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Opinion 97059

DATE: November 25, 1997

SUBJECT: Water Well Registration Fees

REQUESTED BY: J. Michael Jess, Director, Department of Water Resources

WRITTEN BY: Don Stenberg, Attorney General

Marie C. Pawol, Assistant Attorney General




You have inquired whether the Department of Water Resources is

authorized to collect a supplemental registration fee in the event

that a water well's pumping capacity is increased after the date of

its original registration. You note that the initial well

registration assessments are based upon a well's estimated pumping

capacity.




We are of the opinion that a water well owner who subsequently

increases a well's pumping capacity, such that the capacity

corresponds to a higher registration fee category, may be required

to re-register the well and pay the difference between the higher

fee and the initial registration fee already paid.




Neb. Rev. Stat. § 46-606 (Cum. Supp. 1996) requires the

Director of the Department of Water Resources to collect a

registration fee of $30 for each water well required to be

registered under section 46-602, with specified exceptions.

Additionally, the department is directed to collect an additional

fee set by the Water Well Standards and Contractors' Licensing

Board. Neb. Rev. Stat. § 46-1224(4) (Cum. Supp. 1996) authorizes

the board to set a fee of not less than $25 and not more than $40

for wells designed to pump less than fifty gallons per minute, and

a fee of not less than $40 and not more than $80 for water wells

constructed to pump fifty gallons per minute or more. The fees

established by the Water Well Standards and Contractors' Licensing

Board are to be "calculated to recover the costs incurred by the

department and the board in administering and carrying out the

purposes of the Water Well Standards and Contractors' Licensing

Act." Neb. Rev. Stat. § 46-1224 (1) (Cum Supp. 1996). Subsection

4 of § 46-1224 also directs that "[t]he fees shall be remitted to

the Director of Water Resources with the registration form required

by section 46-602. . . ."




You note that an inequity arises at present whenever a water

well owner initially pays a lower fee, but then subsequently

increases the well's pumping capacity. You have also expressed

concern that funding to carry out the purposes of the act could be

jeopardized should this occur with any frequency.




The referenced statutes do not specifically provide that a

water well owner is required to submit a revised registration form

or a supplemental fee in the event that the well's pumping capacity

is later increased. Neither, however, do the statutes preclude the

department from collecting an additional fee and requiring a

revised registration form in such cases in order to properly

administer and carry out the purposes of the relevant legislation.

The Legislature has identified a well's pumping capacity as the

determining factor in deciding what fee should be assessed. Given

this focus, it could be argued that when a well owner increases the

pumping capacity of a well, a new well comes into existence.


Neb. Rev. Stat. § 46-1226 (1993) authorizes the department,




with the advice and consent of the board, [to] adopt and

promulgate rules and regulations for the administration

of the Water Well Standards and Contractors' Licensing

Act. The department shall be responsible for the

administration and enforcement of such act and any

standards, rules, or regulations adopted and promulgated

by the department or board pursuant to such act. The

department shall consult with the board in carrying out

the departmental duties under such act for (1) conducting

examinations, (2) issuing, denying, refusing renewal of,

suspending, or revoking licenses or certificates, and (3)

collecting fees.




The legislature may delegate to an administrative agency the

power to make rules and regulations to implement the policy of a

statute, but this delegated authority is limited to the powers

delegated to the agency by the statute which the agency is to

administer. Clemens v. Harvey, 247 Neb. 77, 525 N.W. 185 (1994).

An administrative body has only that authority specifically

conferred upon it by statute or by construction necessary to

achieve the purposes of the relevant act. Southeast Rural

Volunteer Fire Dept. v. Nebraska Dept. of Revenue, Charitable

Gaming Div., 251 Neb. 852, 560 N.W.2d 436 (1997); In re Application

A-16642, 236 Neb. 671, 463 N.W.2d 591 (1990); Cornhusker Christian

Children's Home, Inc. v. Department of Social Services of State of

Neb., 227 Neb. 94, 416 N.W.2d 551 (1987). In order to be valid, a

rule or regulation must be consistent with the statute under which

the rule or regulation was promulgated. State ex rel. Spire v.

Stodola, 228 Neb. 107, 421 N.W.2d 436 (1988).




If necessary to properly carry out the purposes of the Water

Well Standards and Contractors' Licensing Act, the department is

authorized--with the advice and consent of the board--to promulgate

regulations for the re-registration of wells and/or the collection

of an additional fee for water wells whose pumping capacity is

subsequently increased. Of course, any additional fee assessed

must be within the limits established by statute. In our view,

such a rule is not inconsistent with the statutes conferring powers

to the department, and further serves the purposes intended by the

legislature.




Sincerely,




DON STENBERG

Attorney General




Marie C. Pawol

Assistant Attorney General