Opinion No. (1978) ( 1978 )

REQUESTED BY: Mr. John W. Neuberger, Director, Department of Water Resources. Is it necessary for a person to obtain a permit from the Department of Water Resources prior to the construction of a new water will to be located in a Ground Water Control Area when the well will be ``developed and pumped as a single unit' together with a presently existing well or with another well to be newly constructed?

Yes, unless the wells developed and pumped together as a single unit are intended to be used solely for domestic purposes and the combined pumping capacity of the wells does not exceed one hundred gallons per minute.

In 1975, the Nebraska Legislature enacted the Nebraska Ground Water Management Act, sections 46-656 to 46-674, R.S.Supp., 1976. The primary intent of the Act was to grant to natural resources districts and to the Director of the Department of Water Resources such powers and authorities as were deemed necessary to implement management practices to conserve groundwater supplies in areas where ground water levels are declining.

Under the provisions of section 46-658, R.S.Supp., 1976, the Director of the Department of Water Resources is authorized to designate an area as a ground water control area if he determines that there is an inadequate ground water supply to meet present or reasonably foreseeable water needs. If the Director designates an area as a control area, then a person intending to construct a new water well in the control area must obtain a permit from the Department of Water Resources prior to the commencement of construction. Section 46-659, R.S.Supp., 1976. A permit is required for all new wells used for domestic purposes which will exceed a pumping capacity of one hundred gallons per minute and for all other wells used for other than domestic purposes. Section 46-657(3), R.S.Supp., 1976.

Section 46-659(1), R.S.Supp., 1976, provides, in pertinent part:

"Any person who intends to construct a well in a control area in this state shall, before commencing construction, file with the director an application for a permit or forms provided by the director. . ."

The intent of this section is clear. Each person who intends to construct a new well in a designated control area must file an application for a permit with the Director prior to commencing construction of the well. ``Construction of a well' is defined in section 46-657(4), R.S.Supp., 1976. It provides that ``construction of a well' means: ``. . . boring, drilling, jetting, digging, or excavation, and installing casing, pumps, and other devices for withdrawing or facilitating the withdrawal of ground water; . . .' By its terms, section 46-659(1), R.S.Supp., 1976, does not exempt any new well construction from its permit requirements. However, a limited exemption is found in the definitional section of the Act, section 46-657, R.S.Supp., 1976.

Section 46-657(3), R.S.Supp., 1976, provides a definition of the term ``well':

"Well shall mean any artificial opening or excavation in the ground through which ground water flows under natural pressure or is artificially withdrawn. A series of wells developed and pumped as a single unit shall be considered as one well. For purposes of sections 46-659 to 46-662, well shall not mean any artificial opening or excavation in which a pump of less than one hundred gallons per minute capacity is to be installed and which is to be used solely for supply of ground water for domestic purposes;. . ." (Emphasis added.)

As the above statute indicates, a person constructing a well with a capacity for pumping less than one hundred gallons per minute and which is to be used solely for domestic purposes does not have to obtain a permit prior to constructing the well.

The last sentence of section 46-657(3), R.S.Supp., 1976, provides the only exemption from the permit requirements of section 46-659(1), R.S.Supp., 1976. If the new well will have a pumping capacity of over one hundred gallons per minute then the person constructing the well must apply for a permit even though the water obtained from the well is to be used solely for domestic purposes. In addition, a person intending to construct a well to be used for other than domestic purposes must always apply for a permit, regardless of the pumping capacity of the well.

The portion of section 46-657(3), R.S.Supp., 1976, which has caused you to ask our opinion as to this matter is the provision which states that:

". . . A series of wells developed and pumped as a single unit shall be considered one well. . ."

The question essentially raised by this section is whether or not it was intended to exempt a person from applying for a permit to construct a new water well when the well is intended to be developed and pumped as a single unit together with another well. In order to answer this question, an analysis of the legislative history of this provision of section 46-657(3), R.S.Supp., 1976, must be made.

A review of the legislative history reveals that this provision was inserted in section 46-657(3), R.S.Supp., 1976, to prevent a person from drilling a series of small wells for domestic use of less than one hundred gallons per minute pumping capacity in order to escape the requirement of applying for a permit. As noted above, under section46-657(3), R.S.Supp., 1976, a person who constructs a well with less than one hundred gallons per minute pumping capacity to be used for domestic purposes does not have to apply for a permit as required by section 46-659(1), R.S.Supp., 1976. Thus, without this provision treating a ``series of wells developed and pumped as a single unit' as a single well for purposes of section 46-659(1), R.S.Supp., 1976, a person could construct a series of five wells for domestic use with a pumping capacity of ninety gallons per minute each and avoid applying for a permit altogether. What this provision essentially does is to treat the five wells as one well with a pumping capacity of 450 gallons per minute, thus requiring the person constructing the five wells to apply for a permit.

It must be noted that this provision of section46-657(3), R.S.Supp., 1976, only applies to wells with under a hundred gallon pumping capacity and which are to be constructed solely for domestic purposes. If a well is intended to be used for other than a domestic purpose or use, then the person who is constructing the well must always apply for a permit, regardless of the pumping capacity of the well.

In conclusion, unless a well which is developed and pumped together with another well as a single unit is to be used solely for domestic purposes and the combined pumping capacity of the wells does not exceed one hundred gallons per minute, a person must always obtain a permit from the Department of Water Resources prior to commencing construction of the well.