RULES OF
PECAN VALLEY GROUNDWATER CONSERVATION DISTRICT
ADOPTED:
EFFECTIVE: September 7, 20004
The rules of the Pecan Valley
Groundwater Conservation District were adopted on
In accordance with Section 59 of Article XVI of the Texas Constitution, H.B.
3231, 76th Legislature, and Chapter 36 of the Texas Water Code, the following
rules are hereby ratified and adopted as the rules of this District by its
Board. Each rule as worded herein has been in effect since the date of passage
and as may be hereafter amended.
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. To the end that these objectives are attained, these rules will be so
construed.
These rules may be used as guides in the exercise of discretion,
where discretion is vested. However, under no circumstances and in no
particular case may these rules be construed as a limitation or restriction
upon the exercise of powers, duties, and jurisdiction conferred by law. These
rules will not limit or restrict the amount and accuracy of data or information
that may be required for the proper administration of the law.
Table of Contents
SECTION 1. DEFINITIONS AND CONCEPTS
RULE 1.1 DEFINITIONS OF TERMS:
RULE 1.2 PURPOSE OF RULES:
RULE 1.3 USE AND EFFECT OF RULES:
RULE 1.4 AMENDING OF RULES:
RULE 1.5 HEADINGS AND CAPTIONS:
RULE 1.6 CONSTRUCTION:
RULE 1.7 METHODS OF SERVICE UNDER THE RULES:
RULE 1.8 SEVERABILITY:
SECTION 2. BOARD
RULE 2.1 PURPOSE OF BOARD:
RULE 2.2 BOARD STRUCTURE, OFFICERS:
RULE 2.3 MEETINGS:
RULE 2.4 COMMITTEES:
RULE 2.5 EX PARTE COMMUNICATIONS:
SECTION 3. DISTRICT STAFF
RULE 3.1 GENERAL MANAGER:
SECTION 4. DISTRICT
RULE 4.1 MINUTES AND RECORDS OF THE DISTRICT:
RULE 4.2 CERTIFIED COPIES:
SECTION 5. SPACING REQUIREMENTS
RULE 5.1 REQUIRED SPACING:
RULE 5.2 EXCEPTIONS TO SPACING REQUIREMENTS:
SECTION 6. PRODUCTION LIMITATIONS
RULE 6.1 MAXIMUM ALLOWABLE PRODUCTION:
SECTION 7. OTHER DISTRICT ACTIONS AND DUTIES
RULE 7.1 DISTRICT MANAGEMENT PLAN:
SECTION 8. TRANSFER OF GROUNDWATER OUT OF THE DISTRICT:
RULE 8.1 PERMIT REQUIRED:
RULE 8.2 APPLICABILITY:
RULE 8.3 APPLICATION:
RULE 8.4 HEARING AND PERMIT ISSUANCE:
SECTION 9. DEPOSITS FOR WELL DRILLING PERMITS
RULE 9.1 DEPOSITS:
SECTION 10. PERMITS
RULE 10.1 REGISTRATION OF NEW WELLS:
RULE 10.2 GENERAL PERMITTING POLICIES AND PROCEDURES:
Drilling Permit Requirement:
Operating Permit Requirement
Permit Applications
Notice of Permit Hearing
Decision and Issuance of Permit
Drilling Permits
Operating Permits
Permit Provisions
Aggregation of Withdrawal
Effect of Acceptance of Permit
RULE 10.3 OPERATING PERMIT PROVISIONS:
RULE 10.4 OPERATING PERMIT LIMITATIONS:
Maximum Authorized Withdrawal
Operating Permit Required
RULE 10.5 EXCLUSIONS AND EXEMPTIONS:
SECTION 11. REWORKING AND REPLACING A WELL
RULE 11.1 PROCEDURES:
SECTION 12. WELL LOCATION AND COMPLETION
RULE 12.1
RESPONSIBILITY:
RULE 12.2
LOCATION OF DOMESTIC, INDUSTRIAL, INJECTION,
AND IRRIGATION
WELLS:
RULE 12.3
STANDARDS OF COMPLETION FOR DOMESTIC,
INDUSTRIAL, INJECTION, AND IRRIGATION WELLS:
RULE 12.4
RE-COMPLETIONS:
SECTION 13.
WASTE AND BENEFICIAL USE
RULE 13.1
WASTE MEANS ANY ONE OR MORE OF THE FOLLOWING:
RULE 13.2
WASTE PREVENTION:
RULE 13.3 USE FOR A BENEFICIAL PURPOSE:
SECTION 14. HEARINGS
RULE 14.1 TYPES OF HEARINGS:
Permit Hearings:
Rule-making Hearings:
RULE 14.2 NOTICE AND SCHEDULING OF HEARINGS:
RULE 14.3 GENERAL PROCEDURES:
Authority of Presiding Officer:
Hearing Registration Forms:
Appearance; Representative Capacity:
Alignment of Parties; Number of Representatives Heard:
Appearance by Applicant or Movant:
Reporting:
Continuance:
Filing of Documents; Time Limit:
Computing Time: In
Affidavit:
Broadening the Issues:
Conduct and Decorum:
RULE 14.4 UNCONTESTED PERMIT HEARINGS PROCEDURES:
Written Notice of Intent to Contest:
Informal Hearings:
Agreement of Parties:
Decision to Proceed as Uncontested or Contested Case:
RULE 14.5 CONTESTED PERMIT HEARINGS PROCEDURES:
Prehering Conference:
Matters Considered:
Notice:
Conference Action:
Assessing Reporting and Transcription Costs:
Designation of Parties:
Rights of Designated Parties:
Persons Not Designated Parties
Furnishing Copies of Pleadings:
Interpreters for Deaf Parties and Witnesses:
Agreements to be in Writing:
Discovery:
Discovery Sanctions:
Ex Parte Communications:
Compelling Testimony; Swearing Witnesses and Subpoena Power:
Evidence:
Written Testimony:
Requirements for Exhibits:
Abstracts of Documents:
Introduction and Copies of Exhibits:
Excluding Exhibits:
Official Notice:
Documents in District Files:
Oral Argument:
RULE 14.6 CONCLUSION OF THE HEARING; REPORT:
Closing the Record; Final Report:
Exceptions to the Hearing Examiner's Report; Reopening the
Record:
Time for Board Action on Certain Permit Matters:
RULE 14.7 RULEMAKING HEARINGS PROCEDURES:
Submission of Documents:
Oral Presentations:
Conclusion of the Hearing; Closing the Record; Hearing
Examiner's Report:
Exceptions to the Hearing Examiner's Report; Reopening the
Record:
RULE 14.8 FINAL DECISION; APPEAL:
Board Action:
Requests for Rehearing:
SECTION 15. INVESTIGATIONS AND ENFORCEMENT
RULE 15.1 NOTICE AND ACCESS TO PROPERTY:
RULE 15.2 CONDUCT OF INVESTIGATION:
RULE 15.3 RULE ENFORCEMENT:
RULE 15.4 SEALING OF WELLS:
GROUNDWATER CONSERVATION DISTRICT
DISTRICT RULES
SECTION 1. DEFINITIONS AND CONCEPTS
RULE 1.1 DEFINITIONS OF TERMS:
In the administration of its duties, the Pecan Valley
Groundwater Conservation District follows the definitions of terms set forth in
The District Act, Chapter 36 of the Texas Water Code, and other definitions as
follow:
"Acre-foot" means the amount of water necessary to
cover one acre of land one foot deep, or about 325,000 gallons of water.
"Agricultural crop" means food or fiber commodities
grown for resale or commercial purposes that provide food, clothing, or animal
feed.
"Board" means the Board of Directors of the District.
"De-watering well" means a well used to remove water
from a construction site or excavation, or to relieve hydrostatic uplift on
permanent structures.
"District" means the Pecan Valley Groundwater
Conservation District.
"District Act" means H.B. 3231, 76th
Legislature and the non-conflicting provisions of Chapter 36, Water Code.
"District office" means the office of the District as
established by resolution of the Board.
"Drilling Permit" means a permit for a water well
issued or to be issued by the District allowing a water well to be drilled.
"Groundwater" means water located beneath the earth's
surface within the District but does not include water produced with oil in the
production of oil and gas.
"Hearing body" means the Board, any committee of the
Board, or a Hearing Examiner at any hearing held under the authority of the
District Act.
"Hearing Examiner" means a person appointed by the
Board of Directors to conduct a hearing or other proceeding.
"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
A closed system geothermal well used to circulate water, other
fluids, or gases through the earth as a heat source or heat sink.
"Landowner" means the person who bears ownership of
the land surface.
"Leachate well" means a well
used to remove contamination from soil or groundwater.
"Monitoring well" means 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.
"New well application" means an application for a
permit for a water well that has not yet been drilled.
"Open meeting law" means Chapter 551, Texas Government
Code.
"Operating Permit" means a permit issued by the
District for a water well, allowing groundwater to be withdrawn from a water
well for a designated period.
"Public Information Act" means Chapter 552, 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" means 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.
"Rules" means the rules of the District compiled in
this document and as may be supplemented or amended from time to time.
"Section" means the number section of a survey or
block as shown in "Texas Country Farm Plats," 1996 Edition, (Smith
Publishing Co.).
"Texas Rule 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.
"Waste" means Chapter 36.001 (8) Definitions and
Section 13 herein.
"Water meter" means a water flow measuring device that
can accurately record the amount of groundwater produced during a measured
time.
"Well" means any facility, device, or method used to
withdraw groundwater from the groundwater supply within the District.
"Well owner" or "well operator" means the
person who owns the land upon which a well is located or is to be located or
the person who operates a well or a water distribution system supplied by a
well.
"Well system" means a well or group of wells
tied to the same distribution system.
"Withdraw" means extracting groundwater by pumping or
by another method.
"Windmill" means 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 and accomplish its purposes.
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, nor be
construed to limit or restrict the amount and character of data or information
that may be required to be collected for the proper administration of the District
Act.
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.
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:
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 last known address, or by telephonic document transfer to the
recipient's current telecopier 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 document transfer is
complete upon transfer, except that any transfer occurring after
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, the invalidity, illegality, or unenforceability may 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.
SECTION 2. BOARD
RULE 2.1 PURPOSE OF BOARD:
The Board was created to determine policy and regulate the
withdrawal of groundwater within the boundaries of the District for conserving,
preserving, protecting and recharging 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. 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 Chairman, to preside over Board meetings and proceedings; one to serve as
Vice Chairman to preside in the absence of the Chairman; and one to serve as
Secretary to keep a true and complete account of all meetings and proceedings
of the Board. The Board may elect officers annually, but must elect officers at
the first meeting following the election of board members. 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 once each quarter as the
Board may establish from time to time by resolution. At the request of the
Chairman, 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 Chairman 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 Chairman.
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. A Board member may communicate ex parte with other members of the Board. This rule does not
apply to a Board member who abstains from voting on any matter in which ex parte communications have occurred.
SECTION 3. DISTRICT STAFF
RULE 3.1 GENERAL MANAGER:
The Board may employ or contract for a person to manage the
District, and title this person general manager. The general manager will have
no power, duty, or responsibility other than gathering information and
performing Water District functions as determined by the Board. 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. The general manager,
with approval of the Board, may employ all persons necessary for the proper
handling of business and operation of the District and their salaries will be
set by the Board.
SECTION 4. DISTRICT
RULE 4.1 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 pursuant to policies established by the
District. A list of the charges for copies will be furnished by the District.
RULE 4.2 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.
SECTION 5. SPACING REQUIREMENTS
RULE 5.1 REQUIRED SPACING:
A new well may not be drilled within [150] 100
feet from the property line of any adjoining landowner. Minimum distance from any existing or
proposed septic system, whether on owner’s property or adjacent property, must
meet county and state standards. Spacing
requirements for permitted wells is 2 feet for every gallon per minute (gpm) of the permitted flow from nearest existing well or
authorized well site.
RULE 5.2 EXCEPTIONS TO SPACING REQUIREMENTS:
1. If the applicant presents waivers signed by the adjoining
landowner(s) stating that they have no objection to the proposed location of
the well site, the spacing requirements [will] may not apply to
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 [150] 100 feet, the issue of spacing
requirements will be considered during the contested case process. If the board
chooses to grant a permit to drill a well that does not meet the spacing
requirements, the Board must limit the production of the well to ensure no
injury is done to adjoining landowners or the aquifer.
3. The Board may, if good cause is shown by clear and convincing
evidence, enter special orders or add special permit conditions increasing or
decreasing spacing requirements.
SECTION 6. PRODUCTION LIMITATIONS
RULE 6.1 MAXIMUM ALLOWABLE PRODUCTION:
1. A well or well system may only be permitted to be drilled and
equipped for the production of a cumulative total of 10 gallons per minute
(g.p.m.) per contiguous acre owned or operated.
2. In no event may a well or well system be operated such that
the total annual production exceeds 1 acre feet of water per acre owned or
operated within the same Section.
3. An exception to the production limitations will be considered
only ten days after 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.
4. Utilities that supply water to the public may use acreage
within their service area in the district to meet the production acreage
requirements for water supplied in the district.
5. Operators of permitted wells shall provide monthly production
reports to the District. Production
reports must be based upon accurate meters provided by the operator.
SECTION 7. OTHER DISTRICT ACTIONS AND DUTIES
RULE 7.1 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 a new plan necessary or
desirable, based on evidence presented at hearing, a new plan will be adopted.
A plan, once adopted, remains in effect until the adoption of a new plan.
SECTION 8. TRANSFER OF GROUNDWATER OUT
OF THE DISTRICT:
RULE 8.1 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 and the proposed water transporter a transport permit (rule addition/change
RULE 8.2 APPLICABILITY:
A groundwater transport permit is not required for
transportation of groundwater that is to be used on property that straddles the
district boundary line.
RULE 8.3 APPLICATION:
An application for a transportation permit must be filed in the
District office and must include the following information:
a) The name and mailing address of the applicant;
b) A statement of the nature and purpose of the proposed use and
the amount of water to be used for each purpose;
c) A water-conservation plan;
d) The location of the well(s) and rates of withdrawal;
e) Proof of notification of all landowners adjacent to the
property where the well or wells are located and all well owners within one
mile of any of the proposed production wells.
RULE 8.4 HEARING AND PERMIT ISSUANCE:
a) Applications for transportation permits are subject to the
hearing procedures provided by these rules.
b) In determining whether to issue a permit to transfer
groundwater out of the District, the Board shall consider:
1) availability of water in the District and in the proposed
receiving area;
2) the projected effect of the proposed transfer on aquifer
conditions, depletion, subsidence, or effects on existing permit holders or
other groundwater users within the District;
3) the approved regional and state water plan, and the certified
District management plan;
SECTION 9. DEPOSITS FOR WELL DRILLING
PERMITS
(Section 9.1
deleted -
RULE 9.1 DEPOSITS:
Each application for a permit to drill a well must be
accompanied by a $50.00 deposit which 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 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 [eight
(8)] four (4) months after application date of the permit, the
deposit becomes the property of the District.
SECTION 10. PERMITS
RULE 10.1 REGISTRATION OF NEW WELLS:
a) 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/application for water well permit form being filed with the
District and a registration number assigned by the District.
b) All new wells, except leachate
wells, monitoring wells, and de-watering wells, must be registered by the well
owner, well operator, or water well driller prior to being drilled. The
District staff will review the registration and make a preliminary determination
on whether the well meets the exclusions or exemptions provided in Rule 10.5.
Providing the preliminary determination is ruled the well is excluded or
exempt, the registrant may begin drilling immediately upon receiving the
approved registration.
RULE 10.2 GENERAL PERMITTING POLICIES AND PROCEDURES FOR
NON-EXEMPT WELLS:
a) Drilling Permit Requirement: The well owner, well
operator, or any other person acting on behalf of the well owner, must file a
completed well registration/application for a water well permit before a well
may be drilled. Providing the application for a drilling permit meets all the
guidelines of these rules, the applicant may thereupon proceed at his own risk
to drill such well. This application for a drilling permit shall not, however,
be officially granted until the opportunity for a due process public hearing
has been satisfied and the Board has approved the permit.
b) Operating Permit Requirement: Within 14 days after a
well is drilled, the well owner or well operator must file a completed
operating permit application prior to operating the well. The operating permit
must be approved by the Board of Directors and remain permitted until an
operating permit is no longer required for the well/well system.
c) Permit Applications: Each original application for a
water well drilling permit, operating permit, and permit renewal requires a
separate application. Application forms will be provided by the District and
furnished to the applicant upon request.
d) Notice of Permit Hearing: Once the District has
received a completed original application for a water well drilling permit,
operating permit, or an operating permit renewal, the general manager, with
Board orders 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.
e) 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 the District Rules.
f) Drilling Permits: Unless specified otherwise by the
Board or these rules, permits are effective for a term ending 120 calendar days
after the date the permit was applied for.
g) Operating Permits: 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.
h) Permit Provisions: The permit will contain the
standard provisions listed in Rules 10.3. The permit may also contain
provisions relating to the means and methods of transportation of water
produced within the district.
i) 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 10.3 OPERATING PERMIT PROVISIONS:
All permits are granted subject to these rules, orders of the Board,
and the laws of the State of
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 of the District.
1. This permit confers only the right to operate the permit
under the provisions of Rule 6.1, and its terms may be modified or amended
pursuant to the provisions of that Rule. To protect the permit holder from the
illegal use of a new landowner, within 10 days after the date of sale, the
operating permit holder must notify the District in writing the name of the new
owner. Any person who becomes the owner of a currently permitted well must,
within 20 calendar days from the date of the change in ownership, file an
application for a permit amendment to effect a transfer of the permit.
2. The operation of the well for the authorized withdrawal must
be conducted in a non-wasteful manner.
3. Withdrawals from all non-exempt wells must be measured or
estimated 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.
4. The well site must be accessible to District representatives
for inspection, 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 this 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 this permit's terms, conditions, requirements,
or special provisions, including pumping amounts in excess of authorized
withdrawal, is punishable by civil penalties as provided by the District Rule
15.3.
RULE 10.4 OPERATING PERMIT
LIMITATIONS:
a) Maximum Authorized Withdrawal: It is a violation of these rules to
pump any amount of water over the authorized permit.
b) Operating Permit Required: It is violation of these
rules to pump a well without an operating permit application being filed with
the District [awaiting approval by the Board of Directors].
RULE 10.5 EXCLUSIONS AND EXEMPTIONS:
The permit requirements in Section 10 do not apply to:
a) wells used solely for domestic use or for providing water for
livestock or poultry on a tract of land larger than 10 acres drilled or
equipped such that it is incapable of producing more than 25,000 gallons of
groundwater per day;
b) wells used to supply water for hydrocarbon production
activities associated with any oil or gas well permitted by the Railroad
Commission of Texas.
c) wells that were fully
completed before
RULE 10.6 MITIGATION PERMIT PROVISIONS:
In order to insure no unreasonable
effects on existing groundwater resources, the district shall require any well
permit applications producing greater than 300 acre/feet of water per calendar
year from the same producer or connected or to be connected to a common
gathering/transportation system or to the same user to include in the
application a plan to mitigate the affects of the drawdown of the 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 permit in the event
that pumping causes the water level in a registered or permitted well to drop
to an unacceptable level.
2.
The
actions and procedures to be taken by the holder of the permit in the event
that pumping from the permitted well causes the water to become unusable by a
registered or permitted well owner.
3.
The
actions and procedures to be taken by the holder of the permit in the event
that pumping causes well casing or equipment to be damaged so that the recorded
quality or quantity of water cannot be produced by the registered or permitted
well owner.
4.
The
actions and procedures to be taken by the holder of the permit in the event
that pumping causes springs or 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 include a specifically enumerated time schedule for the
execution of the mitigation plan.
SECTION 11. REWORKING AND REPLACING A
WELL
RULE 11.1 PROCEDURES:
a) An existing well may be reworked, re-drilled, or re-equipped in a manner
that will not change the existing well status.
b) A permit must be applied for and the board will consider approving the
permit, if a party wishes to increase the rate of production of an existing
well to the point of increasing the size of the column pipe and g.p.m. rate by
reworking, re-equipping, or re-drilling such well.
c) A permit must be applied for and granted by the board if a party wishes to
replace an existing well with a replacement well.
d) A replacement well, in order to be considered such, must be drilled within
ten (10) yards (30 feet) of the existing well and shall not be drilled nearer
the property line provided the original well was "grandfathered"
inside the spacing requirements of Rule 5.1.
e) In the event the application meets spacing (Rule 5) and
production (Rule 6) requirements, the board may grant such application without
further notice.
SECTION 12. WELL LOCATION AND COMPLETION
RULE 12.1 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 and
persons having a well drilled, deepened, or otherwise altered shall adhere to
the provisions of the rule prescribing the location of wells and proper
completion.
RULE 12.2 LOCATION OF DOMESTIC, INDUSTRIAL, INJECTION, AND
IRRIGATION WELLS:
a) A well must be located a minimum horizontal distance of [150] 60 feet from any
water-tight sewage facility and liquid-waste collection facility.
b) A well must be located a minimum horizontal distance of [150]
100 feet from any contamination, such as existing or proposed
livestock or poultry yards, privies, and septic system absorption fields.
c) 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 known flood level.
d) 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 12.3 STANDARDS OF COMPLETION FOR DOMESTIC,
INDUSTRIAL, INJECTION, AND IRRIGATION WELLS:
Water well drillers must indicate the method of completion
performed on the Well Report (TNRCC-0199) Section 10 Surface Completion.
Domestic, industrial, injection, and irrigation wells must be completed in
accordance with the following specifications and in compliance with local
county or incorporated city ordinances:
a) The annular space between the borehole and the casing shall
be filled from the ground level to a depth of not less than 10 feet
below the land surface or well head with cement slurry.
b) All wells shall have a concrete slab or sealing block above
the cement slurry around the well at the ground surface.
c) The slab or block shall extend at least two (2) feet
from the well in all directions and have a minimum thickness of four inches
and shall be separated from the well casing by a plastic or mastic coating or
sleeve to prevent bonding of the slab to the casing.
d) The surface of the slab shall be sloped to drain away from
the well.
In all wells:
The casing shall extend a minimum of one foot above the original
ground surface; and
A slab or block as described in Paragraph (2)(a) is required
above the
cement slurry except when a pitless
adapter is used. Pitless adapters may be used in such
wells provided that:
Pitless adapter is welded to the casing or fitted
with another
suitably effective seal; and
The annular space between the borehole and the casing is
filled with cement to a depth not less than 15 feet below
the adapter connection.
f) All wells, especially those that are gravel packed, shall be
completed so that aquifers or zones containing waters that are known to differ
significantly in chemical quality are not allowed to commingle through the
borehole-casing annulus or the gravel pack and cause quality degradation of any
aquifer or zone.
g) The well casing shall be capped or completed in a manner that
will prevent pollutants from entering the well.
RULE 12.4 RE-COMPLETIONS:
a) 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.
b) 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.
c) 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.
SECTION 13. WASTE AND BENEFICIAL USE
RULE 13.1 WASTE MEANS ANY ONE OR MORE OF THE FOLLOWING:
a) Withdrawal of groundwater from a groundwater reservoir at a
rate in an amount that causes or threatens to cause intrusion into the
reservoir of water unsuitable for agricultural, gardening, domestic or stock
watering purposes;
b) The flowing or producing of wells from an groundwater
reservoir if the water produced is not used for a beneficial purpose;
c) Escape of groundwater from a groundwater reservoir to any
other reservoir or geologic strata that does not contain groundwater;
d) 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;
e) 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 commission under Chapter 26;
f) 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 occupant of the land receiving
the discharge;
g) For water produced from an artesian well, waste has the
meaning assigned by Section 11.205 Texas Water Code.
RULE 13.2 WASTE PREVENTION:
a) Underground Water shall not be produced within, or
used within or without the District, in such a manner as to constitute waste as
defined in Rule 1, Section (v) hereof.
b) No person shall pollute or harmfully alter the character of
the underground water reservoir of the District by means of salt water of other
deleterious matter admitted from some other stratum or strata from the surface
of the ground.
c) No person shall commit waste as that term is defined in
Section 13.
RULE 13.3 USE FOR A BENEFICIAL PURPOSE:
a) agricultural, gardening, domestic, stock raising, municipal,
mining, manufacturing, industrial, commercial, recreational, or pleasure
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.
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
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 may be referred by the Board for hearing before a Hearing Examiner.
a) Permit Hearings:
1) Permit Applications, Amendments and Revocations: The
District will hold hearings on water well drilling permits, operating permits,
permit renewals or amendments and permit revocations or suspensions. Hearings
involving permit matters may be scheduled before a Hearing Examiner.
2) Hearings on Motions for Rehearing: Motions for
Rehearing will be heard by the Board pursuant to Rule 14.8(b).
b) Rule-making Hearings:
1) District Management Plan: At its discretion, the Board
may hold a hearing to consider adoption of a new District Management plan.
2) 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 General Manager, as instructed by the Board, is responsible
for giving notice of all hearings in the following manner:
a) Notice will be given to each person who requests copies of
hearing notices pursuant to the procedures set forth in subsection (b), and any
other person the Board of Directors deem appropriate. The date of delivery or
mailing of notice may not be less than ten calendar days before the date set
for the hearing.
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 calendar days before the date set for the hearing.
A copy of the notice will be posted at the county courthouse in
the place where notices are usually posted. The date of posting may not be less
than ten calendar days before the date of the hearing.
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 at least ten calendar days before
the day of the hearing.
In addition to the notice required above, when a hearing
involves designation of a Production Limitation Management 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.
b) Any person having an interest in the subject matter of a
hearing or hearings may receive written notice of such hearing or hearings by
submitting a request in writing. The request must identify with as much
specificity as possible the hearing or hearings 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 any action taken
by the Board.
c) Hearings may be scheduled during the District's regular
business hours, Monday through Friday of each week, except District holidays.
All permit hearings will be held at the District Office. 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.
RULE 14.3 GENERAL PROCEDURES:
a) 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:
1) set hearing dates, other than the initial hearing date for
permit matters set by the General Manager in accordance with Rule 14.2(c);
2) convene the hearing at the time and place specified in the
notice for public hearing;
3) establish the jurisdiction of the District concerning the
subject matter under consideration;
4) rule on motions and on the admissibility of evidence and
amendments to pleadings;
5) designate and align parties and establish the order for
presentation of evidence;
6) administer oaths to all persons presenting testimony;
7) examine witnesses;
8) issue subpoenas when required to compel the attendance of
witnesses or the production of papers and documents;
9) require the taking of depositions and compel other forms of
discovery under these rules;
10) ensure that information and testimony are introduced as
conveniently and expeditiously as possible, without prejudicing the rights of
any party to the proceeding;
11) conduct public hearings in an orderly manner in accordance
with these rules;
12) recess any hearing from time to time and place to place;
13) reopen the record of a hearing for additional evidence when
necessary to make the record more complete; and
14) exercise any other appropriate powers necessary or
convenient to effectively carry out the responsibilities of presiding officer.
b) Hearing Registration Forms: Each individual attending
a hearing or other proceeding of the District must submit a form providing the
following information: name; address; whether the person plans to testify; and
any other information relevant to the hearing or other proceeding.
c) Appearance; Representative Capacity: Any interested
person may appear in person or may be represented by counsel, 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.
d) 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
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.
e) Appearance by Applicant or Movant:
The applicant, movant or party requesting the hearing
or other proceeding or a representative should 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.
f) 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 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 reporter, and a
copy of the transcript of testimony is ordered by any person, the testimony
will be transcribed and the original 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 from the reporter.
g) 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 to post at the county courthouses or publish a newspaper
notice of the new setting.
h) 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 within the time period is
insufficient if the submissions are not actually received by the District
within the time limit.
i) Computing Time: In computing any
period of time specified by these rules, by a presiding officer, by Board
orders, or by 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 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.
j) 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.
k) 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.
l) 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:
a) 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 office located at 1129 N. Esplanade, Cuero, Texas 77954 least five
calendar days prior to the date of the hearing. If the Board of Directors
intend to contest a permit application, the Board of Directors must provide the
applicant written notice of that intent at least five calendar days prior to
the date of the hearing. If no notice of intent to contest is received five
calendar days prior to the hearing, the general manager as instructed by the
Board of Directors, will cancel the hearing and the board will consider the
permit at the next regular board meeting.
b) 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 save time or cost to the parties,
lead to a negotiated or agreed settlement of facts or issues in controversy,
and not prejudice the rights of any party.
c) 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.
d) 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
preheating 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:
a) Prehearing Conference:
A prehearing conference may be held to consider any
matter which may expedite the hearing or otherwise facilitate the hearing
process.
1) 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.
2) 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.
3) 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.
b) 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:
1. the party who requested the transcript;
2. the financial ability of the party to pay the costs;
3. the extent to which the party participated in the hearing;
4. the relative benefits to the various parties of having a
transcript;
5. the budgetary constraints of a governmental entity
participating in the proceeding;
6. 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.
c) 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.
d) 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.
e) 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.
f) Furnishing Copies of Pleadings: After parties have
been designated, a copy of every pleading, request, motion, or reply filed in
the proceeding must be provided by the author 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.
g) 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.
h) 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.
i) 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.
j) 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:
1) suspend processing of the application for a permit if the
applicant is the offending party;
2) disallow any further discovery of any kind or a particular
kind by the offending party;
3) 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;
4) limit the offending party's participation in the proceeding;
5) disallow the offending party's presentation of evidence on issues
that were the subject of the discovery request; and
6) recommend to the Board that the hearing be dismissed with or
without prejudice.
k) Ex Parte Communications: The
Hearing Examiner may not communicate, directly or indirectly, in connection
with any issue of fact or law 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 staff not
directly involved in the hearing to utilize the special skills and knowledge of
the agency in evaluating the evidence.
l) 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.
m) 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.
n) Written Testimony: When a proceeding will be expedited
and the interest of the parties will not be prejudiced substantially, 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.
o) 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, may
not exceed 8-1/2 by 11 inches in size.
p) 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.
q) 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.
r) 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.
s) 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.
t) 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.
u) 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:
a) 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.
b) 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 exceptions, the Hearing
Examiner may reopen the record for the purpose of developing additional
evidence, or may deny the exceptions and submit the report and exceptions to the
Board. The Board may, at any time and in any case, remand the matter to the
Hearing Examiner for further proceedings.
c) 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
60 calendar days after the close of the hearing record.
RULE 14.7 RULEMAKING HEARINGS PROCEDURES:
a) General Procedures: The presiding officer will conduct
the rulemaking 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 "Parliamentary Procedure at
a Glance," New Edition, O. Garfield Jones, 1971 revised edition, or as
amended.
b) 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 hearing.
Such documents must be submitted no later than the time of the hearing, as
stated in the notice of hearing given in accordance with Rule 14.2; provided,
however, that the presiding officer may grant additional time for the
submission of documents.
c) Oral Presentations: Any person desiring to testify on
the subject of the 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 time period 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.
d) 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.
e) 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:
a) 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.
b) Requests for Rehearing: Any decision of the Board on a
matter may be appealed by requesting a rehearing before the Board within 20
calendar days of the Board's decision. Such a rehearing request must be filed
at the District Office in writing and must state clear and concise grounds for
the request. Such a rehearing request is mandatory with respect to any decision
or action of the Board before any appeal may be brought. 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 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 90 calendar days of submission will be
deemed to be a denial of the request.
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 to carry out technical and other
investigations necessary to the implementation of the District Rules. Prior to
entering upon property for the purpose of conducting an investigation, the
person seeking access must 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, as determined by information contained in the application or other
information on file with the District. 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 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 SEALING OF WELLS:
Following due-process, the District may, upon orders from the
judge of the courts, seal wells that are prohibited from withdrawing
groundwater within the District by the District Rules 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 excluded or exempted; or (2) no application has been made for an operating
permit to withdraw groundwater from an existing well that is not
excluded or exempted from the requirement that a permit be obtained in order to
lawfully withdraw groundwater; or (3) the Board has denied, canceled or revoked
a drilling permit or an operating permit.
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.
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 that action, as well as any
well owner or primary operator who authorizes or allows that action, to such
penalties as provided by the District Rules.