Can Texas require a new water well to sit a minimum distance from the property line?

Texas AG Opinion JC-0090: Water Well Property-Line Spacing and Agency Rule-Making Authority

Plain-English summary

A state rule required new water wells to be drilled a minimum horizontal distance from the property line. Representative David Counts, who chaired the House Natural Resources Committee, questioned that requirement. His point was practical: a property line is a legal boundary, not a physical thing, and on its own it has nothing to do with whether groundwater gets contaminated. So he asked whether the agency even had the authority to impose a property-line setback.

By the time the opinion issued, the regulatory landscape had shifted. In 1997 the Legislature moved authority over water well drillers and pump installers from the Texas Natural Resource Conservation Commission to the Texas Department of Licensing and Regulation. The old TNRCC rule was repealed, and the Department adopted a new spacing rule: a well had to sit at least 100 feet from septic absorption fields, septic spray areas, and dry-litter poultry facilities, and 50 feet from any property line, with exceptions, including one where a groundwater conservation district's own spacing rules applied. Treating the representative's concern as carrying over to the new rule, the opinion analyzed the Department's authority.

The opinion applied the settled standard for agency rules: an agency may adopt only rules authorized by and consistent with its statutory authority, the key question being whether the rule harmonizes with the statute's general objectives, and a court will uphold a reasonable rule even if it is not wise, desirable, or necessary. It traced the Department's mandate from the constitutional duty to conserve natural resources and the Water Code's groundwater-protection policy through chapters 32 and 33, which let the Department license drillers and pump installers and adopt standards for completing wells. A rule about where wells may be placed fit within that authority. On the representative's specific objection, the opinion declined to say which placement criteria best protect groundwater, but found a reasonable justification for the property-line rule: a landowner may be unaware of contamination sources just beyond the line and could unwittingly drill a well too close to one, creating a conduit for contamination. The setback helps landowners avoid that. Concluding the rule advanced the Water Code's purposes, the opinion held it within the Department's rule-making authority.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The specific well-spacing rule discussed here has likely been amended or recodified since 1999.

Common questions

Did the opinion uphold the property-line setback for water wells?
It concluded the rule requiring a well to sit a minimum distance from a property line was within the Department of Licensing and Regulation's rule-making authority. It did not rule on whether the setback was the best possible policy.

If a property line isn't a contamination source, why is the setback allowed?
The opinion explained that a landowner may not know about contamination sources just past the property line and could place a well too close to one without adequate protection. The setback gives a margin that helps prevent groundwater contamination.

Which agency regulates water wells in this area?
The opinion noted that in 1997 the Legislature transferred authority over water well drillers and pump installers from the TNRCC to the Texas Department of Licensing and Regulation, which then adopted the spacing rule at issue.

Did the opinion judge whether the rule was good policy?
No. The opinion said it was not for the office to decide which well-placement criteria best protect groundwater. It applied the deferential standard that a reasonable rule will be upheld even if it is not wise, desirable, or necessary.

Background and statutory framework

The opinion applied the framework for reviewing agency rules drawn from Railroad Comm'n v. Arco Oil & Gas (an agency may adopt only rules authorized by and consistent with its statutory authority), Edgewood Indep. Sch. Dist. v. Meno and Railroad Comm'n v. Lone Star Gas Co. (the rule must harmonize with the statute's general objectives), and Bullock v. Hewlett-Packard Co. (a reasonable rule is upheld even if not wise, desirable, or necessary, and courts presume facts justifying a rule when statutory authority exists).

The Department's authority traced to the constitutional duty to conserve and develop the state's natural resources in article XVI, section 59(a), and the Water Code's conservation policy in section 1.003. Chapters 32 and 33 of the Water Code protect underground fresh water by regulating water well drillers and pump installers, who must be licensed and follow Department rules, with the Department directed to adopt rules to enforce those chapters (sections 32.002, 33.002, 32.009, 32.017, 33.014, and 33.007). The opinion cited Williams v. State for the purpose of the Water Well Drillers Act, the predecessor to chapter 32. The well-spacing rule appeared at 16 Tex. Admin. Code section 76.1000(b)(2), with the groundwater-district exception at section 76.1000(b)(4)(A); the repealed TNRCC predecessor had been at 30 Tex. Admin. Code section 238.43(c).

Citations

Constitutional, statutory, and regulatory provisions:

• Tex. Const. art. XVI, § 59(a)
• Tex. Water Code Ann. § 1.003 (Vernon 1988); §§ 32.002, 33.002 (Vernon Supp. 1999); § 32.009 (Vernon 1999); § 32.017; § 33.014; § 33.007
• 16 Tex. Admin. Code § 76.1000(b)(2), § 76.1000(b)(4)(A)
• 30 Tex. Admin. Code § 238.43(c) (repealed)

Cases:

• Railroad Comm'n v. Arco Oil & Gas, 876 S.W.2d 473 (Tex. App.-Austin 1994, writ denied)
• Edgewood Indep. Sch. Dist. v. Meno, 893 S.W.2d 450 (Tex. 1995)
• Railroad Comm'n v. Lone Star Gas Co., 884 S.W.2d 679 (Tex. 1992)
• Bullock v. Hewlett-Packard Co., 628 S.W.2d 754 (Tex. 1982)
• Williams v. State, 514 S.W.2d 772 (Tex. Civ. App.-Beaumont 1974, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0090
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0090.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL STATE OF TEXAS

JOHN CORNYN

August 10, 1999

The Honorable David Counts
Chair, Committee on Natural Resources
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. JC-0090

Re: Validity of rule relating to location of water wells (RQ-0017)

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 § 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 file 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., R.S., 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 of potential contamination." 23 Tex. Reg. 13067 (1998) (to be codified at 16 TEX. ADMIN. CODE § 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 of the statute involved. Edgewood Indep. Sch. Dist. v. Meno, 893 S.W.2d 450, 484 (Tex. 1995); Railroad Comm'n v. 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, § 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. § 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 ref'd 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, "[t]he 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. § 32.009 (Vernon 1999). The Department's authority includes the adoption of standards and procedures for the completing of wells by licensed drillers. Id. § 32.017. Pump installers are also subject to Department standards and procedures for completing wells. Id. § 33.014. "The department shall adopt rules as necessary to enforce" chapter 33. Id. § 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 of contamination 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).

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.

Yours very truly,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Barbara Griffin
Assistant Attorney General - Opinion Committee