mean a water flow measuring device that can accurately record
the amount of groundwater produced during a measured time.
"Well" shall mean
any facility, device, or method, including excavation or other penetration into
an aquifer, used to withdraw groundwater from the groundwater supply within the
District, including a water well, test well, injection
well, dewatering well, monitoring well, piezometer well, observation
well, or recovery well.
“Well
operator” shall mean the person who operates a well or operates a water
distribution system supplied by a well.
"Well
owner" shall mean the person who owns the land upon which a well is located
or is to be located, or any person or other entity, public or private, that has
the right to produce groundwater from the land either by ownership, contract,
lease, easement or any other estate in the land or groundwater.
"Well
system" shall mean a well and distribution system or
group of wells connected or tied to the same distribution system.
"Withdraw"
shall mean extracting groundwater by pumping or by another method.
"Windmill"
shall mean a wind-driven or hand-driven device that uses a piston pump to remove
groundwater.
RULE 1.2 PURPOSE OF RULES
These
Rules are adopted to achieve the provisions of the District Act, of Chapter 36,
Water Code, as amended, and Section 59 of Article XVI, Texas Constitution, and
to accomplish their purposes.
The Rules contained herein are the foundation for achieving the goals of
the District Act and Management Plan.
In
order for the District to achieve its purposes, goals and mission, and to strive
to assure long term availability of adequate, good quality groundwater,
compliance with District Rules by water well drillers and pump installers as
well as by District constituents is mandatory.
RULE 1.3 USE AND EFFECT OF RULES
The
District uses these Rules as guides in the exercise of the powers conferred by
law and in the accomplishment of the purposes of the District Act. They may not
be construed as a limitation or restriction on the exercise of any discretion
nor be construed to deprive the District or Board of the exercise of any powers,
duties or jurisdiction conferred by law.
In fulfilling the stated purpose
of these Rules, the board will endeavor to maintain the amount and quality of
groundwater in the aquifers in the district on a sustainable basis.
RULE 1.4 AMENDING OF RULES
The
Board may, following notice and hearing, amend these rules or adopt new rules
from time to time.
RULE 1.5 HEADINGS AND CAPTIONS
The
section and other headings and captions contained in these rules are for
reference purposes only. They do not affect the meaning or interpretation of
these rules in any way.
RULE 1.6 CONSTRUCTION
A
reference to a title, chapter or section without further identification is a
reference to a title, chapter or section of the Water Code, as amended.
Construction of words and phrases are governed by the Code Construction Act,
Subchapter B, Chapter 311, Government Code.
RULE 1.7 METHODS OF SERVICE UNDER THE RULES
1.
Documents shall be filed at the District either by hand delivery,
mail, or telephonic facsimile document transfer to the District Office. The
document shall be considered filed as of the date received by the District at
the District Office for a hand delivery; as of the date reflected by the
official United States Postal Service postmark if mailed; and, for telephonic
facsimile document transfers, as of the date on which the telephonic facsimile
document transfer is complete, except that any transfer complete and received at
the District Office after official District business hours will be deemed
complete and received on the following business day. If a person files a
document by facsimile, he or she must file a copy by mail within three (3)
calendar days.
2.
Except
as otherwise expressly provided in these Rules, any notice or documents required
by these Rules to be served or delivered may be delivered to the recipient, or
the recipient's authorized representative, in person, by agent, by courier
receipted delivery, by certified mail sent to the recipient's or authorized
representative’s last known address, or by telephonic facsimile document
transfer to the recipient's current facsimile number.
Service by mail is complete upon deposit in a post office or other official
depository of the United States Postal Service. Service by telephonic facsimile
document
transfer is complete upon transfer, except that any transfer occurring after official
District business hours will
be deemed complete and received on the following business day. If service or
delivery is by mail, and the recipient has the right, or is required, to do some
act within a prescribed time after service, three (3) calendar days
will be added to the prescribed period.
RULE 1.8 SEVERABILITY
If
any one or more of the provisions contained in these Rules are for any reason
held to be invalid, illegal, or unenforceable in any respect, or the application
thereof to any person or circumstances is held to be invalid, the invalidity,
illegality, or unenforceability shall not affect any other Rules or provisions
of these Rules, and these Rules must be construed as if such invalid, illegal or
unenforceable rules or provision had never been contained in these Rules, and to
this end the provisions of these Rules are severable.
RULE 1.9 EFFECTIVE DATE
Except as otherwise specified,
all Rules contained herein are effective
January 1, 2004
and apply to
all water wells drilled, repaired, or altered within the District.
SECTION 2. BOARD
RULE 2.1 PURPOSE OF BOARD
The
District Board determines and carries out District policy and regulates the
withdrawal of groundwater within the boundaries of the District for the purposes
of conserving, preserving, protecting and recharging the groundwater within the
District, and for the purpose of preventing waste of the groundwater within the
District, and to exercise its rights, powers, and duties in a way that will
effectively and expeditiously accomplish the purposes of the District Act and of
Chapter 36, Water Code, as amended, and of Section 59, Article XVI, Texas
Constitution. The Board's responsibilities include, but are not limited to, the
adoption and enforcement of reasonable rules and other orders.
RULE 2.2 BOARD STRUCTURE, OFFICERS
The
Board consists of the members elected and qualified as required by the District
Act. The Board will elect one of its members to serve as President, to preside
over Board meetings and proceedings; one to serve as Vice President to preside
in the absence of the President; and one to serve as Secretary to keep a true
and complete account of all meetings and proceedings of the Board. The Board may
make other appointments as allowed by Chapter 36, Water Code, as amended.
The Board may elect officers annually, but must elect officers at the
first meeting in January, after the newly elected or re-elected board members
are sworn in, following elections of Directors held in each even numbered year.
Members and officers serve until their successors are elected or appointed and
sworn in accordance with the District Act and these Rules.
RULE 2.3 MEETINGS
The
Board will hold a regular meeting at least once each month as the Board may
establish from time to time by resolution.
At the request of the President, or by written request of at least three
members, the Board may hold special meetings. All Board meetings will be held
according to the Texas Open Meetings Law.
RULE 2.4 COMMITTEES
The
President may establish committees for formulation of policy recommendations to
the Board, and appoint the chair and membership of the committees. Committee
members serve at the pleasure of the President.
RULE 2.5 EX PARTE COMMUNICATIONS
Board
members may not communicate, directly or indirectly, about any issue of fact or
law in any contested case before the board, with any agency, person, party or
their representatives, except on notice and opportunity for all parties to
participate.
SECTION 3. DISTRICT STAFF
RULE 3.1 GENERAL MANAGER
The
Board may employ a person to manage and conduct the duties, business, and
functions of the District, subject to orders, directions and control of the
Board. The title of this person is
general manager. The Board will determine the salary and review the position of
general manager each year at the beginning of the third quarter of every fiscal
year.
RULE 3.2 STAFFING OF THE DISTRICT
The
General Manager, with approval of the Board, may employ all persons necessary
for the proper handling of business and operation of the District. The General
Manager shall recommend salaries for employees (other than his/her self), but
said salaries must be approved by the Board. The General Manager will review the
position of each staff member as necessary.
SECTION 4. DISTRICT
RULE 4.1
POWERS OF THE DISTRICT
The
District has the powers and authority conferred upon it by the District Act, by
Section 59, Article XVI, Texas Constitution, by Chapter 36, Water Code, as
amended, by other State law, rules and regulations, and by the District Rules,
including the authority to regulate the spacing of water wells and to regulate
the production of groundwater from the water wells.
RULE
4.2 MINUTES AND RECORDS OF THE DISTRICT
All
documents, reports, records, and minutes of the District are available for
public inspection and copying following the Texas Open Records Act. Upon written
application of any person, the District will furnish copies of its public
records. A copying charge may be levied pursuant to policies established by the
District, in accordance with the Open Records Act.
A list of the charges for copies will be furnished by the District.
RULE
4.3 CERTIFIED COPIES
Requests
for certified copies must be in writing. Certified copies will be made under the
direction of the Board of Directors. A certification charge and copying charge
may be assessed, pursuant to policies established by the Board of Directors.
RULE
4.4 DISTRICT MANAGEMENT PLAN
The
District Management Plan specifies the acts, procedures, performance and
avoidance necessary to prevent waste, the reduction of artesian pressure, or the
draw-down of the water table. The District shall use the Rules of the District
to implement the Management Plan. The Board will review the plan at least every
fifth year. If the Board considers amendments to the plan or a new plan
necessary or desirable, after notice and public hearing, amendments to the plan
or a new plan will be adopted. A plan, or amended plan, once adopted, remains in
effect until the adoption of a new plan.
RULE
4.5 OFFICIAL COMMUNICATIONS
The
District Management Plan specifies the acts, procedures, performance and
avoidance necessary to prevent waste, the reduction of artesian pressure, or the
draw-down of the water table. The District shall use the Rules of the District
to implement the Management Plan. The Board will review the plan at least every
fifth year. If the Board considers amendments to the plan or a new plan
necessary or desirable, after notice and public hearing, amendments to the plan
or a new plan will be adopted. A plan, or amended plan, once adopted, remains in
effect until the adoption of a new plan.
SECTION
5. WASTE AND BENEFICIAL USE
RULE
5.1 DEFINITION OF WASTE
“Waste”,
as defined in Chapter 36, Texas Water Code, as amended, means any one or more of
the following:
- Withdrawal
of groundwater from a groundwater bearing sand or strata or from a
groundwater reservoir at a rate and in an amount that causes or threatens to
cause intrusion into the groundwater or reservoir of water unsuitable for
agricultural, gardening, domestic or stock raising purposes;
- The
flowing or producing of wells from groundwater or a groundwater reservoir if
the water produced is not used for a beneficial purpose;
- Escape
of groundwater from a groundwater bearing sand or strata or from a
groundwater reservoir to any other reservoir or geologic strata that does
not contain groundwater;
- Pollution
or harmful alteration of groundwater in a groundwater reservoir by saltwater
or by other deleterious matter admitted from another stratum or from the
surface of the ground;
- Willfully
or negligently causing, suffering, or allowing groundwater to escape into
any river, creek, natural watercourse, depression, lake, reservoir, drain,
sewer, street, highway, road, or ditch, or onto any land other than that of
the owner of the well unless such discharge is authorized by permit, rule,
or order issued by the Texas Commission on Environmental Quality under
Chapter 26;
- Groundwater
pumped for irrigation that escapes as irrigation tailwater onto land other
than that of the owner of the well unless permission has been granted by the
owner of the land receiving the discharge; or
- For
water produced from an artesian well, waste has the meaning assigned by
Section 11.205 Texas Water Code.
RULE
5.2 WASTE PREVENTION
1.
Groundwater
shall not be produced within, or used within or outside the District, in such a
manner or under such conditions as to constitute waste as defined in Rule 5.1
hereof. Water
shall not be produced from an abandoned or deteriorated well.
2.
No
person shall pollute or harmfully alter the character of the underground water
reservoir of the District by means of salt water or of other deleterious matter
admitted from some other stratum or strata from the surface of the ground.
3.
No
person shall commit waste of groundwater as that term is defined in Chapter 36,
Water code, and in Section 5 of these Rules.
4.
Any
person producing or using underground water shall use every possible precaution,
in accordance with the best available or most approved methods, to stop and
prevent waste of such water.
5.
A
well identified as an abandoned or deteriorated well, or a borehole, must be
plugged, capped or re-completed in accordance with the requirements of the
District and of any statewide law, agency or political subdivision having
jurisdiction including, but not limited to, the Texas Water Well Drillers Act,
and the Texas Commission on Environmental Quality.
a.
The District may require a well to be capped to prevent waste,
prevent pollution, or prevent further deterioration of a well casing. The well
must remain capped until such time
as the conditions that led to the capping requirement are eliminated. If well
pump equipment is removed from a well and the well will be re-equipped at a
later date, the well must be capped, provided however that the casing is not in
a deteriorated condition that would permit co-mingling of water strata, in which
case the well must be plugged. The
cap must be capable of sustaining a weight of at least four hundred (400) pounds
and must be constructed with a water tight seal to prevent entrance of surface
pollutants into the well itself, either through the well bore or well casing.
b.
A deteriorated or abandoned well must be plugged in accordance
with the Texas Department of License and Regulation, Water Well Drillers and
Pump Installers Rules (16 TAC Chapter 76). It is the responsibility of the
landowner to see that such a well is plugged to prevent pollution of the
underground water and to prevent injury to persons and animals. Registration of
the well is required prior to, or in conjunction with, well plugging.
i.
When an open or uncovered, deteriorated, or abandoned well is
found by District personnel or brought to the District’s attention by a
constituent, a letter will be sent to the owner of the property upon which the
open or uncovered, deteriorated, or abandoned well exists, notifying the
property owner of his responsibility to cap or plug the well.
The property owner will also be provided with an information brochure on
the proper closing of abandoned wells.
ii.
The property owner will be notified in the letter that the
District may contribute up to 50% of the cost of the capping or plugging of the
open or uncovered, deteriorated, or abandoned well, not to exceed $300
contribution by the District per well, on a first come – first served basis,
as long as money remains in the budget for that purpose.
If the well owner plugs or caps his own well, he may be reimbursed up to
50% of his out of pocket expenses, not to exceed $300 contribution by the
District per well, on a first come – first served basis, as long as money
remains in the budget for that purpose, and provided he can supply sufficient
written evidence of payment of those expenses.
Lack of District funds does not
preclude the landowner’s responsibility, both under the State of Texas’
Water Well Drillers and Pump Installers Rules and the District’s Rules, to cap
or plug the open or uncovered, deteriorated, or abandoned well.
iii.
The property owner will be given one
hundred eighty (180) calendar days in which to comply.
The District Manager shall set up a calendaring system which will alert
the District when a follow-up is due. The
property owner will also be notified that he must file a Well Plugging Form with
the Texas Department of Licensing and Regulation within thirty (30) calendar
days after the well is plugged. A
copy of the completed form must also be sent to the District by the property
owner.
iv.
Once the property owner has notified the District that the
well has been closed (capped or plugged), the District may inspect that well
to insure compliance. District
personnel may inspect well closures on a random basis.
v.
Should the property owner fail to respond within the one
hundred eighty (180) calendar days, refuse to cap or plug the well, or
fail to submit the Well Plugging Form within one
hundred eighty (180) calendar days, the District Manager shall send a
letter notifying the well owner or operator that he is in violation of District
Rules and is therefore subject to a fine for each day the violation continues.
An invoice assessing the cumulative amount of the fine will be sent to
the well owner or operator. If the
fine is not paid and the well is not closed within thirty (30) calendar
days of receipt of the invoice, the District may instruct its attorney to bring
legal proceedings to cause the open or uncovered, deteriorated, or abandoned
well to be brought into compliance
with the District Rules, and to seek a judgment for the amount of the unpaid
fine, which would place a lien on the land on which the well is located.
The lien, if filed, will only be removed upon proper well closure and
payment of the assessed fine.
RULE
5.3 USE FOR A BENEFICIAL PURPOSE
Use
of groundwater in accordance with the rules of the District is for a beneficial
purpose if it is used for:
a)
Agricultural, gardening, domestic, stock raising, municipal, mining,
manufacturing, industrial, commercial, or recreational purposes;
b)
Exploring for, producing, handling, or treating oil, gas, sulphur, or
other minerals; or
c)
Any other purpose that is useful and beneficial to the user and does not
meet the definition of waste as described in Rule 5.1.
SECTION 6. SPACING REQUIREMENTS
RULE 6.1 REQUIRED SPACING
When a water
well is pumped, water levels in the vicinity are drawn down in the shape of an inverted cone, with its apex at the pumped well.
Where intensive development has taken place in ground-water reservoirs,
each well superimposes its own individual cone of
depression on the cone of
neighboring wells. This results in the development of
a regional cone of depression.
When the cone of one well overlaps the cone of another, interference occurs and
an additional lowering of water levels occurs as the wells compete for water by
expanding their cones of depression. The amount or extent of
interference between cones of depression depends on the rate of
pumping from each well, the spacing between wells, and the hydraulic characteristics
of the groundwater or aquifer in which the wells are
completed.
Therefore, it is important to
set minimum spacing requirements between water wells, in order to prevent a well
on one tract from interfering with the production of a well on another property. The District
has defined the following spacing requirements, to assist the District in
managing the available groundwater and maintaining the desired future condition
of each of its aquifers.
1.
No new well may be drilled
within 50 feet (50’) from the
property line of any adjoining landowner. On
any new division of property, new property lines shall also be a minimum of
fifty feet (50’) from any existing wells, unless otherwise approved by the
District.
2. In addition to the spacing of
wells from adjoining property boundaries, well spacing (distance of one well
from other wells) is an important tool suggested by Chapter 36 to help in the
management and protection of the groundwater and aquifers from large and/or
concentrated water usage. Spacing requirements for permitted wells will be based
on the distance of the well from the adjoining property lines as well as from
other wells. Pending collection of
additional hydrogeologic and other scientific data,
spacing of new wells from an existing well shall be one foot per one
gallon per minute of production from the new well up to maximum of one thousand
(1000) gallons per minute. A new
well producing over one thousand (1000) gallons per minute will be spaced one
thousand (1000) feet plus one-half (1/2) foot per one gallon per minute of
production in excess of one thousand gallons per minute from an existing well.
RULE
6.2 EXCEPTIONS TO SPACING REQUIREMENTS
1. A landowner with property smaller than the
minimum five acre tract size may make application to the District for a waiver,
or exception, by following the procedures defined in Rule 6.3 for the proposed
well. The Board has the discretion to grant an exception to the
spacing requirements concerning the new proposed well location.
2.
Providing
an applicant can show, by clear and convincing evidence, good cause why a new
well should be allowed to be drilled closer than the required spacing of 50 feet
from an adjoining property line, the issue of spacing requirements will be
considered during the permitting process. If the Board, after considering the
evidence presented, determines to grant a permit or an exception to drill a well
that does not meet the spacing requirements, the Board may limit the production
of the well to ensure no injury is done to the groundwater or aquifer.
3.
If
the Board grants an exception to the spacing requirements for a proposed new
well, that well must be completed in accordance and in compliance with the
standards of the Texas Water Well Drillers and Water Well Pump Installers Rules
(see 16 TAC 76.1000 Technical Requirements – Locations and Standards of
Completion of Wells).
4.
The Board may, if good cause is shown by clear and convincing evidence by
an applicant, enter special orders or add special permit conditions increasing
or decreasing spacing requirements.
RULE
6.3 MINIMUM TRACT SIZE
A well will not be allowed to be drilled on properties of
less than five (5) contiguous acres. The District will cooperate with Fayette
County officials to ensure that proposed new wells will be drilled in compliance
with current minimum tract sizes or other tract or lot requirements or
restrictions imposed by Fayette County.
Owners of properties smaller than five contiguous acres which were the
result of a subdivision prior to the date of the District Rules taking effect,
January 1st, 2004, and whose proposed well meets the definition of
“exempt” (see Rule 9.7), may apply for an exception to the District Rule
using a slightly simplified procedure than that which is described in Rule 15.4:
a waiver signed by each landowner whose property borders or adjoins that of the
applicant is not required. The
District will make every effort to work with the property owner(s) of properties
that were subdivided prior to
January 1, 2004
to either grant the exception or develop an alternative solution which would
not require an exception. The
General Manager has the authority to grant an exception under this rule for
properties which were the result of a subdivision prior to the date of the
District Rules taking effect,
January 1st, 2004
. All such exception activities
shall be reported to the Board by the General Manager at regular Board meetings.
A well that meets the definition of “exempt”
(see Rule 9.7) must be drilled within ninety (90) calendar days after the
exception is granted, or the exception will become null and void.
The property owner may request an extension, which the Board may grant if
the circumstances warrant such consideration.
Alternatively, the property owner may re-apply for an exception at a
later date.
SECTION 7. PRODUCTION LIMITATIONS
RULE
7.1 MAXIMUM ALLOWABLE PRODUCTION
1.
In order to accomplish the purposes of Texas Water Code Chapter
36, and achieve the stated purposes and goals of the District, including
managing the sustainability of the aquifers and preventing significant,
sustained water-level declines within the aquifers, the Board reserves the right
to establish any production limits necessary on new or existing permits.
2.
Maximum
allowable production of groundwater will be determined based upon the number of
contiguous acres in the property on which the well or well system is located,
and upon the distance of that well from the adjoining property line as well as
from other wells.
3.
The
total annual production for a permitted well will be determined by the distance
from the property line and other wells on the property in accordance with known
factors of groundwater and aquifer productivity, available hydrological data and
calculated recharge rates deemed appropriate for the groundwater resource.
Any and all production rates may be altered or adjusted by the Board
should a drought condition occur in the area or region.
4.
An
exception to the production limitations will be considered after ten (10)
calendar days’ written notice is given by the applicant to all adjacent
landowners and all other landowners within one-half mile of the well site.
Following proof of written notice, the Board shall call a public hearing to take
evidence and testimony on the proposed exception, after which they may grant or
deny the request for the exception. If all the land owners required to receive
notification by this Rule waive their right to object to the exception, the
exception may be granted, provided the application meets all other requirements
and provisions of these Rules.
5.
Excluding wells operated pursuant to a valid Existing and Historic
Use Permit, in no event may a well or well system be operated such that the
total annual production exceeds two acre-feet of water per contiguous acre owned
or operated, or for which a person can show ownership or possession of
groundwater rights, per year. Specific
production limitations will be set as a condition of the granted well operating
permit.
6.
A non-exempt well or well system
for which an Existing and Historic Use Permit has been issued shall be operated
such that the total annual production will not exceed the amount authorized
under the Existing and Historic Use Permit and any additional permits issued in
compliance with these Rules. Between the effective date of these rules and the
date that a final Existing and Historic Use Permit has been issued to a well
owner for an existing non-exempt well or well system, the well owner or operator
shall not withdraw during any calendar year an amount of groundwater greater
than the maximum amount produced in any one calendar year during the historic
period as shown in the application for the historic use permit.
SECTION
8. WATER WELL REGISTRATION
RULE
8.1 REGISTRATION OF WELLS
1.
Except for those types of wells listed in Subsection 8.1(3), all
wells within the District, whether exempt or non-exempt from permitting, are
required to be registered with the District on forms approved by the General
Manager.
2.
Registration of an existing, exempt well will provide the owner or
operator of the well with evidence that the well existed before the effective
date of these Rules for purposes of determining historical user status.
Registration of an existing, exempt well will also include the well in
the spacing protections provided by Section 6.
3.
The following types of wells are not required to be registered
with the District: leachate wells, extraction wells, injection wells, dewatering
wells, and wells used to supply water for
hydrocarbon production activities.
4.
It
is a violation of these Rules for a well owner, well operator, or water well
driller to drill any well without the well registration form being filed with
the District, either in person, by mail, or by facsimile, as provided herein.
5.
It shall be unlawful for any person to act as, or to offer to
perform services as a well driller or pump installer without first obtaining a
license pursuant to the Texas Water Code, Chapters 32 and 33.
Only a licensed well driller or licensed pump installer may install,
service or alter a well within the boundaries of the
Fayette County Groundwater Conservation District
, unless a person drills or constructs a water well on his
property for his own use. All
persons drilling a well or having a well drilled, deepened, or altered shall
adhere to the provisions of Chapters 32 and 33 of the Texas Water Code, and 16
Texas Administrative Code, Chapter 76, prescribing the location of wells and
proper drilling, completion, capping, and plugging.
RULE
8.2 REGISTRATION OF EXISTING WELLS
All existing wells (groundwater wells drilled and completed
prior to
January 1, 2004
), except for those types of wells listed in Subsection 8.1 (3), must be
registered by the well owner or well operator.
Registration forms will be provided by the District and furnished to the
applicant upon request. The District
may offer a grace period in which existing wells can be registered without
requiring a well log deposit or any other fee.
The owner or operator of an existing well must be fully
compliant with all registration requirements and other applicable provisions of
these Rules by August 1, 2007. Failure
to register an existing well by August 1, 2007 will make the well ineligible for
Historic Use status under Section 9.12.
RULE
8.3 REGISTRATION OF NEW WELLS
All new wells,
except for those types of wells listed in Subsection 8.1 (3), must be registered by the well owner, well
operator, or water well driller. If
a new well meets spacing (Rule 6) and production (Rule 7) requirements and meets
the exclusions or exemptions provided in Rule 9.7, the registrant may begin
drilling immediately. A registration
form must be filed within fourteen (14) calendar days after the well is drilled.
For any other (non-exempt) wells, an application for a well permit must
be filed by the well owner, well operator, or water well driller prior to
drilling the well.
The driller of any water well within the District shall keep accurate
drillers' logs, and copies of drillers' logs shall be filed by the driller with
the District within thirty (30) calendar days after such drilling is
complete.
SECTION
9. PERMITS
RULE
9.1 APPLICABILITY
1.
No person may drill, equip, complete, operate, alter the size of a
well or well system, or produce groundwater from a well or well system without
first obtaining a permit from the District as provided by statutory law and
these Rules, unless the well meets the definition of “exempt” (see Rule
9.7).
2.
Water Well Permits, called “Operating Permits” herein, are
issued to authorize the withdrawal of a specified
amount of groundwater from a non-exempt water well for a specific use and a
designated period.
3.
Transport
Permits are issued to authorize the withdrawal of a specified amount of
groundwater from a water well for a specific use and a designated period for
transportation out of the District. Additional
requirements and conditions for Transport Permits are defined in Section 10.
4.
Existing and Historic Use Permits are issued for registered
non-exempt wells that were in existence and producing groundwater for use within
the District prior to January 1, 2004, the original effective date of the
District Rules.
RULE
9.2 GENERAL PERMITTING POLICIES AND
PROCEDURES
1.
Permit
Requirement:
The well owner, well operator, or any other person acting on behalf of the well
owner, must file a completed application for a water well permit before a
non-exempt well may be drilled. This application for a well permit shall not be
granted until the opportunity for a due process public hearing has been
satisfied and the Board has approved the permit. A
non-exempt well may not be placed into production until a permit for that well
is granted by the District.
2.
Within
fourteen (14) calendar days after a well is drilled, the well owner or well
operator must also notify the District office as to the status of the well.
The well or well system must remain permitted until an operating permit
is no longer required for the well/well system.
3.
If
the well for which a permit was granted has not been completed within six (6)
calendar months, or one hundred eighty (180) calendar days, after the permit was
granted, the permit shall be cancelled, unless the permit holder can provide a
reasonable explanation for the delay and an estimated completion date.
If a permit is cancelled for this reason, the well owner, well operator,
or any other person acting on behalf of the well owner, must file a new
completed application for a water well permit.
4.
Permit
Applications:
Each original application for a water well permit or permit renewal requires a
separate application. Application
forms will be provided by the District and furnished to the applicant upon
request.
The application for a permit shall be in writing and sworn to, and
shall include the following:
a.
the name and mailing address of the applicant and the owner of the
land on which the well will be located;
b.
if the applicant is other than the owner of the property,
documentation establishing the applicable authority to construct and operate a
well for the proposed use;
c.
a location map of all existing wells within a quarter (1/4) mile
radius of the proposed well or the existing well to be modified;
d.
the total amount of groundwater requested to be withdrawn under
the permit, a statement of the nature and purpose of the proposed use and the
amount of water to be used for each purpose;
e.
a declaration that the applicant will comply with the District’s
Rules and all groundwater use permits and plans promulgated pursuant to the
District’s Rules;
f.
a water conservation plan or a declaration that the applicant will
comply with the District’s management plan;
I.
Contents of Conservation Plan.
Conservation plans shall consider, as a minimum, the following:
(A)
Promotion and encouragement of
voluntary conservation measures;
(B)
Promotion and encouragement,
installation, and use of water saving devices;
(C)
Promotion and encouragement of
water efficient landscape practices;
(D)
Implementation of a
conservation-oriented rate structure;
(E)
Financial measures which
encourage conservation;
(F)
Distribution of conservation
information and other educational efforts;
(G)
Provision for ordinances,
regulations or contractual requirements necessary for the permittee to enforce
the Conservation Plan; and
(H)
Other conservation criteria
set by the Board.
II.
Compliance.
The District shall approve Conservation Plans, if they satisfy the
objectives of this Rule. The
permittee may revise or amend the Conservation Plans, as necessary, with
approval by the District.
III.
Irrigation.
Irrigation water users may be required to obtain an irrigation water
management plan in cooperation with the local soil and water conservation
district.
g.
the location of each well and the estimated rate at which water
will be withdrawn. The location may
be shown on a topographic map, ownership map, or a map prepared by a registered
professional engineer or a registered surveyor which shows the proposed well and
any other structure or location regarding the proposed well and associated
activities. The map shall depict the
approximate boundaries of the tract of land owned or to be used by the
applicant.
h.
the proposed casing size, well depth, pump size, and pump
capacity;
i.
a Drought Contingency Plan (DCP).
Each permittee is required to prepare, adopt, and implement a DCP
consistent with these Rules.
I.
Contents of DCP. DCPs shall consider, as a minimum, the
following:
(A)
establishment of a permittee historical baseline pumpage volume
and target pumpage volume in accordance with reduction goal percentages of the
three Critical Groundwater Depletion Area categories (see Section 16 of these
Rules;
(B)
voluntary compliance restrictions to achieve a 10% reduction goal;
(C)
demand reduction measures which may include prohibition of water
waste, alternative and/or supplemental water supply sources, adjustment to water
rates, and use of water saving devices;
(D)
additional demand reduction measures developed by the permittee
which achieve reduction goal percentages associated with each Critical
Groundwater Depletion Area category;
(E)
financial measures which encourage compliance with the
Conservation Plan and Drought Contingency Plan while maintaining financial
stability of the permittee during Critical Groundwater Depletion Area
categories;
(F)
provision for ordinances, regulations or contractual requirements
necessary for the permittee to enforce the DCP; and
(G)
provisions for reporting pumpage.
II.
Compliance. The District shall approve DCPs, if they satisfy the
objectives of this Rule. The permittee may revise or amend the DCP, as necessary
to reflect changes in permitted pumpage, subject to administrative approval by
the General Manager. Any other revisions or amendments must be approved by the
Board.
j.
Hydrogeological Report Required: An applicant for
a new well that involves the production of more than 200
acre-feet of groundwater annually shall submit to the District a current
hydrogeological report addressing the area of influence, expected drawdown and
recovery time, and other pertinent information required by the District.
The hydrogeological report shall be prepared by
a qualified person who is properly licensed by the State of
Texas
to prepare such report. The report shall include hydrogeologic information
addressing and specifically related to the proposed water pumpage levels at the
proposed pumpage site. Applicants
may not rely solely on reports previously filed with or prepared by the
District. The report must be
submitted prior to the permit being granted, and failure to submit a
hydrogeological report when required by the District is a violation of these
Rules and shall be grounds for rejection of the permit application.
The Board shall make the final determination of whether a hydrogeological
report meets the requirements of this subsection.
Hydrogeological reports required for permit applications shall:
(A)
State and describe the results of a pumping test of the well for
which an operating permit is being requested.
(B)
Address the area of influence of the well for which a permit is
being requested.
(C)
Include an assessment of the geology at the site of the well for
which a permit is being requested and a description of the aquifer that will
supply water to the well.
(D)
Be completed in a manner that complies with the guidelines adopted
by the District for this purpose.
k.
any other information deemed necessary by the Board.
5.
Notice
of Permit Hearing:
Once the District has received a completed original application for a water well
permit or an operating permit renewal, the District will issue written notice
indicating a date and time for a hearing on the application in accordance with
these Rules. The District may schedule as many applications at one hearing as
deemed necessary.
6.
Decision
and Issuance of Permit:
In deciding whether or not to issue a permit, and in setting the terms of the
permit, the Board must consider whether the application conforms to the
requirements prescribed by Chapter 36 of the Texas Water Code, as amended, and
the District Rules. Before
granting or denying an Operating Permit, the District shall also consider
whether:
a.
the
proposed use of water unreasonably affects existing groundwater and surface
water resources, existing permit holders, and/or existing exempt wells;
b.
the
proposed use of water is dedicated to any beneficial use;
c.
the
proposed use of water is consistent with the District’s certified management
plan;
d.
the
applicant has agreed to avoid waste and achieve water conservation; and
e.
the
applicant has agreed that reasonable diligence will be used to protect
groundwater quality and that the applicant will follow well plugging guidelines
at the time of well closure.
7.
Term
of
Operating
Permits: Unless
specified otherwise by the Board, except for permits used for agricultural
purposes, all operating permits are effective for a five (5) year period from
the date a permit is granted, unless changed or revoked, or a different period
of time is required by the Texas Water Code.
Operating permits for wells used solely for agricultural purposes are
effective until changed or revoked. Unless
specified otherwise by the Board or these Rules, operating permits are effective
until revoked. The permit term will be shown on the permit. Operating permits
may be renewed by the Board following application and hearing.
8.
Permit
Provisions:
The permit will contain the standard provisions listed in Rule 9.3. The
permit may also contain provisions relating to the means and methods of
transportation of water produced within the district.
9.
Aggregation
of Withdrawal:
In issuing an operating permit, the authorized withdrawal for a given well
may be aggregated with the authorized withdrawal from other permitted wells
designated by the District. District
Rules 5 and 6, as well as other applicable Rules, will be considered in
determining whether or not to allow aggregation of withdrawal. For the purpose
of categorizing wells by the amount of groundwater production, where wells are
permitted with an aggregate withdrawal, the total authorized withdrawal will be
assigned to the wells in aggregate, rather than allocating to each well its pro
rata share of production. This will allow a well owner, with a number of water
wells which supply a single well system, to apply for an operating permit for
the well system, and consequently, will not be required to apply for a separate
operating permit for each individual well. This provision will allow a well
owner to apply for an operating permit for each individual well, in the event a
number of wells from more than a single numbered Section, may be used to
supplying a very large single well system.
10.
Regardless
of the type of beneficial use for the groundwater to be produced, an Operating
Permit shall be granted by the District based upon surface acreage for
which the applicant can show possession or ownership of groundwater rights
within the boundaries of the District that is not already recognized in another
Operating Permit. See also Rule 6.3.
11.
Effect
of Acceptance of Permit:
Acceptance of the permit by the person to whom it is issued constitutes
acknowledgment of and agreement to comply with all of the terms, provisions,
conditions, limitations, and restrictions.
RULE
9.3 OPERATING PERMIT PROVISIONS
All
permits are granted subject to these Rules, orders of the Board, and the laws of
the State of
Texas
.
In addition to any special provisions or other requirements incorporated into
the permit, each permit issued must contain the following standard permit
provisions:
This
permit is granted in accordance with the provisions of the Rules of the
District, and acceptance of this permit constitutes an acknowledgment and
agreement that the permittee will comply with the Rules and any emergency
conditions assessed by the District.
1.
This permit confers only the right to operate the permit under the
provisions of these Rules , and its terms may be modified or amended pursuant to
the provisions of these Rules. Any person who becomes the owner of a currently
permitted well is responsible for that permit and is responsible to comply with
the terms of that permit. The
permit’s terms may be modified or amended pursuant to the provision of these
Rules.
2.
Withdrawal or production of groundwater from all permitted (non-exempt)
wells or well systems must be measured by the owner or operator and reported to
the District. The operation of
the well for the authorized withdrawal must be conducted in a non-wasteful
manner: the water withdrawn under
the permit must be put to beneficial use at all times.
3.
Withdrawals from all non-exempt wells must be measured by the owner or
operator using a device or method that is within plus or minus 10% of accuracy.
Measured or estimated water use shall be reported to the District annually in
January. The Board may
require monitoring devices on permitted wells which would be available for
District inspection during business hours.
4.
The well site must be accessible to District representatives for
inspection, as stated in Rule 15.1, and the permittee agrees to cooperate fully
in any reasonable inspection of the well and well site by the District
representatives.
5.
The application pursuant to which the operating permit has been issued is
incorporated in this permit, and this permit is granted on the basis of and
contingent upon the accuracy of the information supplied in that application. A
finding that false information has been supplied is grounds for immediate
revocation of the permit.
6.
Violation of the operating permit's terms, conditions, requirements, or
special provisions, including pumping amounts in excess of authorized
withdrawal, is a violation of these Rules and is punishable
by civil penalties as provided by these Rules.
RULE
9.4 MITIGATION PLAN
In order to ensure no
unreasonable effects on existing groundwater and surface water resources, the
District shall require any well permit applications producing greater that 200
acre/feet of water per calendar year from the same producer or connected or to
be connected to a common gathering/transportation piping system or to the same
user, to include in the application a plan to mitigate the effects of the
drawdown of artesian pressure or the level of the water table upon the
registered or permitted well owners potentially affected by that well or wells.
The plan shall include but not be limited to:
1.
The actions and procedures to be taken by the holder of the well
permit in the event that pumping causes the water level in any other registered
or permitted well to drop to an unacceptable level.
2.
The actions and procedures to be taken by the holder of the well
permit in the event that the pumping from the permitted well causes the water to
become objectionable or renders the water unusable to any other registered or
permitted well owner.
3.
The actions and procedures to be taken by the holder of the well
permit in the event that pumping causes the well casing or equipment to be
damaged so that the recorded quality or quantity of water cannot be produced by
any other registered or permitted well owner.
4.
The actions and procedures to be taken by the holder of the well
permit in the event that pumping causes springs or any other artesian wells used
for beneficial purposes to stop flowing.
5.
The plan shall also include measures to be taken in cases where
the reduction of artesian pressure causes an emergency to arise which may
threaten human or animal health, safety or welfare.
6.
The plan shall also contain a specifically enumerated time
schedule for the execution of the mitigation plan.
7.
In the issuance of an operating permit, the Board may require of
the operating permit holder the establishment of an escrow fund to protect
existing users as required by Texas Water Code Chapter 36.113 and Chapter
36.1131. This escrow fund is to be
deposited with the District. The
administration and disbursement of this escrow fund is at the sole discretion of
the Board.
RULE
9.5 COMPLETENESS OF APPLICATION
1.
Applications for well registration, operating permits, and
transport permits shall be made in the name of the well owner or property owner
on a form or forms provided by the District.
The sworn, original application must be submitted and signed by the owner
or an authorized agent of the owner, who may be required to provide the District
with a notarized authorization from the owner.
This agent may be the well driller, lessee or renter of the property or
well, power of attorney, or other appropriate agent.
District staff will determine if an application is administratively
complete.
2.
The District will not take action on an application which is not
administratively complete or which has not proceeded in a manner consistent with
District Rules. An application may
be rejected as not administratively complete if the District finds that
substantive information required by the application or District staff is
missing, false, or incorrect. Applicants
submitting incomplete applications will be notified by the District in writing.
3.
If an
application is deemed incomplete, and the applicant has been notified in writing
of the missing, false, or incorrect information, the applicant must submit to
the District the information requested by the District within thirty (30)
calendar days, or the application shall be deemed to have expired.
4.
The District
shall promptly consider and act on each administratively complete application
for a permit or permit amendment. If,
within 60 days after the date an administratively complete application is
submitted, the application has not been acted on or set for a hearing on a
specific date, the applicant may petition the district court of the county where
the land is located for a writ of mandamus to compel the district to act on the
application or set a date for a hearing on the application, as appropriate.
RULE
9.6 OPERATING PERMIT LIMITATIONS
On approval of an application,
the District shall issue an operating
permit to the applicant. The
permitted right to produce shall be limited to the extent of and for stated
purpose(s) in the permit. The permit is in effect and valid for the life of the
well as permitted, unless the well is reworked, as discussed in Section 12, or unless
the District determines that the permit owner is not in compliance with the
permit conditions or District Rules. In
event of such noncompliance, the District will notify the permit owner of the
conditions that may cause revocation of the permit and allow the owner an
opportunity to correct any noncompliance. If
the owner does not effect compliance with the permit conditions or the District
Rules, by Board action the permit may be cancelled.
1.
Maximum
Authorized Withdrawal:
It is a violation of these Rules to pump any amount of water over the amount
authorized by the permit.
2.
Operating
Permit Required:
It is violation of these Rules to pump a well without an operating permit
application being approved with the District by the
Board
of Directors
.
3.
Permits may be transferred to another person through change of
ownership of the well provided all permit conditions remain in compliance with
District Rules. Within ninety
(90) calendar days after the date of change in ownership of a well system, a
permit holder must notify the District in writing of the name of the new owner.
4.
Permits issued under these Rules are subject to change or revocation for
waste, deviation from the purposes and terms of the permit, damage or adverse
affect caused to groundwater or to aquifers, water level declines that will
result in the District’s inability to maintain the desired future condition of
the aquifers, severe drought conditions, identification of a Critical
Groundwater Depletion Area, or availability of other sources of water not
available at the time of permit issuance.
5.
A new permit must be obtained when any qualifying information on
the permit changes, including, but not limited to, a change in ownership of the
land the well or well system is located on, a change in the boundaries of the
property, a change in the type of use of the water produced, or the repair or
reworking of the well as discussed in Section 12.
RULE
9.7 EXCLUSIONS AND EXEMPTIONS
The
following wells are exempted from the permit requirements in Section 9 of
obtaining an operating permit:
1.
a well used solely for domestic use or for providing water for
livestock or poultry on a tract of land larger than 5 acres that is either
drilled, completed, or equipped so that it is incapable of producing more than
25,000 gallons of groundwater a day;
2.
wells
used to supply water for hydrocarbon production activities associated with any
oil or gas well permitted by the Railroad Commission of Texas.
A well authorized under a permit issued by the Railroad Commission of
Texas under Chapter 134, Natural Resources Code, or for production from such a
well to the extent the withdrawals are required for mining purposes regardless
of any subsequent use of the water. These
water wells are not required to comply with the spacing requirements of the
District as long as the withdrawals are required and used for mining activities.
The District shall require a well to be permitted and comply with
District Rules if the withdrawals from the well are no longer necessary for
mining activities, or are greater than the amount necessary for mining
activities specified in the permit issued by the Railroad Commission of Texas
under Chapter 134, Natural Resources Code. An
entity holding such a Chapter 134 permit for a water well shall report monthly
to the District (1) the total amount of water withdrawn during the month; (2)
the quantity of water necessary for mining activities; and (3) the quantity of
water withdrawn for other purposes.
3.
A well to supply water for a subdivision of land for which a plat
approval is required by Chapter 232, Local Government Code is not exempted under these Rules, in accordance with Section
36.117.
4.
The following types of wells do not require a permit from the
District: leachate wells, extraction
wells, injection wells, dewatering wells, monitoring wells that produce less
than 5,000 gallons per year, and wells used to supply water for hydrocarbon
production activities.
5.
Groundwater withdrawn from a well exempt from permitting or
regulation under these Rules and subsequently transported outside of the
District boundaries is subject to any applicable production and export fees
under Section 36.122 and 36.205.
6.
As
stated in Rule 8.1, wells exempt from the requirements of obtaining a permit
must still register with the District. A
well used solely for agricultural and/or domestic use that is capable of
producing more than 25,000 gallons of groundwater per day may obtain an exempt
status if the well owner signs an agreement stating that such well will not
produce more than 25,000 gallons per day on any day.
7.
The District may require an Exempted Well to obtain an Operating
Permit and comply with these Rules if:
a.
a well exempted under Rule 9.7(4) above is no longer used to
supply water for a drilling rig that is actively engaged in drilling or
exploration operations permitted by the Railroad Commission of Texas; or
b.
withdrawals from an exempted well are:
1.
no longer necessary for mining purposes permitted by the Railroad
Commission of Texas under Chapter
134, of the Texas Natural Resources Code; or
2.
greater than the amount necessary for mining purposes permitted by
the Railroad Commission of Texas
under Chapter 134, Natural Resources Code; or
c.
the size or capacity of a well previously exempted under these
Rules is substantially altered and
such alteration would render the well non-exempt.
8.
As specifically set forth in these Rules, an Operating Permit or
an amendment thereto is required to produce water from a non-exempt well, to
substantially alter the size or capacity of a non-exempt well, or to alter an
exempt well if the alteration would render the well non-exempt.
RULE
9.8 PERMIT AMENDMENTS
1.
It is a violation of these Rules for a permittee to violate any
term, provision, or restriction contained in a permit issued by the District.
A permittee must apply for and receive an amendment to their permit prior
to changing any term, provision, or restriction in the permit.
2.
Amendment Types:
a.
Minor amendments
may include a request to:
i.
change the name or address of the well owner without any change in
use;
ii.
decrease the maximum authorized withdrawal;
iii.
increase the maximum authorized withdrawal by ten percent or less
of the total annual permitted pumpage;
iv.
convert two or more wells individually permitted by the same
permittee into an aggregate system under one permit to the same permittee.
v. add a domestic or livestock us as an additional use to a
permitted well, if an actual beneficial use exists for the additional use, and
the maximum authorized withdrawal amount or rate is not increased.
b.
All other amendments, including all amendments to permits
involving the export of groundwater, are major
amendments.
3.
Minor amendments may be granted by the General Manager without
notice, hearing, or further action by the Board; although the General Manager
may, in his discretion or upon request by a Board member, post and notice the
minor amendment for Board action.
If two or more minor amendments are requested during any permit term for
an increase in maximum authorized withdrawal, and the combined increase in
volume requested in the amendments exceeds the limits described in Subsection
2(a) for minor amendments, then the amendment which results in an increase in
maximum authorized withdrawal in excess of the limits specified in Subsection
2(a) above for minor amendments will be considered a major amendment.
4.
Major amendments shall be subject to all the requirements and
procedures applicable to issuance of a new permit for a new well.
5.
An application for permit amendment shall be made on forms
supplied by the District and shall include payment of a processing fee established by the
Board, if any.
No application processing fee will be required from permittees requesting
a decrease in maximum authorized withdrawal.
6.
An amendment to change the ownership of a well or well system must
be submitted within ninety (90) calendar days of the transfer of ownership.
RULE
9.9 PERMIT REVOCATION
1.
A permit is not a vested right of the holder and may not be
transferred by the holder. The Board
may transfer an Existing and Historic Use Permit to a replacement well or to a
person who purchases or otherwise receives ownership of a well owned by an
historical user, provided that the new owner or operator maintains the same type
of use of the well and fulfills any applicable requirements of the District.
2.
After notice and an opportunity for hearing is given, a permit may
be revoked, suspended, terminated, canceled, modified, or amended in whole or in
part for cause, including, but not limited to (i) violation of any terms or
conditions of the permit, (ii) obtaining the permit by misrepresentation or
failure to disclose relevant facts, or (iii) failure to comply with any
applicable Rules, regulations, fee schedule, special provisions, requirements,
or orders of the District. The
permittee shall furnish to the District upon request, and within ninety (90)
calendar days, any information to determine whether cause exists for revoking,
suspending, terminating, canceling, modifying, or amending a permit.
RULE
9.10 PERMIT RENEWAL
1.
Well owners or operators shall make application to renew permits
required under these Rules within ninety (90) calendar days prior to the
expiration of the permit term on a renewal application form provided by the
District. The well owner or operator
shall indicate on the renewal application form whether any changes to the well,
well operations, purpose of use, or special conditions have occurred.
2.
Renewals shall be accomplished by the General Manager without
notice or hearing if the terms and conditions of operation listed in the permit
have not changed.
3.
If the well owner or operator seeks to change any of the permit
terms or conditions in the renewal application, the application will be
scheduled for a hearing and consideration by the Board under Section 14.
The
application to renew a permit shall be accompanied by payment of the application
processing fee established by the Board, if any.
4.
The application to renew a permit shall be accompanied by payment of the
application processing fee established by the Board, if any.
RULE
9.11 REPORTING REQUIREMENTS
1.
All well logs, pump test data, water level data, water quality
data, or any other data pertinent to a well shall be submitted to the District
office within sixty (60) calendar days after completion of the well or well
project. In accordance with Section
36.111, records shall be kept and reports be made to the District regarding the
drilling, equipping, and completing of water wells and of the production
capability and use of groundwater by the well owner.
2.
On or before January 31st of each year, a permittee
authorized to produce groundwater shall file an annual report with the District
describing the amount of water produced and used for the permitted purposes
during the preceding calendar year. The
report shall be filed on a form obtained from the District.
3.
On or before the 10th of each month, a permittee
authorized to transport groundwater outside of the District boundaries shall
file a monthly report with the District describing the total amount of
groundwater produced and the amount transported outside of the District
boundaries during the preceding month. The
report shall be filed on a form obtained from the District.
4.
During hydrological studies, pump tests, or in areas designated by
the Board as Critical Groundwater Depletion Areas, the Board may require
production-monitoring devices to be installed on non-exempt, permitted wells at
the permittee's expense. These
monitoring devices shall be made available for District inspection during normal
business hours or during the pump tests or studies as necessary.
An hour meter may be considered a production-monitoring device if the
well output in gallons per minute can be measured accurately.
5.
District employees, Board members, consultants, or other agents of
the District may conduct random or periodic inspections of permitted wells for
any District purpose. The District
shall coordinate and schedule such inspections with the well owner, as
authorized by Rule 15.1.
RULE
9.12 EXISTING AND HISTORIC USE PERMITS
1.
Purpose. The District
seeks to not exceed the sustainable yield of groundwater resources in the
District, protect spring flow, and protect existing water wells, and historic
users to the maximum extent practicable. In
order to more accurately determine the amount of groundwater being used, the
District will grant Existing and Historic Use Permits to non-exempt wells that
were in existence and producing groundwater prior to January 1, 2004, the
original effective date of these Rules.
Permits issued by the District for Existing and Historic Use shall bear a
reasonable relationship to the District's certified management plan and shall
reasonably protect Existing and Historic Use.
2.
It is the intent of the District
to determine existing and historic use of groundwater within the District as set
forth under this rule.
3.
Designation of Historic Use
Status. All owners of existing registered, non-exempt Well Systems that were
completed and operational prior to the original effective date of these Rules,
and that produced and used groundwater in any year during the Existing and
Historic Use Period (January 1, 1994 to January 1, 2004) shall apply to the
District for an Existing and Historic Use Permit no later than August 1, 2007.
4.
An Existing and Historic Use Permit is required from the District
by December 31, 2007, for all existing non-exempt Well Systems that were drilled
and completed prior to the original effective date of these Rules, and that wish
to claim beneficial use of water during the Existing and Historic Use Period.
5.
Failure of an owner of such a Well System to file an application
for an Existing and Historic Use Permit by August 1, 2007, shall preclude the
owner from making any future claim or application to the District for Existing
and Historic Use under these Rules or otherwise and shall preclude the owner's
ability to operate the Well System under these Rules, unless such owner obtains
an Operating Permit under current Rules.
6.
Registered exempt wells are given Existing and Historic Use status
automatically, and every effort will be made by the District to protect those
wells as if an Existing and Historic Use Permit were granted.
7.
Application For Historic
Use Status. All applications for
an Existing and Historic Use Permit shall include the following information to
the extent the information exists and is available to the applicant through the
exercise of reasonably diligent efforts:
A.
the year in which each well in the Well System was drilled;
B.
the purpose for which each well in the Well System was drilled and
types of subsequent use of the water produced or withdrawn from such Well
System;
C.
annual water production history of the Well System for at least
one year during the Existing and Historic Use Period;
D.
the Maximum Historic Use of the well or well system;
E.
legal description of the tract of land on which the well or well
system is located;
F.
all information requested by the District in a form which shall be
prescribed and provided by the District;
G.
for irrigation wells, crop type and acreage of crop irrigated by
the well or well system for at least one year during the Existing and Historic
Use Period;
H.
for irrigation wells, deed and legal description of irrigable land
previously irrigated by the well or well system, including the year irrigated
and the deed and legal description for land on which the well or well system is
located, during the Existing and Historic Use Period;
I.
for non-irrigation wells, the deed and legal description for the
tract of land on which the well or well system is located;
J.
documentation regarding enrollment of each tract of land in the
United States Department of Agriculture, Farm Service Agency, Conservation
Reserve Program, or other such program or service, for which an Existing and
Historic Use Permit is sought pursuant to these Rules; and
K.
any other information determined necessary by the Board.
8.
Verification. The District reserves the
right to verify the extent of maximum beneficial use of groundwater prior to the
effective date of these rules, claimed by each applicant for an historic use
permit. The General Manager shall either recommend the granting of a proposed
Existing and Historic Use permit or a denial, in whole or in part, based on the
application and information obtained by the District in relation to the use of
groundwater by the applicant. The District shall obtain the information on which
to base a recommendation either from the applicant or other credible sources.
Such credible sources may include, but not be limited to, federal, state or
other local agencies or governmental entities.
9.
Notice
to Public. The District shall publish
notice of the recommended proposed permits or denials and make such
recommendations available for public review and inspection. Any
applicant or any affected party shall have ninety (90) calendar days from the
date of the above notice to file a request for hearing.
10.
The Board shall consider the
proposed Existing and Historic Use permit application and any other evidence
presented by an applicant or an affected party prior to making its decision.
Protestants.
A
person desiring to protest an application for Existing and Historic Use Permit
shall file with the District a notice of protest no later than 15 days after
newspaper notice, and shall serve the notice of protest on the applicant at the
time of filing. The notice of protest shall set forth the protestant’s
justiciable interest and how that justiciable interest would be adversely
affected by the permit proposed by the application. The Board may take testimony
and shall deliberate and take official action at the hearing to determine
whether the protestant has sufficiently demonstrated their justiciable interest
and how that justiciable interest would be adversely affected by the permit
proposed by the application. If the Board finds that a protestant does not
adequately establish that its justiciable interest is affected by the proposed
permit, then the protestant shall not be allowed to participate in the hearing.
11.
Application
Fee. The validity of an
Historic Use permit is contingent upon payment by the applicant of the
appropriate application fee, if any, established by the Board under Section 11
of these Rules.
12.
Metering.
An applicant for an Historic Use permit must install a metering or
measuring device on each existing well for which an application has been
submitted.
13.
Reporting.
Within 15 days of January 31 of each year, each Historic Use permit
holder must submit a water use report to the District, on a form provided by the
District, stating the following: (a) the name of the permittee; (b) the permit
number; (c) the well numbers of each well for which the permittee holds a
permit; (d) the total amount of groundwater produced by each well and well
system during each month of the immediately preceding calendar year; (e) the
purposes for which the water was used; and (f) any other information requested
by the District.
14.
Production of Groundwater.
Existing and Historic Use Permits are a recognition by the
District of Existing and Historic Use under this Section and shall entitle the
permittees to produce or withdraw groundwater in accordance with the production
regulations set forth in these Rules. The
quantity that may be withdrawn shall not exceed the Maximum Historic and
Existing Use demonstrated by the applicant, and determined by the Board.
15.
Reductions.
If the District determines that the total amount of production from an
aquifer is greater than the annual sustainable amount available for withdrawal,
production amounts may be decreased proportionally among all permit holders
producing from that aquifer, with any necessary reductions being applied first
to Operating Permits and, subsequently, if production is still greater than
availability after reducing Operating Permits in their entirety, to Historic and
Existing Use Permits.
16.
Beneficial Use. The Board shall not issue Existing and Historic Use Permits
for wells or lands for which the Board determines the well owner or operator did
not beneficially use groundwater during the Existing and Historic Use Period as
set forth under this Section.
17.
Transfer of Historic Use
Permit. Existing and Historic
Use Permits are granted conditionally, and are granted to a specific owner and
type of water use. An Existing and
Historic Use Permit is not a vested right of the permittee. The District may
transfer an Existing and Historic Use Permit upon receiving an administratively
complete District approved Permit Application Form stating a request for a
permit amendment specific to a request in Change of Ownership. Said application
shall comply with all District rules and regulations relating to permit
amendments relative to change in ownership status.
18.
Aggregation. A
permittee having a well or wells, each well having an Existing and Historic Use
Permit may be aggregated or combined with additional wells while still retaining
an Existing and Historic Use Permit for the aggregated system if all of the
following provisions are satisfied:
A.
the total aggregate withdrawal of groundwater assigned to the
aggregated system shall be equal to or less than the combined total of all
individual pumpage permits comprising the entire aggregated system; and
B.
all individual pumpage permits have an Historic Use designation;
and
C.
all individual pumpage permits are in compliance with any and all
applicable District rules and regulations.
20.
Replacement Wells. A
permittee may apply to re-equip, re-drill, or replace a currently permitted
while preserving its Existing and Historic Use designation by filing an
application to amend such permit and providing such information as may be
required by the General Manager under the following conditions:
A.
the replacement well must be drilled on the same tract of land as
the original well as defined by the legal description filed with the County
Clerk; and
B.
the re-equipped, re-drilled, or replacement well complies with all
applicable District rules and regulations, including issuance of permits and
authorizations and payment of all fees and charges; and
C.
if a replacement well is drilled, the permittee shall cease
production from the well being replaced and immediately comply with any and all
well closure and abandonment requirements pursuant to District Rules.
21.
Permit Conditions. The
maximum annual quantity of groundwater that may be withdrawn under an Historic
and Existing Use Permit issued by the District shall be no greater than the
amount specified in the permit or the amended permit. Permits
may be issued subject to conditions and restrictions placed on the rate and
amount of withdrawal pursuant to the District’s rules and permit terms
necessary to prevent waste and achieve water conservation, minimize as far as
practicable the drawdown of the water table or the reduction of artesian
pressure, lessen interference between wells, or control and prevent subsidence.
The permittee, by accepting the permit, agrees to abide by any and all
groundwater withdrawal regulations established by the District that are
currently in place, as well as any and all regulations established by the
District in the future. Acceptance of the permit by the person to whom it is
issued constitutes acknowledgment of and agreement to comply with all of the
terms, provisions, conditions, limitations, and restrictions.
22.
In the interest of promoting conservation of groundwater, the
District shall allow an applicant for an Existing and Historic Use Permit to
apply for a permit authorization in an amount less than the applicant’s
Maximum Existing and Historic Use.
23.
The District may impose more restrictive permit conditions on new
permit applications, and on increased use by Existing and Historic Users if the
limitations:
A.
apply to all subsequent new permit applications and increased use
by Existing and Historic Users, regardless of type or location of use;
B.
bear a reasonable relationship to the existing District Management
Plan; and
C.
are reasonably necessary to protect existing use.
24.
Term of Permits:
Unless specified otherwise by the Board, all Existing and
Historic Use Permits are effective for a five (5) year period from the date a
permit is granted, unless amended or revoked, or a different period of time is
required by the Texas Water Code. The permit term will be shown
on the permit.
25.
Permit Renewal.
The General Manager may rule on any renewal application without notice,
hearing, or further action by the Board, or with such notice and hearing as the
General Manager deems practical and necessary under the circumstances.
The General Manager may deny a renewal application on any reasonable
ground, including, but not limited to, a determination that the applicant is
currently in violation of these Rules or Chapter 36, Texas Water Code, or that
the applicant has a previously unresolved violation on record with the District.
Any applicant may appeal the General
Manager’s ruling by filing, within ten business days of the General
Manager’s ruling, a written request for a hearing before the Board. The Board
will hear the applicant’s appeal at the next available regular Board meeting.
The General Manager shall inform the Board of any renewal applications granted.
On the motion of any Board member, and a majority concurrence in the motion, the
Board may overrule the action of the General Manager. The General Manager may
authorize an applicant for a permit renewal to continue operating under the
conditions of the prior permit, subject to any changes necessary under
proportional adjustment regulations, these Rules, or the District’s Management
Plan, for any period in which the renewal application is the subject of a
contested case hearing. All permit
renewal activities will be reported to the Board by the General Manager at
regular Board meetings.
RULE
9.13 TEST HOLES
1.
A person
wishing to explore for groundwater must, prior to commencement of drilling, file
with the District a Notice of Intent to Drill a Test Well.
The Notice of Intent to Drill a Test Well shall include the following
information:
A.
A. The name,
mailing address and telephone number of the Applicant and the Owner of the real
property on which the Test Hole(s) will be drilled.
B.
The name,
mailing address and telephone number of the driller or contractor and the date
drilling operations will begin.
C.
The Section,
block, survey, league or other recorded legal description of the real property.
D.
An agreement
by the Applicant that the location of the Test Hole(s) and driller’s logs will
be furnished to the District by the Applicant, or by the Applicant’s
authorized representative, upon completion of the Test Hole operation. The
location of the Test Hole(s) shall be identified by a metes and bounds
description or by a Global Positioning System (GPS) longitude and latitude
reading (TWC § 36.112).
E.
A declaration
that the Test Hole(s) will be plugged and logs and plugging reports will be
furnished to the District upon completion of the Test Hole operation. Or,
if the test well will be converted to a water well, the test well will be capped
with a covering capable of sustaining a weight of at least 400 pounds until the
test well is converted to a water well.
F.
A declaration
of whether the drilling and operation of the test well is restricted to a
geophysical exploration or will include pumping tests and the short-term
production of groundwater for testing purposes only.
G.
Any other
information deemed necessary by the General Manager of the District, subject to
the approval of the Board.
2.
No person may commence drilling a test well prior to District
approval. The General Manager is
delegated approval authority for test wells restricted to geophysical
exploration absent pumping tests. Authorization
to drill a test well which will include pumping tests and the production of
groundwater is subject to Board approval as an uncontested matter.
3.
Each Notice of Intent to Drill a Test Well shall be accompanied by
an application fee, by certified check, personal check, or postal money order,
payable to the District, and shall be delivered to the District office.
The test well application fee may be applied to the fee required for a
well permit application made prior to the final expiration date of the test well
application.
4.
Authorization for drilling and production evaluation of a test
well will expire one (1) year from the date of approval by either the General
Manager or the Board.
SECTION
10. TRANSFER OF GROUNDWATER OUT OF THE
DISTRICT
RULE
10.1 PERMIT REQUIRED
Groundwater
produced from within the District may not be transported outside the District's
boundaries unless the Board has issued the well owner or operator a Transport
Permit. The requirements of this
Rule are applicable without regard to the manner the water is transferred out of
the district and specifically includes discharges into watercourses to convey
water, as well as pipelines, conduits and aqueducts.
1.
The
District may impose a reasonable fee for processing an application under this
Section. An application filed to
comply with this Section shall be considered and processed under the same
procedures as other applications for other permits, and shall be combined with
applications filed to obtain a permit for in-District water use from the same
applicant, if any.
2.
The
application for a Transport Permit shall identify which Operating Permit(s)
issued by the District the applicant wishes the District to include in the
Transport Permit and for which the maximum quantity of water available for
transfer outside of the boundaries of the District shall be determined.
3.
The
District shall not issue a Transport Permit, unless the Transport Permit
applicant has obtained an underlying Operating Permit(s), or amendment thereto,
that authorizes the Transport Permit applicant to produce or withdraw the
quantity of groundwater to be transferred outside of the boundaries of the
District.
4.
The
District shall not deny a permit under this Section based on the fact that the
applicant seeks to transfer groundwater outside of the boundaries of the
District but shall restrict a Transport Permit by limiting the annual production
of groundwater for transport outside of the boundaries of the District to a
quantity of water based on the ability to maintain the desired future condition of the aquifer from which the
groundwater will be withdrawn.
5.
Unless specified within this section, all other requirements and
conditions listed in Section 9 apply to Transport Permits as well.
RULE
10.2 APPLICABILITY
For purposes of this section,
the following activities are not considered to be an export of groundwater:
1.
The export of groundwater from the District for incidental use (a
beneficial use of water which is of a minor nature).
Transport of water outside the District by a permittee, with a type of
Permit other than a Transport Permit, which totals 5% or less, but in no case
more than five (5) acre feet, of the permittee’s annual permitted pumpage is
considered incidental use.
2.
The export of groundwater for an agricultural operation or
domestic use, which would otherwise qualify as an exempt well under the
definitions in these Rules, that overlaps or is adjacent to the District
boundary; or
3.
The export of groundwater that occurs as a result of the
distribution of water within a single, aggregate system of a retail or
non-retail public water system that overlaps the District boundary, as long as
the exported groundwater is supplied to and used by the customers of that public
water system.
RULE 10.3 APPLICATION
An
application for a transportation permit must be filed in the District office, be
in writing and sworn to, and must include the following information:
1.
The
name and mailing address of the applicant, and the name and address of the owner
of the land, if different from the applicant, on which the well is to be
located;
2.
If
the applicant is other than the owner of the property, documentation
establishing the necessary and applicable authority to construct and operate a
well on the owner’s property for the proposed use;
3.
A
statement of the nature and purpose of the proposed use and the amount of water
to be used for each purpose and the period of time each purpose is expected to
continue;
4.
A
water conservation plan applicable to the area or jurisdiction where the
transported water will be delivered and put to beneficial use, and a declaration
showing that the applicant will comply with the District’s management plan;
a.
Contents
of Conservation Plan.
Conservation plans shall include, as a minimum, the following:
i.
Promotion
and encouragement of voluntary conservation measures;
ii. Promotion
and encouragement, installation, and use of water saving devices;
iii. Promotion
and encouragement of water efficient landscape practices;
iv.
Implementation
of a conservation-oriented rate structure;
v.
Financial
measures which encourage conservation;
vi.
Distribution
of conservation information and other educational efforts;
vii.
Provision
for ordinances, regulations or contractual requirements necessary for the
permittee to enforce the Conservation Plan; and
viii. Other
conservation criteria set by the Board.
b.
Compliance.
The District shall approve Conservation Plans, if they satisfy the
objectives of this Rule. The
permittee may revise or amend the Conservation Plans, as necessary, with
approval by the District.
5.
The
location of the well(s) and rates of withdrawal.
The location may be shown on a topographic map, ownership map, or a map
prepared by a registered professional engineer or a registered surveyor which
shows the proposed well and any other structure or location regarding the
proposed well and associated activities. The
map shall depict the approximate boundaries of the tract of land owned or to be
used by the applicant.
6.
Proof
of notification of all landowners adjacent to the property where the well or
wells are located and all well owners within one-half mile of any of the
proposed production wells;
7.
the proposed casing size, well depth, pump size, and pump
capacity;
8.
A
drought contingency plan (DCP) which is acceptable to the District.
a.
Contents of DCP. DCPs shall consider, as a minimum, the
following:
i.
establishment of a permittee’s historical baseline pumpage
volume and target pumpage volume in accordance with reduction goal percentages
of the three Critical Groundwater Depletion Area categories (see Section 16 of
these Rules);
ii. voluntary compliance restrictions to achieve a 10% reduction goal;
iii. demand reduction measures which may include prohibition of water
waste, alternative and/or supplemental water supply sources, adjustment to water
rates, and use of water saving devices;
iv. additional demand reduction measures developed by the permittee
which achieve reduction goal percentages associated with each Critical
Groundwater Depletion Area category;
v. financial measures which encourage compliance with the
Conservation Plan and Drought Contingency Plan while maintaining financial
stability of the permittee during Critical Groundwater Depletion Area
categories;
vi. provision for ordinances, regulations or contractual requirements
necessary for the permittee to enforce the DCP; and
vii.
provisions for reporting pumpage.
b.
Compliance. The District shall approve DCPs, if they
satisfy the objectives of this Rule. The permittee may revise or amend the DCP,
as necessary to reflect changes in permitted pumpage, subject to administrative
approval by the General Manager. Any other revisions or amendments must be
approved by the Board.
9.
Additional Requirements. An application for a permit that involves the export of
groundwater from the District shall include the following additional
information:
a.
the location of the proposed receiving area for the water to be
exported;
b.
a detailed statement of the nature and purpose of the various
proposed uses in the proposed receiving area and the amount of groundwater to be
used for each purpose;
c.
information describing the projected effect of the proposed
exportation of water on aquifer conditions, depletion, subsidence, and existing
permit holders or other groundwater users within the District;
d.
a copy of a proposed plan, if any, to mitigate any adverse impacts
of the proposed export on groundwater users within the District;
e.
a description of how the proposed export is addressed in any
approved regional water plan(s), if applicable; and
f.
a technical description of the facilities to be used for
transportation of the groundwater and a time schedule for construction thereof.
10.
Performance Test Required:
Upon completion of the well, an applicant for a new well that involves
the export of groundwater out of the District shall submit to the District a
current hydrogeological report addressing the area of influence, drawdown,
recovery time, and other pertinent information required by the District.
The well must be equipped to test for production capacity and the
hydrogeological report must address the impacts of that use.
The hydrogeological report shall be prepared by a qualified person who is
properly licensed by the State of
Texas
to prepare such report. The report shall include hydrogeologic information
addressing and specifically related to the proposed water pumpage levels at the
proposed pumpage site. Applicants
may not rely solely on reports previously filed with or prepared by the
District. The report must be
submitted prior to putting the well into operation, and failure to submit a
hydrogeological report as required by the District is a violation of these Rules
and shall be grounds for cancellation of the permit.
The Board shall make the final determination of whether a hydrogeological
report meets the requirements of this subsection, and must be accepted and
approved by the District prior to production of groundwater. Hydrogeological
reports required for permit applications shall:
a.
State and describe the results of a pumping test of the well for
which a permit is being requested.
b.
Address the area of influence of the well for which a permit is
being requested.
c.
Include an assessment of the geology at the site of the well for
which a permit is being requested and a description of the aquifer that will
supply water to the well.
d.
Be completed in a manner that complies with the guidelines adopted
by the District for this purpose.
11.
any other information deemed necessary by the Board.
RULE
10.4
HEARING
AND PERMIT ISSUANCE
1.
Applications
for transportation permits are subject to the hearing procedures provided by
these Rules in Section 14.
2.
In
determining whether to issue a permit to transfer groundwater out of the
District, the Board shall consider the information provided in Rule 10.3 above,
the provisions and requirements of the Texas Water Code, as amended, and of
these Rules, and the following information:
a.
availability
of groundwater in the District and in the proposed receiving area;
b.
availability
of feasible and practicable alternative supplies to the applicant and in the
proposed receiving area;
c.
the
amount and purposes of use for which water is needed in the proposed receiving
area;
d.
the
projected effect of the proposed transfer on groundwater and aquifer conditions,
depletion, subsidence, or effects on existing permit holders or other
groundwater users within the District;
e.
the
indirect costs and economic and social impacts associated with the proposed
transfer of water from the District;
f.
the
approved regional and state water plan, if one has been approved for the
receiving area, and the certified District management plan, if one has been
approved for the receiving area;
g.
other
facts and considerations considered necessary by the District's Board for
protection of the public health and welfare and conservation and management of
groundwater resources in the District.
h.
the
applicant’s water conservation plan and whether the applicant has agreed to
prevent waste and achieve water conservation and, if any subsequent user of the
water is a municipality or entity providing retail water services, the water
conservation plan, and agreement to prevent waste and achieve water
conservation, of that municipality or entity shall also be provided;
i.
the
location of the well and rates of withdrawal; and
j.
the
period of time for which the permit is sought.
RULE 10.5
TERM OF TRANSPORT PERMITS.
1.
In
accordance with Sec. 36.122, Texas Water Code, as amended, the period specified
by the Transport Permit shall be:
a.
three (3) years if construction of a conveyance system has not
been initiated prior to the issuance of the permit; or
b.
thirty (30) years if construction of a conveyance system has been
initiated prior to the issuance of a permit;
2.
The three (3) year period specified under Rule 10.5 (1) (a) shall
automatically be extended to thirty (30 years if construction of a conveyance
system is begun before the expiration of such three (3) year period.
3.
For the purposes of this Section, construction of a conveyance
system has been initiated when the permittee has completed construction of at
least 10% of the portion of the conveyance facilities located within the
District that will be used to convey the maximum annual quantity of groundwater
permitted for transport outside of the boundaries of the District.
RULE
10.6 TRANSPORTATION PERMIT AMENDMENTS.
1.
Amendment
to a Transportation Permit. It is a
violation of these Rules to transfer any amount of water in excess of the amount
or withdrawal rate specified in the transportation permit issued by the
District, or by any means or route not authorized by a transportation
permit issued by the District. A written, sworn application for an amendment
to a transportation permit must be
filed and the amendment granted before any deviation in the transportation permit occurs. The applicant must demonstrate that the originally
authorized terms and conditions in the transportation permit have proven inadequate and why there is a need to change the
authorization.
2.
Submission
of application. The applicant for an amendment to modify the transportation
permit shall provide sufficient documentation that the original
authorizations have proven inadequate and the reasons for the need to make the
change(s).
3.
Action
on amendment. The general manager shall prepare a notice to be given of the
application for amendment, which notice shall be given as in the original
application, and a hearing conducted in the manner prescribed for permit
issuance.
SECTION
11. FEES AND DEPOSITS FOR WELL PERMITS
AND REGISTRATION
RULE
11.1 FEES
Section
36.205, Water Code, authorizes the District to assess fees for administrative
acts of the District. These fees may
not unreasonably exceed the cost to the District of providing the administrative
function for which the fee is charged. Fees
shall be assessed in accordance with the District Fee Schedule set by the Board.
A copy of the Fee Schedule may be obtained from the District Office.
The Board,
by resolution or order, shall adopt a fee schedule to apply to all applications,
registrations, inspections, and permits that are issued, renewed, or amended as
well as fees for other acts the District performs or fees to cover charges
incurred by the District. These fees
are non-refundable. The fee schedule
shall be adopted as soon as practical after Rules are adopted by the Board, and
the fees shall be effective upon adoption of the schedule.
Production fees shall be based on the amount of groundwater withdrawn.
Production fees for groundwater for which the producer (permittee) can
not provide documentation satisfactory to the District that the groundwater was
used for the purpose designated in the permit shall be assessed at the higher
production fee (i.e., the fee for “any other purpose”), if any.
In addition
to well registration, permit application fees, and other fees, the District
shall impose a reasonable fee or surcharge, established by Board resolution or
order, for transportation of groundwater out of the District and/or production
of groundwater for non-exempt use. Such
transportation fees and production fees shall be set in accordance with the
provisions of Chapter 36 of the Texas Water Code, as amended, and shall be based
on actual groundwater withdrawn.
The District may amend the fee schedule from time to time.
RULE
11.2 DEPOSITS
Each well
registration or application for a well permit must be accompanied by a well
log deposit, and any administrative fee, as set out in the
Deposit and Fee Schedule adopted by the
Board of Directors
. The fees and deposits will be
accepted and deposited by the District staff. The deposit will be returned to
the applicant by the District if: (1) the application is denied; (2) if the
application is granted, upon the receipt of correctly completed driller's log of
the well; or (3) if the permit location is abandoned without having been drilled
or if the drilling results in a dry hole, upon return and surrender of the
permit marked "abandoned" by the applicant.
In
the event that neither the driller's log of the well nor the permit marked
"abandoned" is returned to the District office within six (6) months
after application date of the permit, the deposit becomes the property of the
District.
In
the event the well is abandoned, the hole must be plugged by the applicant of
the permit in accordance with the Texas Water Well Drillers' Rules (see 16 TAC
76.1004 Technical Requirements - Standards for Capping and Plugging of Wells).
Proof of proper closure must be provided by the applicant to the
District, or a satisfactory inspection must be performed by District personnel.
SECTION
12. REWORKING, REPAIRING AND
REPLACING A WELL
RULE
12.1 PROCEDURES
1.
An
existing well may be reworked, re-drilled, repaired, or re-equipped in a manner
that will not change the existing well status.
2.
Any
improvement, alterations, or professional maintenance or repair of a well or
well system requires that the well be re-registered within fourteen (14)
calendar days of completion, and may require that the well be re-permitted.
If the well or well system was in existence at the time the Rules were
adopted by the District, such well must be registered with the District.
If the improvement, alterations, maintenance or repair render the well
non-exempt, such well must be permitted by the District, and application for a
permit must be made by the well owner.
3.
A
permit must be applied for and the board will consider approving the permit, if
a person wishes to increase the rate of production of an existing well to the
point of increasing the size of the column pipe and/or g.p.m. rate by reworking,
re-equipping, or re-drilling such well.
4.
A
permit must be applied for and granted by the board if a person wishes to
replace an existing permitted well with a replacement well.
Immediately upon completion of a replacement permitted well, the old
permitted well shall be:
a.
filled and abandoned in accordance with current Water Well
Driller’s Rules Chapter 76; or
b.
properly equipped in such a manner that it cannot produce more
than 25,000 gallons of water a day.
5.
In
the event the application meets spacing (Rule 6) and production (Rule 7)
requirements, the Board may grant such application without further notice.
6.
An emergency replacement or reworking of a well may be performed,
with notice to the District afterward, so long as there is no change to the rate
or amount of withdrawal. New
driller’s and completion logs must be filed with the district within the same
period of time as the logs are required to be filed with the water well
drillers’ board, and the well must be re-registered within fourteen
(14) calendar days, and may require that the well be re-permitted.
SECTION
13. WELL LOCATION AND COMPLETION
RULE
13.1 RESPONSIBILITY
After
an application for a well permit has been granted, the well, if drilled, must be
drilled within ten (10) yards (30 feet) of the location specified in the permit,
and not elsewhere. If the well should be commenced or drilled at a different
location, the drilling or operation of such well may be enjoined by the Board
pursuant to Chapter 36, Texas Water Code. As described in the Texas Water Well
Drillers' Rules, all well drillers , pump installers and persons having a well drilled, deepened,
or otherwise altered shall adhere to the provisions of the District Rule's
including those prescribing the
location of wells and proper completion.
RULE
13.2 LOCATION OF DOMESTIC, INDUSTRIAL,
INJECTION, AND IRRIGATION WELLS
All
new wells must comply with the spacing and location requirements set forth under
the Texas Water Well Drillers and Pump Installers Administrative Rules, Title
16, Part 4, Chapter 76, Texas Administrative Code, unless a written variance is
granted by the Texas Department of Licensing and Regulation and a copy of the
variance is forwarded to the District by the applicant or registrant.
1.
A
well must be located a minimum horizontal distance of 50 feet
from any water-tight sewage facility and liquid-waste collection facility.
2.
A
well must be located a minimum horizontal distance of not less than 100 feet
from any contamination, such as existing or proposed livestock or poultry yards,
privies, and septic system absorption fields, and must be located in accordance
with any applicable federal, state, county, and/or Texas Water Well Drillers and
Pump Installers rules and regulations.
3.
A
well must be located at a site not generally subject to flooding; provided,
however, that if a well must be placed in a flood prone area, it must be
completed with a watertight sanitary well seal and steel casing extending a
minimum of 24 inches above the 100 Year Flood Plain elevation,
as established by the most recent mapping of the National Flood Insurance
Program.
4.
No
well may be located within five-hundred (500) feet of a sewage treatment plant,
solid waste disposal site, or land irrigated by sewage plant effluent, or within
three-hundred (300) feet of a sewage wet well, sewage pumping station, or a
drainage ditch that contains industrial waste discharges or wastes from sewage
treatment systems.
RULE
13.3 STANDARDS OF COMPLETION FOR DOMESTIC,
INDUSTRIAL, INJECTION, AND
IRRIGATION WELLS
1.
All wells must be completed in accordance with the well completion
standards set forth under the Texas Water Well Drillers and Pump Installers
Administrative Rules, Title 16, Part 4, Chapter 76, Texas Administrative Code.
Water well drillers and pump installers are subject to and must comply with all
the District Rules of the Fayette County Groundwater Conservation District.
2.
Water well drillers shall indicate the method of completion
performed on the Well Report (TDLR Form #001 WWD, Section 10, Surface
Completion).
RULE
13.4 RE-COMPLETIONS
1.
The
landowner shall have the continuing responsibility of insuring that a well does
not allow commingling of undesirable water and fresh water or the unwanted loss
of water through the wellbore to other porous strata.
2.
If
a well is allowing the commingling of undesirable water and fresh water or the
unwanted loss of water, and the casing in the well cannot be removed and the
well re-completed within the applicable rules, the casing in the well shall be
perforated and cemented in a manner that will prevent the commingling or loss of
water. If such a well has no casing, then the well shall be cased and cemented,
or plugged in a manner that will prevent such commingling or loss of water.
3.
The
Board
of Directors
may direct the landowner to take steps to prevent the commingling of undesirable
water and fresh water, or the unwanted loss of water or pollution through the
well bore.
SECTION 14. HEARINGS
RULE 14.1 TYPES OF HEARINGS
The
District conducts two general types of hearings: hearings involving permit
matters, in which the rights, duties, or privileges of a party are determined
after an opportunity for an adjudicative hearing, and rulemaking or other
hearings involving matters of general applicability that implement, interpret,
or prescribe the law or District policy, or that describe the procedure or
practice requirements of the District. Any matter designated for hearing before
the Board involving a permit matter may be referred by the Board for hearing
before a Hearing Examiner.
1.
Permit
Hearings:
a.
Permit
Applications, Amendments and Revocations:
The District will hold hearings on water well operating permits, permit renewals
or amendments (except those amendments defined as “minor” in Rule 9.8) and
permit revocations or suspensions. Hearings
involving permit matters may be scheduled before a Hearing Examiner.
b.
Hearings
on Motions for Rehearing:
Motions for Rehearing will be heard by the Board pursuant to Rule 14.8(b).
2.
Rule-making
and Other Hearings:
a.
District
Rules or District Management Plan:
At its discretion, the Board may hold a hearing to consider adoption of amended
or new District Rules, or an amended or new District Management Plan.
b.
Other
Matters:
A public hearing may be held on any matter within the jurisdiction of the Board,
if the Board deems a hearing to be in the public interest, or necessary to
effectively carry out the duties and responsibilities of the District.
RULE 14.2 NOTICE AND SCHEDULING OF HEARINGS
The
District, by its General Manager, as instructed by the Board, is responsible for
giving notice of all hearings in the following manner:
1.
Notice
will be given to each person who requests copies of hearing notices pursuant to
the procedures set forth in subsection (2), and any other person the
Board
of Directors
deems appropriate. The date of mailing of notice or of delivery may not be less
than ten (10) calendar days before the date set for the hearing.
a.
If
the hearing is to be held during the District's regular business hours, notice
of the hearing must be posted in accordance with the Texas Open Meetings Act by
posting on the Courthouse Bulletin Board. If
the hearing is to be held as part of the Board’s regular business meeting, the
hearing must be listed as a separate item on the meeting agenda.
b.
If
the hearing is not to be held during the District's regular business hours,
notice of hearing will be published at least once in a newspaper of general
circulation in the District. The date of publication may not be less than ten
(10) calendar days before the date set for the hearing.
c.
A
copy of the notice will be posted at the county courthouse in the place where
notices are usually posted, in accordance with the Texas Open Meetings Act.
d.
In
addition to the notices required above, when a hearing involves an operating
permit matter, notice of the date, time, and location of the hearing will be
given to the applicant by depositing the notice in the United States Postal
Service mail in an envelope or wrapper addressed to the applicant and stamped,
or by delivery to the applicant, at least ten (10) calendar days before the day
of the hearing.
e.
In
addition to the notice required above, when a hearing involves designation of a
Critical Groundwater Depletion Area, a copy of the notice must be provided to
each landowner, well owner, well operator and known groundwater right holder in
the proposed management area, or notice of hearing must be published at least
once in a newspaper of general circulation in the District, describing the
proposed management area in such a way that each landowner, well owner, well
operator and known groundwater right holder in the proposed management area can
recognize their inclusion.
2.
Any
person having an interest in the subject matter of a specific hearing or
specific hearings may receive written notice of such hearing or hearings by
submitting to the District a request in writing. The request must identify with
as much specificity as possible the hearing or hearings concerning a specific or
individual matter for which written notice is requested. The request remains
valid for a period of one year from the date of the request, after which time a
new request must be submitted. Failure
to provide written notice under this section does not invalidate or have any
effect on any action taken by the Board.
3.
Hearings
may be scheduled during the District's regular business hours, Monday through
Friday of each week, except on District holidays. All
permit hearings will be held at the District Office or an alternative site
designated by the District’s Board of Directors. However,
the Board may from time to time change or schedule additional dates, times, and
places for permit hearings by resolution adopted at a regular Board meeting. The
General Manager is instructed by the Board to schedule hearings involving permit
matters at such dates, times, and places set forth above for permit hearings.
Other hearings will be scheduled at the dates, times and locations set at a
regular Board meeting.
4.
In
the event that a hearing is scheduled, either outside of the District’s
regular business hours or in a place that is not the District’s office, the
District may require that the person requesting the hearing pay 45% of the costs
of holding the hearing, and the District will pay the remaining 55%.
RULE 14.3 GENERAL PROCEDURES
1.
the
particular case, and technical rules of legal and court procedure need not be
applied. It
is the purpose of the Board to obtain all the relevant and reliable information
and testimony pertaining to the issue before it as conveniently, inexpensively,
and speedily as possible without prejudicing the rights of either applicants or
protestants.
2.
Authority
of Presiding Officer:
The presiding officer may conduct the hearing or other proceeding in the manner
the presiding officer deems most appropriate for the particular proceeding. The
presiding officer has the authority to:
a.
set
hearing dates, other than the initial hearing date for permit matters set by the
District, by its General Manager as instructed by the Board, in accordance with
Rule 14.2(c);
b.
convene
the hearing at the time and place specified in the notice for public hearing;
c.
establish
the jurisdiction of the District concerning the subject matter under
consideration;
d.
rule
on motions and on the admissibility of evidence and amendments to pleadings;
e.
designate
and align parties and establish the order for presentation of evidence;
f.
administer
oaths to all persons presenting testimony;
g.
examine
witnesses;
h.
issue
subpoenas when required to compel the attendance of witnesses or the production
of papers and documents;
i.
require
the taking of depositions and compel other forms of discovery under these Rules;
j.
ensure
that information and testimony are introduced as conveniently and expeditiously
as possible, without prejudicing the rights of any party to the proceeding;
k.
conduct
public hearings in an orderly manner in accordance with these Rules;
l.
recess
any hearing from time to time and place to place;
m.
reopen
the record of a hearing for additional evidence when necessary to make the
record more complete; and
n.
exercise
any other appropriate powers necessary or convenient to effectively carry out
the responsibilities of presiding officer.
3.
Hearing
Registration Forms:
Each individual attending a hearing or other proceeding of the District must
submit a form providing the following information: full name; street address;
telephone number; whether the person plans to testify; and any other information
relevant to the hearing or other proceeding.
4.
Appearance;
Representative Capacity:
Any interested person may appear in person or may be represented by counsel, or
accompanied by an engineer, or other representative provided the representative
is fully authorized to speak and act for the principal. Such person or
representative may present evidence, exhibits, or testimony, or make an oral
presentation in accordance with the procedures applicable to the particular
proceeding. Any partner may appear on behalf of the partnership. A duly
authorized officer or agent of a public or private corporation, political
subdivision, governmental agency, municipality, association, firm, or other
entity may appear for the entity. A fiduciary may appear for a ward, trust, or
estate. A person appearing in a representative capacity may be required to prove
proper authority.
5.
Alignment
of Parties; Number of Representatives Heard:
Participants in a proceeding may be aligned according to the nature of the
proceeding and their relationship to it. The presiding officer may require the
participants of an aligned class to select one or more persons to represent or
speak for them in the proceeding or on any particular matter or ruling and may
limit the number of representatives heard, but must allow at least one
representative of an aligned class to be heard in the proceeding or on any
particular matter or ruling.
6.
Appearance
by Applicant or Movant:
The applicant, movant or party requesting the hearing or other proceeding or a
representative must be present at the hearing or other proceeding. Failure
to so appear may be grounds for withholding consideration of a matter and
dismissal without prejudice or may require the rescheduling or continuance of
the hearing or other proceeding if the presiding officer deems it necessary in
order to fully develop the record.
7.
Reporting:
Hearings and other proceedings will be recorded on audio cassette tape or, at
the discretion of the presiding officer, may be recorded by a certified
shorthand reporter. The District does not prepare transcripts of hearings or
other proceedings recorded on audio cassette tape on District equipment for the
public, but the District will arrange access to the recording. Subject to
availability of space, any party to a specific hearing may, at their own
expense, arrange for a reporter to report the hearing or other proceeding or for
recording of the hearing or other proceeding. The cost of reporting or
transcribing a permit hearing may be assessed in accordance with Rule 14.5(b).
If a proceeding other than a permit hearing is recorded by a certified shorthand
reporter, and a copy of a written transcript of testimony is ordered by any
person, the testimony will be transcribed by the certified shorthand reporter
and the original written transcript filed with the papers of the proceeding at
the expense of the person requesting the transcript of testimony. Copies of the
transcript of testimony of any hearing or other proceeding thus reported may be
purchased thereafter from the reporter by the person requesting the copy.
8.
Continuance:
The presiding officer may continue hearings or other proceedings from time to
time and from place to place without the necessity of publishing, serving,
mailing or otherwise issuing a new notice. If a hearing or other proceeding is
continued and a time and place (other than the District Office) for the hearing
or other proceeding to reconvene are not publicly announced at the hearing or
other proceeding by the presiding officer before it is recessed, a notice of any
further setting of the hearing or other proceeding will be delivered at a
reasonable time to all parties, persons who have requested notice of the hearing
pursuant to Rule 14.2(b), and any other person the presiding officer deems
appropriate, but it is not necessary or required to post at the county
courthouse or publish a newspaper notice of the new setting.
9.
Filing
of Documents; Time Limit:
Applications, motions, exceptions, communications, requests, briefs or other
papers and documents required to be filed under these Rules or by law must be
received in hand at the District's Office within the time limit, if any, set by
these Rules or by the presiding officer for filing. Mailing by deposit with the
United States Postal Service within the time period is insufficient if the
submissions are not actually received by the District within the time limit.
10.
Computing
Time:
In computing any period of time prescribed, allowed, or specified by these
Rules, by a presiding officer, by Board orders, or by applicable law, the day of
the act, event, or default after which the designated period of time begins to
run is not included, but the last day of the period so computed is included,
unless the last day is a Saturday, Sunday or legal holiday as determined by the
Board, in which case the period runs until the end of the next day which is
neither a Saturday, Sunday nor a legal holiday as determined by the Board.
11.
Affidavit:
Whenever the making of an affidavit by a party to a hearing or other proceeding
is necessary, it may be made by the party or the party's representative or
counsel. This Rule does not dispense with the necessity of an affidavit being
made by a party when expressly required by statute.
12.
Broadening
the Issues:
No person will be allowed to appear in any hearing or other proceeding that in
the opinion of the presiding officer is for the sole purpose of unduly
broadening the issues to be considered in the hearing or other proceeding.
13.
Conduct
and Decorum:
Every person, party, representative, witness, and other participant in a
proceeding must conform to ethical standards of conduct and must exhibit
courtesy and respect for all other participants. No person may engage in any
activity during a proceeding that interferes with the orderly conduct of
District business. If in the judgment of the presiding officer, a person is
acting in violation of this provision, the presiding officer will first warn the
person to refrain from engaging in such conduct. Upon further violation by the
same person, the presiding officer may exclude that person from the proceeding
for such time and under such conditions as the presiding officer deems
necessary.
RULE 14.4 UNCONTESTED PERMIT HEARINGS
PROCEDURES
1.
Written
Notice of Intent to Contest:
Any person who intends to contest a permit application must provide written
notice of that intent to the District at the District office located at 254
North
Jefferson
,
Room 600,
P.
O. Box 625
,
La
Grange
,
TX
78945
at least five (5) calendar days prior to the date of the hearing. If the
Board
of Directors
intends to contest a permit application, the
Board
of Directors
must provide the applicant written notice of that intent at least five (5)
calendar days prior to the date of the hearing. If no notice of intent to
contest is received five (5) calendar days prior to the hearing, the general
manager as instructed by the
Board
of Directors
,
will cancel the hearing, or, at a minimum, that
specific hearing agenda item, and the board will consider the permit at the next
regular board meeting.
2.
Informal
Hearings:
Permit hearings may be conducted informally when, in the judgment of the Hearing
Examiner, the conduct of a proceeding under informal procedures will not
prejudice the rights of any party and will save time or cost to the parties, or
lead to a negotiated or agreed settlement of facts or issues in controversy.
3.
Agreement
of Parties:
If, during an informal proceeding, all parties reach a negotiated or agreed
settlement which, in the judgment of the Hearing Examiner, settles the facts or
issues in controversy, the proceeding will be considered an uncontested case and
the Hearing Examiner will summarize the evidence, make findings of fact and
conclusions of law based on the existing record and any other evidence submitted
by the parties at the hearing.
4.
Decision
to Proceed as Uncontested or Contested Case:
If the parties do not reach a negotiated or agreed settlement of the facts and
issues in controversy or if any party contests a staff recommendation, and the
Hearing Examiner determines these issues will require extensive discovery
proceedings, the Hearing Examiner will declare the case to be contested and
convene a prehearing conference as set forth in Rule 14.5. The Hearing Examiner
may also recommend issuance of a temporary permit for a period not to exceed 4
months, with any special provisions the Hearing Examiner deems necessary, for
the purpose of completing the contested case process. Any case not declared a
contested case under this provision is an uncontested case and the Hearing
Examiner will summarize the evidence, make findings of fact and conclusions of
law, and make appropriate recommendations to the Board.
RULE 14.5 CONTESTED PERMIT HEARINGS
PROCEDURES
1.
Prehearing
Conference:
A prehearing conference may be held to consider any matter which may expedite
the hearing or otherwise facilitate the hearing process.
a.
Matters
Considered:
Matters which may be considered at a prehearing conference include, but are not
limited to, (1) the designation of parties; (2) the formulation and
simplification of issues; (3) the necessity or desirability of amending
applications or other pleadings; (4) the possibility of making admissions or
stipulations; (5) the scheduling of discovery; (6) the identification of and
specification of the number of witnesses; (7) the filing and exchange of
prepared testimony and exhibits; and (8) the procedure at the hearing.
b.
Notice:
A prehearing conference may be held at a date, time, and place stated in a
separate notice given in accordance with Rule 14.2, or at the date, time, and
place for hearing stated in the notice of public hearing, and may be continued
from time to time and place to place, at the discretion of the Hearing Examiner.
c.
Conference
Action:
Action taken at a prehearing conference may be reduced to writing and made a
part of the record or may be stated on the record at the close of the
conference.
2.
Assessing
Reporting and Transcription Costs:
Upon the timely request of any party, or at the discretion of the Hearing
Examiner, the Hearing Examiner may assess reporting and transcription costs to
one or more of the parties. The Hearing Examiner must consider the following
factors in assessing reporting and transcription costs:
a.
the
party who requested the transcript;
b.
the
financial ability of the party to pay the costs;
c.
the
extent to which the party participated in the hearing;
d.
the
relative benefits to the various parties of having a transcript;
e.
the
budgetary constraints of a governmental entity participating in the proceeding;
f.
any
other factor that is relevant to a just and reasonable assessment of costs.
In any proceeding where the assessment of reporting or transcription costs is an
issue, the Hearing Examiner must provide the parties an opportunity to present
evidence and argument on the issue. A recommendation regarding the assessment of
costs must be included in the Hearing Examiner's report to the Board.
3.
Designation
of Parties:
Parties to a hearing will be designated on the first day of hearing or at
such other time as the Hearing Examiner determines. The
Board
of Directors
and any person specifically named in a matter are automatically designated
parties. Persons other than the automatic parties must, in order to be admitted
as a party, appear at the proceeding in person or by representative and seek to
be designated. After parties are designated, no other person may be admitted as
a party unless, in the judgment of the Hearing Examiner, there exists good cause
and the hearing will not be unreasonably delayed.
4.
Rights
of Designated Parties:
Subject to the direction and orders of the Hearing Examiner, parties have
the right to conduct discovery, present a direct case, cross-examine witnesses,
make oral and written arguments, obtain copies of all documents filed in the
proceeding, receive copies of all notices issued by the District concerning the
proceeding, and otherwise fully participate in the proceeding.
5.
Persons
Not Designated Parties:
At the discretion of the Hearing Examiner, persons not designated as parties
to a proceeding may submit comments or statements, orally or in writing.
Comments or statements submitted by non-parties may be included in the record,
but may not be considered by the Hearing Examiner as evidence.
6.
Furnishing
Copies of Pleadings:
After parties have been designated, a copy of every document including a
pleading, request, motion, or reply filed in the proceeding must be provided by
the person who signs the document, or the author or the person who files the
document with the District, to every other party or the party's representative.
A certification of this fact must accompany the original instrument when filed
with the District. Failure to provide copies may be grounds for withholding
consideration of the pleading or the matters set forth therein.
7.
Interpreters
for Deaf Parties and Witnesses:
If a party or subpoenaed witness in a contested case is deaf, the District must
provide an interpreter whose qualifications are approved by the State Commission
for the Deaf and Hearing Impaired to interpret the proceedings for that person.
"Deaf person" means a person who has a hearing impairment, whether or
not the person also has a speech impairment, that inhibits the person's
comprehension of the proceedings or communication with others.
8.
Agreements
to be in Writing:
No agreement between parties or their representatives affecting any pending
matter will be considered by the Hearing Examiner unless it is in writing,
signed, and filed as part of the record, or unless it is announced at the
hearing and entered as record.
9.
Discovery:
Discovery will be conducted upon such terms and conditions, and at such
times and places, as directed by the Hearing Examiner. Unless specifically
modified by these Rules or by order of the Hearing Examiner, discovery will be
governed by, and subject to the limitations set forth in, the Texas Rules of
Civil Procedure. In addition to the forms of discovery authorized under the
Texas Rules of Civil Procedure, the parties may exchange informal requests for
information, either by agreement or by order of the Hearing Examiner.
10.
Discovery
Sanctions:
If the Hearing Examiner finds a party is abusing the discovery process in
seeking, responding to, or resisting discovery, the Hearing Examiner may:
a.
suspend
processing of the application for a permit if the applicant is the offending
party;
b.
disallow
any further discovery of any kind or a particular kind by the offending party;
c.
rule
that particular facts be regarded as established against the offending party for
the purposes of the proceeding, in accordance with the claim of the party
obtaining the discovery ruling;
d.
limit
the offending party's participation in the proceeding;
e.
disallow
the offending party's presentation of evidence on issues that were the subject
of the discovery request; and
f.
recommend
to the Board that the hearing be dismissed with or without prejudice.
11.
Ex
Parte Communications:
The Hearing Examiner may not communicate, directly or indirectly, in
connection with any issue of fact or law pending for decision before the Hearing
Examiner, with any agency, person, party, or their representatives, except on
notice and opportunity for all parties to participate. This provision does not
prevent communications with District staff not directly involved in the hearing
to utilize the special skills and knowledge of the District in evaluating the
evidence.
12.
Compelling
Testimony; Swearing Witnesses and Subpoena Power:
The Hearing Examiner may compel the testimony of any person which is
necessary, helpful, or appropriate to the hearing. The Hearing Examiner will
administer the oath in a manner calculated to impress the witness with the
importance and solemnity of the promise to adhere to the truth. The Hearing
Examiner may issue subpoenas to compel the testimony of any person and the
production of books, papers, documents, or tangible things, in the manner
provided in the Texas Rules of Civil Procedure.
13.
Evidence:
Except as modified by these Rules, the Texas Rules of Civil Evidence govern
the admissibility and introduction of evidence; however, evidence not admissible
under the Texas Rules of Civil Evidence may be admitted if it is of the type
commonly relied upon by reasonably prudent persons in the conduct of their
affairs. In addition, evidence may be stipulated by agreement of all parties.
14.
Written
Testimony:
When a proceeding will be expedited and the interest and rights of the parties
will not be prejudiced, testimony may be received in written form. The written
testimony of a witness, either in narrative or question and answer form, may be
admitted into evidence upon the witness being sworn and identifying the
testimony as a true and accurate record of what the testimony would be if given
orally. The witness will be subject to clarifying questions and to
cross-examination, and the prepared testimony will be subject to objection.
15.
Requirements
for Exhibits:
Exhibits of a documentary character must be sized to not unduly encumber the
files and records of the District. All exhibits must be numbered and, except for
maps and drawings, and except for good cause shown, may not exceed 8-1/2 by 11
inches in size.
16.
Abstracts
of Documents:
When documents are numerous, the Hearing Examiner may receive in evidence only
those which are representative and may require the abstracting of relevant data
from the documents and the presentation of the abstracts in the form of an
exhibit. Parties have the right to examine the documents from which the
abstracts are made.
17.
Introduction
and Copies of Exhibits:
Each exhibit offered must be tendered for identification and placed in the
record. Copies must be furnished to the Hearing Examiner and to each of the
parties, unless the Hearing Examiner rules otherwise.
18.
Excluding
Exhibits:
In the event an exhibit has been identified, objected to, and excluded, it
may be withdrawn by the offering party. If withdrawn, the exhibit will be
returned and the offering party waives all objections to the exclusion of the
exhibit. If not withdrawn, the exhibit will be included in the record for the
purpose of preserving the objection to excluding the exhibit.
19.
Official
Notice:
The Hearing Examiner may take official notice of all facts judicially
cognizable. In addition, official notice may be taken of generally recognized
facts within the area of the District's specialized knowledge.
20.
Documents
in District Files:
Extrinsic evidence of authenticity is not required as a condition precedent
to admissibility of documents maintained in the files and records of the
District.
21.
Oral
Argument:
At the discretion of the Hearing Examiner, oral arguments may be heard at the
conclusion of the presentation of evidence. Reasonable time limits may be
prescribed. The Hearing Examiner may require or accept written briefs in lieu
of, or in addition to, oral arguments. When the matter is presented to the Board
for final decision, further oral arguments may be heard by the Board.
RULE 14.6 CONCLUSION OF THE HEARING; REPORT
1.
Closing
the Record; Final Report:
At the conclusion of the presentation of evidence and any oral argument, the
Hearing Examiner may either close the record or keep it open and allow the
submission of additional evidence, exhibits, briefs, or proposed findings and
conclusions from one or more of the parties. No additional evidence, exhibits,
briefs, or proposed findings and conclusions may be filed unless permitted or
requested by the Hearing Examiner. After the record is closed, the Hearing
Examiner will prepare a report to the Board. The report must include a summary
of the evidence, together with the Hearing Examiner's findings and conclusions
and recommendations for action. Upon completion and issuance of the Hearing
Examiner's report, a copy must be submitted to the Board and delivered to each
party to the proceeding. In a contested case, delivery to the parties must be by
certified mail.
In the case of an uncontested hearing, the official
minutes of the hearing shall suffice as the Final Report.
2.
Exceptions
to the Hearing Examiner's Report; Reopening the Record:
Prior to Board action any party in a contested case may file written exceptions
to the Hearing Examiner's report, and any party in an uncontested case may
request an opportunity to make an oral presentation of exceptions to the Board.
Upon review of the report and written exceptions, the Hearing Examiner may
reopen the record for the purpose of developing additional evidence, or may deny
the written exceptions and submit the report and written exceptions to the
Board. The Board may, at any time and in any case, remand the matter to the
Hearing Examiner for further proceedings.
3.
Time
for Board Action on Certain Permit Matters:
In the case of hearings involving new permit applications, original applications
for existing wells, or applications for permit renewals or amendments, the
Hearing Examiner's report should be submitted, and the Board should act, within
sixty (60) calendar days after the close of the hearing record.
RULE 14.7 RULEMAKING HEARINGS PROCEDURES
1.
General
Procedures:
The presiding officer will conduct the rulemaking or other hearing in the manner
the presiding officer deems most appropriate to obtain all relevant information
pertaining to the subject of the hearing as conveniently, inexpensively, and
expeditiously as possible. The presiding officer may follow the guidelines of
"Robert's Rules of Order”, Henry M. Robert III, 10th revised edition, or
as amended.
2.
Submission
of Documents:
Any interested person may submit written statements, protests or comments,
briefs, affidavits, exhibits, technical reports, or other documents relating to
the subject of the rulemaking or other hearing. Such documents must be submitted
no later than the time of the public hearing, as stated in the notice of public
hearing. Such
notice is to be published at least once in a newspaper of general circulation in
the District, and is to be published at least ten (10) calendar days before the
date of the hearing.
3.
Oral
Presentations:
Any person desiring to speak or testify on the subject of the rulemaking or
other hearing must so indicate on the registration form provided at the hearing.
The presiding officer establishes the order of testimony and may limit the
number of times a person may speak, the length of time for oral presentations,
and the time period for raising questions. In addition, the presiding officer
may limit or exclude cumulative, irrelevant, or unduly repetitious
presentations.
4.
Conclusion
of the Hearing; Closing the Record; Hearing Examiner's Report:
At the conclusion of the testimony, and after the receipt of all documents, the
presiding officer may either close the record, or keep it open to allow the
submission of additional information. If the presiding officer is a Hearing
Examiner, the Hearing Examiner must, after the record is closed, prepare a
report to the Board. The report must include a summary of the subject of the
hearing and the public comments received, together with the Hearing Examiner's
recommendations for action. Upon completion and issuance of the Hearing
Examiner's report, a copy must be submitted to the Board. Any interested person
who so requests in writing will be notified when the report is completed, and
furnished a copy of the report.
5.
Exceptions
to the Hearing Examiner's Report; Reopening the Record:
Any interested person may make exceptions to the Hearing Examiner's report, and
the Board may reopen the record, in the manner prescribed in Rule 14.6(b).
RULE 14.8 FINAL DECISION; APPEAL
1.
Board
Action:
After the record is closed and the matter is submitted to the Board, the Board
may then take the matter under advisement, continue it from day to day, reopen
or rest the matter, refuse the action sought or grant the same in whole or part,
or take any other appropriate action. The Board action takes effect at the
conclusion of the meeting and is not affected by a motion for rehearing.
1.
Decision; When Final: A
decision by the board on a permit or permit amendment application is final if
(1) a request for rehearing is not filed on time, on the expiration of the
period for filing a request for rehearing; or (2) if a request for rehearing is
filed on time, on the date the board denies the request for rehearing or the
board renders a written decision after rehearing.
Except as provided by Subsection (3), an applicant or a party to a
contested hearing may file a suit against the district under Section 36.251 to
appeal a decision on a permit or permit amendment application not later than the
60th day after the date on which the decision becomes final.
1.
Decision; When Final: A
decision by the board on a permit or permit amendment application is final if
(1) a request for rehearing is not filed on time, on the expiration of the
period for filing a request for rehearing; or (2) if a request for rehearing is
filed on time, on the date the board denies the request for rehearing or the
board renders a written decision after rehearing.
Except as provided by Subsection (3), an applicant or a party to a
contested hearing may file a suit against the district under Section 36.251 to
appeal a decision on a permit or permit amendment application not later than the
60th day after the date on which the decision becomes final.
2.
Requests for Rehearing: Any decision of the Board on a permit or permit amendment
application matter may be appealed by an applicant in a contested or uncontested
hearing on an application or a party to a contested hearing by requesting
written findings and conclusions or a rehearing before the Board within twenty
(20) calendar days of the Board's decision.
a.
Such a rehearing request must be filed at the District Office in
writing and must state clear and concise grounds for the request. If
the original hearing was a contested hearing, the person requesting a rehearing
must provide copies of the request to all parties to the hearing.
Such a rehearing request is mandatory with respect to any decision or
action of the Board before any appeal may be brought.
b.
On receipt of a timely written request, the board shall make
written findings and conclusions regarding a decision of the board on a permit
or permit amendment application. The board shall provide certified copies of the
findings and conclusions to the person who requested them, and to each person
who provided comments or each designated party, not later than the 35th day
after the date the board receives the request. A person who receives a certified
copy of the findings and conclusions from the board may request a rehearing
before the board not later than the 20th day after the date the board issues the
findings and conclusions.
c.
The Board's decision is final if no request for rehearing is made
within the specified time, or upon the Board's denial of the request for
rehearing, or upon rendering a decision after rehearing. If
the rehearing request is granted by the Board, the date of the rehearing will be
within forty-five (45) calendar days thereafter, unless otherwise agreed to by
the parties to the proceeding. The failure of the Board to grant or deny the
request for rehearing within ninety (90) calendar days of submission will be
deemed to be a denial of the request.
3.
In
appropriate situations, the District may utilize alternate methods of dispute
resolution, which are described in Sections 36.416 through 36.418, Texas Water
Code.
1.
Except as provided by Subsection (2), the District shall process
applications from a single applicant under consolidated notice and hearing
procedures on written request by the applicant if the
District requires a separate permit or permit amendment application
for:
a.
drilling, equipping, operating, or completing a well or
substantially altering the size of a well or well pump under Section 36.113;
b.
the spacing of water wells or the production of groundwater
under Section 36.116; or
c.
transferring groundwater out of a district under Section 36.122.
2.
The District is not required to use consolidated notice and
hearing procedures to process separate permit or permit amendment applications
from a single applicant if the board cannot adequately evaluate one
application until it has acted on another application.
SECTION 15. INVESTIGATIONS AND ENFORCEMENT
RULE 15.1 NOTICE AND ACCESS TO PROPERTY
Board
Members and District agents and employees are entitled to access to all property
within the District at any reasonable time to carry out technical and other
investigations necessary to the implementation of the District Rules or for the
purpose of inspecting and investigating conditions relating to the quality of
water in the State or the compliance with any rule, regulation, permit or other
order of the District. Prior to entering upon property for the purpose of
conducting an investigation, the person seeking access must first make a
reasonable attempt to give notice in writing or in person or by telephone to the
owner, lessee, or operator, agent, or employee of the well owner or lessee
before entering a property.
Information contained in any application or other information on file
with the District may be used to contact a person concerning entry upon the
property. Notice is not required if prior permission is granted to enter without
notice. Inhibiting or prohibiting access to any Board Member or District agents
or employees who are attempting to conduct an investigation under the District
Rules constitutes a violation and subjects the person who is inhibiting or
prohibiting access, as well as any other person who authorizes or allows such
action, to the penalties set forth in the Texas Water Code Chapter 36.102.
RULE 15.2 CONDUCT OF INVESTIGATION
Investigations
or inspections that require entrance upon property must be conducted at
reasonable times, and must be consistent with the establishment's rules and
regulations concerning safety, internal security, and fire protection. The
persons conducting such investigations must identify themselves and present
credentials upon request of the owner, lessee, operator, or person in charge of
the well.
RULE 15.3 RULE ENFORCEMENT
If
it appears that a person has violated, is violating, or is threatening to
violate any provision of the District Rules or of any regulation, permit, or
other order of the District, the Board of Directors may institute and conduct a
suit in the name of the District for enforcement of rules through the provisions
of Chapter 36.102 Texas Water Code.
RULE 15.4
EXCEPTION
TO DISTRICT RULES
1.
In order to accomplish the purpose set forth in these Rules, the
Board may grant exceptions to Rules of the District. This Rule, and all other
Rules of the District, shall not be construed so as to limit the discretionary
power of the Board, and the powers stated are cumulative of all other powers
possessed by the Board.
2.
Procedure:
a.
Any person, firm, corporation, association of persons, or other
entity desiring an exception to any Rule shall file a written application with
the District office stating:
i.
The nature of the exception requested;
ii.
The justification for granting the exception;
iii.
Any information that the applicant deems appropriate in support of
the application for an exception; and
iv.
A waiver signed by each landowner whose property borders that of
the applicant.
b.
Six copies of any application for an exception shall be submitted
to the District at its general office.
c.
All applications for exceptions shall be heard and considered by
the Board meeting in regular or special session, within ninety (90) calendar
days after submittal. At least ten (10) calendar days notice of the hearing
shall be given to the applicant, to known interested parties, including
governmental agencies having potential concurrent jurisdiction, and notice shall
also be given to the public by appropriate notice as set forth in Rule 14.2, at
least ten calendar (10) days before the date of the hearing.
d.
The Board shall enter an order granting or denying an application
for exception, with such conditions as it shall deem proper within sixty
calendar days (60) after the close of such hearing.
e.
Any hearing held hereunder shall be open to the public.
f.
At the hearing the applicant and other interested parties, state
or federal agencies or officials, will be given the opportunity to present
evidence.
g.
The decision of the Board shall be based upon the evidence
submitted at the hearing, on facts of which the Board may take judicial notice,
and on statements and arguments.
3.
If all such interested parties execute a waiver in writing stating
that they do not object to the granting of such exception, the Board may
thereupon proceed to decide upon the granting or refusing of such application
without notice or hearing except to the applicant. The
applicant may also waive notice or hearing, or both.
4.
After a public hearing at which all interested parties may appear
and be heard, and after the Board has decided that an exception should be
granted, such exception may be granted ten (10) calendar days after written
notice has been given to the applicant and all interested parties.
5.
The orders of the Board in any non-contested application or proceeding shall
become the final Order of the Board. The
Orders of the Board in contested applications, appeals or other proceedings
shall contain a statement that same was contested. In all events, the Order will
become final after fifteen (15) calendar days from the entry thereof and be
binding on the parties thereto unless a motion for rehearing is filed.
RULE 15.5 PENALTY FOR VIOLATING RULES, PERMIT
CONDITION, OR BOARD ORDERS
Section 36.102, Texas Water Code, as
amended, authorizes the District to assess reasonable civil penalties for breach
of any Rule of the District. The civil penalty for breach or violation of a Rule
of the District, of a permit term or condition or breach or violation of an
order of the board is up to $10,000 per violation per day for each day the
violation continues, as provided by and allowed by Section 36.102, Water Code.
The schedule for fees, fines and penalties will be set and adopted by the
Board of Directors.
RULE 15.6 SEALING OF WELLS
1.
The
District may, upon orders from the judge of the courts, seal wells that are
prohibited by the District Rules from withdrawing groundwater within the
District to ensure that a well is not operated in violation of the District
Rules. A well may be sealed when: (1) no application has been made for a permit
to drill a new water well which is not exempted; or (2) no application has been
made for an operating permit to withdraw groundwater from an existing
well that is not exempted from the requirement that a permit be obtained in
order to lawfully withdraw groundwater; or (3) the Board has denied, canceled or
revoked an operating permit.
2.
The
well may be sealed by physical means, and tagged to indicate that the well has
been sealed by the District, and other appropriate action may be taken as
necessary to preclude operation of the well or to identify unauthorized
operation of the well.
3.
The
action or actions of tampering with, altering, damaging, or removing the seal of
a sealed well, or in any other way violating the integrity of the seal, or
pumping of groundwater from a well that has been sealed constitutes a violation
of these Rules and subjects the person performing such action(s), as well as any
well owner or primary operator who does not prevent such action(s) or who
authorizes or allows such action(s), to such penalties as provided by the
District Rules.
RULE
15.7 ADVERSE IMPACT MITIGATION
1.
In
the event that a permitted well owner’s withdrawal of groundwater unreasonably
affects existing groundwater and surface water resources or existing registered
or permitted wells, the District may, on its own motion or on the motion of an
existing registered or permitted water well owner, reconsider the conditions of
said permit.
2.
The
Board may also consider any complaints received in writing concerning negative
impacts of any wells upon an existing registered or permitted water well within
the District. The
Board shall consider all registered or permitted wells in the area when
assessing the complaint.
3.
Any
complaints filed by registered or permitted water well owners complaining about
unreasonable effects by another water well owner shall indicate the amount of
expense incurred, when the negative impact occurred, and shall be accompanied by
either actual invoices or by written estimates from a licensed water well
driller, pump installer, or certified engineer.
4.
The
Board of Directors of the District, at a regular or specially called board
meeting, shall consider existing water well owners’ effect on existing
groundwater and surface water resources or existing registered or permitted
water well owners.
5.
The
Board may request the water well owner who is negatively impacting an existing
registered or permitted water well owner to enter into discussions or formal
mediation to address the negative impact, including financial compensation to
the affected existing well owner(s).
In the absence of an agreed upon recommendation between a water well
owner that unreasonably affects an existing registered or permitted water well
owner, and the affected well owner (for example, a mitigation contract or plan),
the Board may on its own motion revise or revoke the permit or otherwise impose
pumping restrictions or conditions, and/or civil penalties upon the well owner
adversely affecting existing registered or permitted water wells, as necessary,
to address adverse impacts.
SECTION 16. CRITICAL GROUNDWATER DEPLETION AREA
RULE 16.1
IDENTIFICATION
OF A CRITICAL GROUNDWATER DEPLETION AREA
The District
periodically reviews the water level data obtained from its various water level
monitoring programs across the District. If
evidence of drawdown of the water table or reduction of artesian pressure in
groundwater or in an area of an aquifer indicates a groundwater or an aquifer
mining situation, that is, a non-sustainable yield, and/or in consideration of
such local climate indicators such as the Palmer Hydrological Drought Severity
Index published by the National Oceanic and Atmospheric Administration (NOAA),
the Board may declare the area a Critical Groundwater Depletion Area (CGDA).
Prior to establishing a CGDA the District will invite comment and
exchange groundwater and aquifer amount and condition data from well owners
within the proposed CGDA. Following
the foregoing collaboration study, a public hearing will be held prior to
declaration of a CGDA. A CGDA will
be classified into one of three categories:
1.
A Category One classification
will be assigned to an area experiencing critical depletion of groundwater due
to climatic events where the ability of the aquifer to provide sustainable
yields at normal usage rates is seriously impaired.
The duration and severity of the climatic conditions will determine the
extent and period of the conservation actions taken by the District.
Upon return of normal climatic conditions and adequate recharge to bring
the aquifer back to sustainable normal usage, the District will cancel the CGDA.
2.
A Category Two classification
will be assigned to an area experiencing critical depletion due to pumpage that
has caused or will shortly cause the groundwater or aquifer to fall below
sustainable yield on a long-term or permanent basis, not primarily caused by but
possibly exacerbated by short-term climatic conditions.
Conservation actions taken by the District will remain in effect until
such time the aquifer shows long-term reversal of the non-sustaining condition.
Such reversal can conceivably be brought about through permanent pumpage
reduction, use of alternative water sources, or changes in well owners use of
water.
3.
A Category Three
classification will be assigned to an area experiencing a potential
critical depletion due to pumpage that may
have caused or will shortly cause the groundwater or aquifer to fall below
sustainable yield on a long-term or permanent basis.
While this area is being further evaluated, water users in this area will
be encouraged to voluntarily curtail their water use in order to prevent the
situation from escalating to a Category Two or Three.
RULE 16.2
PROCEDURES FOLLOWING ESTABLISHMENT OF A CGDA
Once a CGDA is declared
and delineated, the area shall be given a unique name or number for
identification purposes and all well owners in the area will be notified by
public media. Notification of all
Board decisions related to a CGDA will be made to all well and landowners within
the CGDA by published notice in a local newspaper of general circulation.
When the Board declares and delineates a CGDA, the Board may:
1.
Deny all applications for
drilling within the CGDA during the time the area is declared to be a Critical
Groundwater Depletion Area,
2.
Set production limits on
Permitted Wells located within the CGDA to an assigned volume of water as
determined from the historical production data obtained from District records.
The allowed volume shall be an amount that will halt the decline of the
groundwater or aquifer sustainable yield, which may allow continued but reduced
pumpage. The approved
conservation/drought management plans will be considered in determining the
production limits. The Board will
review the production allocation on a quarterly basis and make appropriate
adjustments as permitted or dictated by groundwater or aquifer conditions.
3.
Require all Permitted Wells
within the CGDA to be equipped with a District approved flow meter or other
measuring device. The expense of the
device shall be borne by the well owner, or
4.
Increase spacing within the
CGDA of any new wells authorized by the District, or
5.
Invoke any or all of the
above, and
6.
Establish production limits
on domestic use by all wells within the CGDA other than wells subject to
regulation in Rule 16.2 (2) above or which are otherwise exempted from
production limitations by Chapter 36.117(c) Texas Water Code.
Owners or operators of Permitted Wells within the CGDA shall
provide the District with reports of the amount of water produced from each well
under permit in the CGDA on forms provided by the District and on a schedule
determined by the Board. If the
Board has not required metering devices on wells, production volume reports
shall be provided by accurate estimates such as recording duration of pumping
and the well output capacity (gpm).
Owners or operators of Permitted Wells within the CGDA may
request a temporary change in water allocation through petition to the Board.
Decision on such requests will be made consistent with prudent groundwater
and aquifer management, the effect on other well owners in the CGDA, and
the degree of necessity for the request.
Home
