Agreement form - test hole and/or observation well drilling on private property UNITED STATES DEPARTMENT OF THE INTERIOR GEOLOGICAL SURVEY WATER RESOURCES DIVISION Washington 25, D. C. In reply refer to: April 6, 1954 Code No. 45014 GROUND WATER BRANCH MEMORANDUM NO. 54.39 To: Staff Advisors and District Supervisors From: Chief, Ground Water Branch Subject: Agreement form - test hole and/or observation well drilling on private property A number of agreements for the construction of test holes and maintenance of observation wells on private property, requiring a small remuneration, are processed each year. A Water Resources Division Circular, dated June 4, 1952, on the subject of Contracts - Railroad and private property, presented an agreement for construction and maintenance of a gaging station on private or state property which could be adapted for Ground Water Branch use, as an agreement for test hole or observation well drilling on private property. It is suggested that this Water Resources Division Circular be reviewed by Ground Water Branch Personnel. The attached agreement form has been prepared as a modification of the 1952 form. Up to the present, most of our agreements or licenses for the use of land for test hole drilling, and/or observation well maintenance have been made on a variety of forms, many of which have been inadequate for various reasons. These agreements or licenses are easily revocable in many cases, as a matter of law, by the licensor or owner, and are nonbinding upon his successors. Short-term agreements often defeat the requirement of long-term water-level records necessary to establish sound averages. Therefore, field personnel should make every effort to obtain agreements for periods of time long enough to serve the purpose of the programs for which the land-use agreement is being sought and ascertain, where possible, whether the landowner is likely or not to revoke the agreement or transfer the land, through sale or death, to persons who would not re-execute the agreement. This is particularly important because there is no legislative authority for the acquisition of permanent rights to the use of land for test holes and/or observation wells, as is the case with the special legislative authority to acquire by donation, purchase or condemnation, easements for stream gaging purposes. Paragraph 7, you will note, provides for automatic renewal of the agreement by the Survey for each successive fiscal year. Unless the owner is notified in writing to the contrary by June 30 of any year. The reason for this is the Comptroller General's decision of October 12, 1928 (A-24745) regarding the lack of authority to use land for stream gaging purposes for a longer period of time than one fiscal year in the absence of legislative authority to the contrary. However, landowners should be informed that the chances of such termination for lack of annual appropriation act authority are very remote. Paragraph 7 need not be included if a given test hole or well is not going to be constructed, maintained and used for longer than one fiscal year. A draft form of an agreement approved by the Chief Counsel's office is attached for your reference. It is not intended that this agreement form should be entirely inflexible. A small number of landowners may object to certain provisions in the agreement. In such event, a modified version of the agreement in a form considered suitable by the Survey representative should be prepared for signature by the landowner, and subsequent consideration by Washington office. If the modified version is satisfactory, it will then be transmitted to the Director for signature. If not, it will be returned to the field office with suggestions for further modification. Inasmuch as certain parts of this agreement may be necessarily modified to meet local conditions, or changes may be required as a result of additional experience in the use of this type of agreement, it is not planned to reproduce this form. Rather it is expected that, for the present, the district office will type copies as needed, based on this form. Certain parts of this agreement are discussed more fully below: A. In Paragraph 1 the entire definition of a test hole or an observation well should be crossed out if not applicable to the agreement. B. Paragraph 2 requires a drawing of the location of the property. This drawing should be constructed in a manner acceptable for legal needs and have all pertinent data pertaining to the well or test hole site clearly referenced on the drawing. C. Paragraph 3 and 4 are self-explanatory and, of course, need the required insertions where indicated. D. Paragraph 5 has been written especially to conform with the Survey's authority and responsibility under the Federal Tort Claims Act. Many agreements now being used over-extend or inadequately express this authority and responsibility. All new agreements, therefore, should be modeled after paragraph 5 of the attached draft. If this wording is not satisfactory to the private owner, the specific case and suggested wording should be submitted through the Washington office for consideration by the Chief Counsel. E. Paragraph 6 covers the amount of payment. It is thought that a one dollar payment will suffice for many situations, but there is no objection to a higher consideration, where the occasion seems to demand it, as long as it is a reasonable amount. Using the old common rate of one dollar per year for comparison, it would seem entirely reasonable to pay $20 or $30 for an indefinite license, which in all probability will run for 20 or 30 years. The highest recorded amount paid to date is $300 for a permanent easement for a gaging station on unusually valuable land. Most permanent easements have cost less than $100. F. Paragraph 7 involves a time element to be agreed upon. Field personnel should attempt to get long-term (10, 20 or more years) agreements established whenever it is to the advantage of the particular program. Such long-term agreements save much of the administrative costs involved in making renewals, and as noted above help prevent serious interruptions in valuable water-level records. It may be desirable, if the length of the program is indefinite, to write into paragraph 7 wording which sets an indefinite term or period of time. In connection with the 30 day notice of termination you will note that only survey is given such express privilege. This is for the purpose of discouraging revocation of the agreement by the owner since much time, money, and information may be lost if the owner should want to revoke the agreement at his convenience. G. Paragraph 8 and 9 are self-explanatory. If an agreement is prepared in the district office of the Survey, it may be signed by the District geologist or engineer before submission to the owner, although this is a matter for individual decision. In any event, the agreement does not become binding on the Survey until approved by the Director, as noted in Paragraph 11, and this should be clearly understood by the owner. Agreements, signed by the owner and the head of the Survey district office, should be submitted to the Washington office in quadruplicate, retaining a fifth copy for the district file. If it is desired to have the district file copy signed, the agreement should be submitted to the Washington office in quintuplicate. When only four copies are submitted, the district office will receive only one completely signed copy after approval by the Director. This copy will be the contractor's or owner's copy and will have the Interior contract number stamped upon it. This contract number should be recorded in the district office, as it must be shown on the voucher for payment due the owner. Although certain landowners are entirely willing to grant oral permission for the Survey to construct and use facilities on their property, but are wary of signing specific agreements granting this privilege, it is urged that every effort be made, as a matter of good business practice, to obtain a signed agreement. For this reason the agreement has been kept as simple as legal requirements permit, yet maintaining safeguards against serious damage to established and future test hole and observation well programs. (s) A. N. Sayre Chief, Ground Water Branch