Thirty states have laws or judicial decisions on their books that could be used to require mandatory hookup to public water systems – even if homeowners currently use their own private water wells.
Private wells in rural and suburban areas provide water for 40 million Americans every day.
“Local governments should have a public purpose for such laws and regulations,” says Jessie Richardson, a lobbyist for the Water System Council, a national organization that promotes private water wells. Most government officials would say that such regulations are designed to protect the public health and that wells aren’t safe.
“Wells are safe,” Richardson adds. “The reason has more to do with taxes and generating other government revenue.”
Although states may have such laws, it doesn’t necessarily equate with local governments having such ordinances. But for anyone associated with the water well drilling industry, even just the idea isn’t the best news.
Can they do that?
The council says you first need to figure who “they” are. That’s no easy answer. You basically need a class in constitutional law to sort it out. The U.S. Constitution grants states any power not delegated to the federal government by the Constitution or prohibited by it. States create and define local governments, but states also can delegate concerns over health and safety to local governments.
In short, local governments must receive permission from the state to pass mandatory connection laws.
From there, you’ve got the local government telling private well owners that they have no choice but to hookup to a public water system. So far, courts have upheld all state laws on mandatory connections, but have struck down some local ordinances.
The council just released a report that gives a state-by-state breakdown, including the District of Columbia, on the matter. Here are some highlights:
- Twenty state legislatures, including the District of Columbia, mandate connections to public water lines. Only two states, Missouri and New Hampshire, have statutes protecting a landowner’s right to a private water well - and then, only in some circumstances.
- Ten more states have state court decisions that mandate connection to public water lines. Three of these state court decisions, Michigan, Montana and New Mexico, defer to home rule, which essentially grants greater freedom to local government. In other words, without home rule, courts would have been more likely to strike laws.
Keep in mind, the mandatory hookup issues also apply to sewer lines, too. Thirty-eight states, for example, require a mandatory hookup to public sewer lines. Only one state, Missouri, prohibits mandatory hookup for water or sewer.
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