Opinion No.

The Honorable J. Randy Young, PE, Executive Director Arkansas Soil and Water Conservation Commission 101 East Capitol, Suite 350 Little Rock, Arkansas 72201

Dear Mr. Young:

You have requested an Attorney General opinion on the following question:

Can the Arkansas Water Well Construction Commission, by administrative rule or regulation, require continuing education as a condition of annual license renewal?

Although the statutes governing the Arkansas Water Well Construction Commission are unclear as to this issue, and the courts have not addressed the question, it is my opinion that the applicable statutes can be interpreted to allow the Commission, by administrative rule or regulation, to require continuing education as a condition of annual license renewal.¹

First, the statute delineating the Commission's powers and duties is set forth in language that is stated broadly enough to encompass such authority.

That statute states in pertinent part:

(a) The commission shall be responsible for the administration of this chapter and shall adopt, and from time to time amend or repeal, necessary rules and regulations governing the installation, construction, repair, and abandonment of water wells and pumping equipment. With respect thereto, it shall:

* * *

(3) Establish procedures and forms for the submission, review, approval, and rejection of applications, notifications, and reports required under this chapter;

* * *

(9) Perform such other duties as are consistent with the purposes of this chapter.

A.C.A. § 17-50-204.

In addition, the Commission is given express authority to establish specific rules and regulations for licensure. This authority is granted in A.C.A. § 17-50-305, which states:

(a) The commission may adopt, and from time to time amend or repeal, rules and regulations governing applications for water well contractor licenses. The commission shall license as a water well contractor any person properly making application therefor on a form prepared and furnished by the commission.

A.C.A. § 17-50-305(a).

Finally, the Commission is authorized to suspend or revoke the license of anyone who is not in compliance with the Commission's rules and regulations. See A.C.A. § 17-50-308. If the Commission can suspend or revoke a license for the licensee's failure to obtain continuing education as required by a Commission rule or regulation, it stands to reason that the Commission may decline to renew a license for the same reason.²

My conclusion regarding this matter is bolstered by the stated legislative purpose of the Arkansas Water Well Construction Act (A.C.A. § 17-50-101 et seq.) The General Assembly stated that the purpose of this Act was to provide for the development of ground water resources in a manner that would protect the general health, safety, and welfare, by requiring that such development be conducted in cooperation and under the regulation of the State. See A.C.A. § 17-50-102. By entrusting the Water Well Commission with the task of administering such regulation, the General Assembly implicitly granted the Commission the authority to determine that the general health, safety, and welfare would be best protected in accordance with the stated purpose of the Act through a requirement of continuing education for licensees.

Assistant Attorney General Suzanne Antley prepared the foregoing opinion, which I hereby approve.

Sincerely,

WINSTON BRYANT Attorney General

WB:SBA/cyh

¹ Your question uses the term "license renewal," and does not indicate whether you are also inquiring about "certificate" renewal. It is my opinion, based upon the reasoning expressed in the body of this opinion, that the Commission has authority to establish rules and regulations requiring continuing education as a condition for annual certificate renewal.

² The Commission must, of course, afford the licensee an opportunity for notice and a hearing on the issue of suspension or revocation. See A.C.A. § 17-50-308(a). The same due process requirements would likely be held to apply to a decision by the Commission to decline to renew a license for failure to obtain continuing education.