Times Are Changing

More state and federal bills covering groundwater are being introduced around the country.

By Ben Frech

It’s estimated that private water wells provide water for more than 30 million Americans nationwide.

These wells, largely in rural areas and small towns, are a major part of the U.S. water infrastructure, and for the most part, free from state and federal regulations that govern public water systems.

At the same time, most private water well owners currently receive little to no support from the state and federal governments to maintain their water systems or test and treat their water. For decades, the agreement between private water well owners and their respective governments has boiled down to “Don’t bother us and we won’t bother you.”

But this agreement seems to be changing.

An analysis of state legislatures across the country has seen an increasing number of new laws and policies surrounding private wells and the water they produce. According to a presentation from the National Conference of State Legislatures (NCSL), there were eight states that introduced bills concerning private water wells in 2022, and as of March 2023, there are now more than 15 bills being considered in 15 states.

Water Quality Concerns

While every state in the country has some form of regulation on the drilling and construction of water wells, that’s not the focus of these new bills. These are laws that range from mandatory testing of water quality, programs to fund water testing, and financial support for private well owners to drill or rehabilitate wells.

These laws focus on water wells after they’ve been drilled and connected to a home. They’re becoming more and more common.

The water produced from private residential wells is currently under no federal jurisdiction and not subject to the sweeping regulations of the Clean Water Act, which protects the quality of most of America’s drinking water. This is because these systems are indeed private, meaning they are not supported or paid for by tax dollars.

Logistically, it would also be incredibly difficult for federal and state governments to monitor and enforce such regulations on millions of private wells.

But as the threat of emerging contaminants such as PFAS (per- and polyfluoroalkyl substances) and PFOA (perfluorooctanoic acid) has steadily grown over the last decade, it has forced state regulators and state legislators to reexamine their role in protecting and regulating water supplies. According to the NCSL’s analysis, there were 75 bills introduced in statehouses in 2018 concerning PFAS and emerging contaminants. The number exceeded 200 in 2022.

While most of the statewide PFAS legislation introduced focuses on public water systems and funding to test and remediate PFAS, states with large numbers of private wells have also begun to see an increased interest in protecting well owners from contaminants.

“The recent influx of water wells legislation can be attributed to one of many factors, particularly the growing concern over the quality and safety of drinking water, especially in rural areas where private wells and groundwater are commonly used,” says Jordan Kari, the government affairs manager for the Water Quality Association.

“Additionally, in recent years, there has been an emphasis on testing and detection of drinking water contaminants through U.S. EPA actions such as the Unregulated Contaminant Monitoring Rule (UCMR) and incidents of contamination and pollution of groundwater.”

For example, the “Act to Protect Massachusetts Public Health from PFAS” was introduced in February, which would help fund point-of-entry (POE) and point-of-use (POU) water remediation systems for private well owners who have detected PFAS in their systems. Similar legislation has been introduced in Wisconsin, North Carolina, Maryland, and New York this year.

U.S. Senator Tammy Baldwin (D-Wisconsin) introduced last year the Healthy H2O Act which would create a national program operated through the U.S. Department of Agriculture that would aid private water well owners in testing and treating their water supply. Like many of the state programs, the Healthy H2O Act would focus largely on providing access to POE/POU water remediation technology to well owners.

“POE/POU drinking water treatment systems are cost-effective, efficient, and can play a crucial role in addressing some of the issues related to well water contamination,” Kari adds. “Consumers should look for technologies certified to NSF/ANSI standards to treat the specific contaminants found in their water and might have to combine technologies or take additional steps.”

Outside of legislation, there has also been a new focus on what is commonly known as “polluter pays” litigation stemming from states. These lawsuits typically claim a certain company is responsible for widespread water and soil contamination and seek damages to remediate pollution.

The states of Arizona, Minnesota, New Hampshire, and Michigan have all pursued such “polluter pays” suits in recent years with special carve-outs for private water well owners to test and treat their water supplies.

3M Co. came to an $850 million settlement with the state of Minnesota to help remediate PFAS pollution. It included providing water testing and carbon filters for private water well owners.

The Heavy Hand

The increase in statewide legislation and programs to assist private well owners have mostly steered clear of any type of draconian regulations or penalties for water well owners who do not test and treat their water.

It may surprise many readers that according to a 2019 study by the National Institutes of Health (NIH), 46% of all states already have some sort of water quality regulations on their books concerning private wells.

This probably comes as a surprise, though, because the NIH also points out that few of the regulations are mandatory and most are not enforced outside of those centered around real estate transactions.

Most new water quality regulations, such as those in Connecticut and New Jersey, have focused only on the quality of water wells at the point of the sale of a home. These point-of-sale regulations aim to increase transparency and ensure the well’s health to new homeowners. They are also some of the most feasible and affordable ways to oversee water quality in wells.

As mentioned earlier, besides the philosophical debate around whether private wells should be regulated by the government, it’s close to impossible for states to do so in any real way.

When considering the number of man-hours, capacity of labs for water testing, political backlash, and the public cost it would take to regulate private water systems—it’s likely never going to happen on a wide scale.

Still, the landscape governing private wells is changing, and by all measures, changing quickly. In the coming years, it will be more important than ever for groundwater professionals to monitor these changes in their states and local communities and engage with their elected officials on the impact of new laws and policies.

The groundwater industry should be active in providing advice and guidance to lawmakers on the reality of how private water wells work and insight into the habits of private well owners while urging these lawmakers to use the industry’s expertise when creating new legislation.

Groundwater professionals should also look at these new rules as opportunities to expand their business offerings in new directions such as water quality testing and POE/POU installation.

Promote new policies that help both your businesses and the health of your customers, and first and foremost, don’t fear the changes that are around the bend. As famed CEO Jack Welch once said: “It’s best to change before you have to.”

Ben Frech is the public affairs and regional public policy manager for the National Ground Water Association. He can be reached at bfrech@ngwa.org.