Properties divided into parcels that creates one or more parcels with an area less than 35 acres are considered subdivisions. The developer, or property owner, must complete the county subdivision process to create these parcels before any of the lots can be sold, and the county will require the developer to design a water supply plan. Often a property owner simply wants to break off a small parcel of their property and sell that lot as raw land. Unfortunately, breaking off even one small lot creates a subdivision, and the property owner is required to complete the county subdivision process. The water supply plan must show that water will be available physically and legally to all of the parcels being created. The most common water source for homes, outside of municipalities, is groundwater obtained from on-lot wells.
If all of the newly created lots are more than 35 acres, the development is considered a division of land, rather than a subdivision. Each of the 35+ acre lots in a division of land will most likely qualify for exempt well permits from the Division of Water Resources with no requirement to obtain other water rights or replacement water. Typically, the lot buyers obtain their own well permit (currently $100) and hire a driller to construct their well. For these developments of 35 or more acres, the water supply plan is often a simple statement that the lot owners will obtain individual well permits to construct a well on their lot. Subdivisions that were created before 1972 are grandfathered in this ability to obtain exempt well permits.
Parcels of land created after 1972 that are less than 35 acres are not eligible for exempt well permits. Therefore, the water supply plan is more complicated and usually requires an analysis of surface stream depletions that will be caused by pumping from the wells in the subdivision. If those stream depletions cause injury to senior water rights, the water supply plan must show that the developer has replacement water available to offset the injury in time, place, and amount. The developer will usually buy this replacement water from someone who owns water in an upstream reservoir or from a water rights holder on the stream. In larger subdivisions with many lots, the developer may find it less expensive to implement a central water supply system with only one well and a system to pipe water to each of the lots. However, as with on-lot wells, the developer must obtain replacement water to offset depletions caused by pumping the central supply well.
Water rights are adjudicated in court by a judge, and a replacement plan, as described above, requires judicial approval. A property owner, or developer, should obtain the services of a good water rights attorney to guide him through these legal proceedings and a water resources engineer to write the details of the water supply plan that shows the water requirements of the subdivision and the surface stream depletions that will result from pumping groundwater to serve the subdivision.
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