   OFFICE   OF THE   ATTORNEV   GENERAL.   STATE   OF TEXAS

   JOHN     CORNYN




                                                   August lo,1999


The Honorable David Counts                                    Opinion No. JC-0090
Chair, Committee on Natural Resources
Texas House of Representatives                                Re: Validity of rule relating to location of water
P.O. Box 2910                                                 wells (RQ-0017)
Austin, Texas 78768-2910


Dear Representative       Counts:

        You asked whether the Texas Natural Resource Conservation Commission had the authority
to adopt a certain rule relating to the location of new water wells. The rule required water wells to
be located a minimum horizontal distance from a property line. See 21 Tex. Reg. 11844 (1996)
(formerly codified at 30 TEX. ADMIN. CODE 5 238.43(c), repealed 24 Tex. Reg. 581 (1999)). You
questioned whether the TNRCC could impose a rule requiring a well to be located a minimum
distance from a property line because, you tell us, property lines “have no relation to protecting
groundwater    from contamination.”       Letter from Representative   David Counts to Honorable
Dan Morales (Mar. 7, 1997) (on tile with Opinion Committee).

         In 1997, the Texas Legislature transferred the authority to regulate water well drillers and
water well pump installers from the Commission to the Texas Department of Licensing and
Regulation. See Act of May 28, 1997,75th Leg., RX, ch. 1077, 1997 Tex. Gen. Laws 4155. The
TNRCC rule was repealed, see 24 Tex. Reg. 581 (1999), and a new rule regulating the spacing of
water wells was adopted by the Department, see 23 Tex. Reg. 13059 (1998). The new Department
rule provides in relevant part: “A well shall be located a minimum horizontal distance of 100 ft.
from an existing or proposed septic system absorption field, septic systems spray area, a dry litter
poultry facility and 50 feet from any property line provided the well is located at the minimum
horizontal distance from the sources ofpotential contamination.” 23 Tex. Reg. 13067 (1998) (to be
codified at 16 TEX. ADMIN. CODE 5 76.1000(b)(2) (Tex. Dep’t of Licensing and Regulation)).
Among other exceptions, the property line distance requirement does not apply when groundwater
district rules are in place regulating the spacing. Id. (to be codified at 16 TEX. ADMIN. CODE
§ 76,1000(b)(4)(A)).    We assume that you have the same concerns about the Department rule that
you had about the TNRCC rule, so we consider whether the Department has the authority to adopt
the rule.

         “[A]n agency can adopt only such rules as are authorized by and consistent with its statutory
authority.” Railroad Comm ‘n v. Arco Oil & Gas, 876 S.W.2d 473,481 (Tex. App.-Austin 1994,
writ denied). The critical factor in determining whether an administrative agency has exceeded its
rule-making authority is whether the rule’s provisions are in harmony with the general objectives
The Honorable David Counts      - Page 2          (JC-0090)




of the statute involved. Edgewood Indep. Sch. Dist. v. Meno, 893 S.W.2d 450,484 (Tex. 1995);
Railroad Comm ‘n Y. Lone Star Gas Co., 884 S.W.2d 679,685 (Tex. 1992). A court will uphold an
agency rule if it is reasonable. See Bullock v. Hewlett-Packard Co., 628 S.W.2d 754, 756 (Tex.
1982). “The rules need not be, in the court’s opinion, wise, desirable, or even necessary.” Id. They
need only be based on some legitimate position advanced by the agency. Id. When statutory
authority exists to adopt the rule, courts will presume that facts exist which justify the rule’s
promulgation.    Id.

         The Texas Constitution provides that it is the duty of the state to conserve and develop the
state’s natural resources. TEX. CONST. art. XVI, 5 59(a). The Texas Water Code provides: “It is the
public policy of the state to provide for the conservation and development of the state’s natural
resources       _” TEX. WATER CODE ANN. 5 1.003 (Vernon 1988). Chapters 32 and 33 of the Water
Code further this policy by providing for the protection of underground fresh water resources
through the regulation of water well drillers and pump installers, who must be licensed by the
Department and comply with Department rules. See id. §§ 32.002,33.002 (Vernon Supp. 1999); see
also Williams v. State, 514 S.W.2d 772, 776 (Tex. Civ. App.-Beaumont            1974, writ refd n.r.e.)
(discussing the purpose of Water Well Drillers Act, predecessor to chapter 32 of the Water Code).

          With respect to water well drillers, “[tlhe department, with advice and comment from the
Texas Natural Resource Conservation Commission, shall adopt rules as necessary to enforce this
chapter, including rules governing applications for a license, qualifications of applicants, standards
of conduct for licensed drillers including marking of well drilling rigs and equipment, and rules
governing procedure and practice before the department.”          TEX. WATER CODE ANN. 5 32.009
(Vernon 1999). The Department’s authority includes the adoption of standards and procedures for
the completing of wells by licensed drillers. Id. 5 32.017. Pump installers are also subject to
Department standards and procedures for completing wells. Id. 5 33.014. “The department shall
adopt rules as necessary to enforce” chapter 33. Id. 5 33.007. In our view, a Department rule
regarding the placement of new water wells is within the scope of the Department’s authority to
adopt standards and procedures for the completion of water wells by water well drillers and pump
installers in accordance with the Department’s charge to protect the state’s groundwater resources.

        You question, however, whether requiring a well to be placed a minimum distance from a
property line is a legitimate way to protect groundwater from contamination.   While it is not for this
office to determine which well-placement criteria best protect the state’s groundwater, we see a
reasonable justification     for the requirement that a well be placed a minimum distance from a
property line. A landowner may be completely unaware of sources ofcontamination       that lie beyond
the landowner’s property lines. The landowner may unwittingly place a well near a property line
without sufficient protection, thereby creating a conduit for contamination of groundwater.        The
property-line spacing rule helps landowners avoid such contamination.      See Letter from Geoffrey
S. Conner, General Counsel, Texas Natural Resource Conservation Commission, to Honorable Dan
Morales, Texas Attorney General (Apr. 17, 1997) (on file with Opinion Committee).
The Honorable   David Counts   - Page 3            (JC-0090)




         We believe that the rule advances the purposes of the Water Code and is in harmony with
its objectives. Accordingly, we conclude that the rule requiring water wells to be located a minimum
distance from a property line is within the scope of the Department’s rule-making authority.

                                       SUMMARY

                         A Texas Department of Licensing and Regulation rule
                requiring a water well to be located a minimum distance from a
                property line is within the scope of the Department’s rule-making
                authority.

                                              Y       s ve     truly



                                             4~i
                                            c---

                                              JOkN
                                                      c

                                                       CO>NYN
                                                             c,;l-r

                                              Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Barbara Griffin
Assistant Attorney General - Opinion Committee
