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