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Policy Memorandum 1990-1 Page 3 of 4 December 11, 2023 CONSIDERATIONS Et BACKGROUND FOR POLICY MEMO 1990-1 PROBLEM Section 37-92-602(5) provides for the recording and permitting of wells exempted by section 37-92-602(1)(c) which were put to use prior to May 8, 1972. Production from such wells must not exceed 15 gpm with the use limited to drinking and sanitary facilities in individual commercial businesses. The statutes do not define drinking and sanitary facilities or the types of businesses, nor do they provide a limit on the annual diversion. These shortcomings leave the staff without clear guidelines as to whether a welt qualifies for recording and has resulted in inconsistent application of the statutes. DISCUSSION The apparent intent of the referenced statute is to recognize certain existing uses of groundwater as having a minimal effect on other water rights and to exempt those uses from administration in the priority system. Many wells may fit the statutory definition of section 37-92-602(1)(c), but the actual use of the water does not fall within the legislative intent of minimal effect on water rights. The size of the business and the number of people served must be considered in evaluating these applications. The adoption of a volumetric standard seems appropriate to implement the statute. Similarly, it is unclear what uses were intended to be included in the definition of drinking and sanitary facilities. Drinking fountains and restrooms in an office building clearly meet the definitions. It is less certain whether the use of water for cooking and dishwashing in restaurants, for motets, for lodge and convention complexes, and for veterinary and kennel facilities falls under the statutory intent of drinking and sanitary facilities. The number of businesses to be served by one exempt commercial well has also been questioned. The statute is unclear whether the use is limited to one business and whether the businesses must be located in one building. Placing a limit on the amount of water diverted should remove these questions. It should not matter whether 10 people work in one business or two and whether the businesses are located in one building or not. Another issue needing to be addressed is whether a well historically used for non-exempt purposes can be recorded for a lesser amount meeting the definition of an exempt well. If this claimed exempt use was a portion of the historical use of the well, the effect of the welt on other water rights would be lessened and would not differ from that of any other well meeting the standards established in this policy. Therefore, only the claimed and future use of the well and not the total historical use, needs to be considered in evaluating applications to record exempt commercial wells. On occasion, the question is asked if more than one exempt well can be used to serve the same business. The use of more than one exempt well serving the same commercial property would create the potential for greatly increasing the diversion of groundwater. This would be contrary to the intent of section 37-92-602, which pertains only to certain small uses of groundwater. To qualify for recording or permitting of an existing well, the well must be the only exempt well serving the business for drinking and sanitary purposes.