Unwell Water: Legal Silence, Private Wells, and Public Health in the Rural Americas

Open PDF in Browser: Shavonnie R. Carthens,* Unwell Water: Legal Silence, Private Wells, and Public Health in the Rural Americas

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While the majority of United States residents rely on public water systems, over 43 million people use private water systems for their drinking water. United States Geological Survey research found that one in five private well samples were contaminated at levels that could negatively affect health. Contaminants such as germs, chemicals, and radionuclides contaminate wells and other private drinking water sources. Yet, private drinking water systems are federally unregulated and not covered by the Safe Drinking Water Act. Similarly, states have limited regulations for private drinking water wells, leaving individual well owners solely responsible for monitoring the quality of their water. This legal silence disproportionately burdens rural residents, who rely on private wells for drinking water in greater numbers than their urban and suburban counterparts. This Article argues that deficits in the Safe Drinking Water Act, state law, and local law create regulatory gaps that directly exclude private well owners from needed protections. Relying on a definition of public health law that requires interactions among government power and nongovernmental partnerships, this Article recommends a multilayered approach that centers state and local governments in remediating safe drinking water issues faced by private well users. This approach requires: (1) engagement with nongovernmental partners, (2) increased state regulation of private well water, (3) collaborative local policy with attention to vulnerable populations in the “rural Americas.”

Introduction

Cathy Cochrane sourced her drinking water from a private well on her property in a rural area of Cowlitz County, Washington, until she discovered the well contained arsenic levels 64 times above the legal limit for public drinking water.^[1] Like many households, the Cochranes had never tested their well for contaminants, and, unfortunately, the Cochranes’ testing came only after Cathy received a stage four ovarian cancer diagnosis.^[2] For Cathy, her medical diagnosis and the state of her well water led her to question whether there was a causal connection between arsenic levels in the well water and her cancer.^[3] Cathy Cochrane’s cancer battle is a harrowing reminder that clean water is essential for life, promoting public health, and decreasing the risk of water‑borne diseases.^[4]

Drinking water in the United States is among the safest in the world, though safe drinking water is a relatively recent global development.^[5] Cathy Cochrane is not alone—in other areas of the country, such as in North Carolina, one in four residents rely on private wells for drinking water, the highest number of households in the nation.^[6] There have been significant improvements in water quality in the United States, primarily due to the enforcement of United States Environmental Protection Agency (EPA) standards for public water systems. However, not everyone can enjoy the benefits of regulated, safe drinking water.

Nationally, it is estimated that 23 million households (over 43 million people) rely on unregulated (i.e., not covered by the EPA) private water systems for drinking water,^[7] leaving private wells more vulnerable to contamination than public water systems.^[8] Contaminants such as germs, chemicals, or radionuclides^[9] can contaminate wells and other private drinking water sources.^[10] Studies show that 15 percent to 50 percent of wells fail to meet at least one safe drinking water standard applied to public water systems.^[11] One survey suggests that one in five private wells is contaminated at levels that could affect health.^[12] Furthermore, a study conducted by the United States Geological Survey (USGS) found that 23 percent of 1,400 private wells surveyed contained at least one Safe Drinking Water Act (SDWA) contaminant at concentrations exceeding the maximum contaminant level (MCL) or health‑based screening level (HBSL).^[13]

This research suggests that private well contamination is a public health crisis. To be clear, water contamination poses environmental risks that endanger public health. Just as infectious diseases detrimentally impact population health, environmental ills, like pollution, also cause disease and death.^[14] In recent decades, environmental health has become a key focus of public health in the United States, and governments regulate activities that impact the environment largely due to public health concerns.^[15] For example, Congress indicated that the passage of SDWA was motivated by concern for the health of the American people.^[16] However, the lack of regulation of private drinking water wells is a public health issue that exposes millions of households to waterborne microbes and chemicals, causing acute and chronic illness.^[17] Rural communities are more likely to be disconnected from public water systems^[18] and experience a heightened risk of exposure to an amalgamation of groundwater contaminants that can lead to gastric problems, cancer, and preterm births.^[19]

Lead exposure is an example of an environmental health risk posed by private wells.^[20] Exposure to lead in air, water, and soil can elevate blood lead levels, which can harm the brain, kidneys, and cardiovascular system.^[21] Vulnerable populations are disproportionately burdened by these risks. For instance, children are more vulnerable to higher lead levels because, per kilogram of body weight, children drink more water, eat more food, and breathe more air than adults, thereby increasing their exposure to environmental toxins.^[22] Those with chronic exposure to higher lead levels are also likely to have lower IQ scores.^[23] But namely, rural communities overall are particularly susceptible to health risks from contaminated private wells.

In rural communities in Appalachian Kentucky, residents struggle to access clean drinking water. Many rely on private wells, which can be sources of harmful illnesses, including gastrointestinal illnesses and outbreaks.^[24] This struggle to access safe drinking water is just one symptom of the widening health disparities between rural and urban communities. Individuals in rural communities have historically experienced poorer health than those living in urban areas,^[25] and the mortality gap has been particularly pronounced.^[26]

Additionally, rural communities suffer from urban‑rural environmental injustices that have public health consequences. Examples of such consequences include the fallout from human activities such as energy production and agriculture.^[27] For instance, industrial hog operations in North Carolina transitioned from widespread farm presence across the state to a focus on rural areas of the coastal plains region.^[28] These farms have caused air and water pollution, even spreading hog waste into neighboring communities.^[29]

It should be noted that people who rely on private wells are found across various “rural Americas”^[30]—the landscape of those most impacted by contaminated private wells is complex, diverse, and layered. As such, different forms of government intervention may be best suited to different geographic and sociodemographic contexts.^[31]

Unfortunately, relief from the law is limited and has not provided adequate protection. The SDWA does not provide regulatory oversight for private water systems, such as private wells. Given that many private wells are in rural communities,^[32] these communities, in all their variations, are excluded from federal protections.^[33] Similarly, state law and local policy often provide little relief. In some jurisdictions, “Ag‑Gag” laws remain in effect, limiting efforts to educate the public, many of whom live in rural areas, about the dangers of water pollution.^[34]

This Article makes two contributions to the literature. First, it illuminates public environmental health risks that threaten millions of U.S. residents who rely on private wells for drinking water. Second, this Article addresses the lack of private well regulation as a threat to public health and proposes legal mechanisms to address contaminated drinking water in distinct areas across the rural Americas. Specifically, this Article argues that deficits in the SDWA, state laws, and local policies create regulatory gaps that directly exclude private well owners from the protections they need. The health of private well water users requires closing this gap. This is especially urgent in vulnerable rural communities where health disparities related to geographic location, socioeconomic status, biological vulnerability, and race and ethnicity vary. There is a need for responsive legal and equitable remedies.

This Article recommends a multilayered approach to address this legal void, placing the onus on state and local governments to remediate safe drinking water issues faced by private well users. Part I offers a brief history and background on the growth of water systems in the United States. Part II details sources of contamination of private wells and the resulting health risks. Part III surveys the legal and policy environment of private well regulation, as well as the lack thereof. Part IV recommends a unique approach for addressing this public health crisis focused on requirements such as: (1) engagement with nongovernmental partners, (2) increased state regulation of private well water, and (3) collaborative local policy with attention to vulnerable populations in the “rural Americas.”

History and Background of Drinking Water Systems in the United States

Drinking water quality is a national conversation, prompted by public awareness of the drinking water crises in Flint, Michigan,^[35] and Jackson, Mississippi.^[36] However, public health concerns about water quality began to surface in the mid‑1880s, as growing recognition emerged that water was a vector for diseases such as typhoid and cholera.^[37] In the late nineteenth century, cities and towns considered how to address water quality issues amid the growing population during the Industrial Revolution.^[38] A movement then developed to create systems for supplying safe water and managing wastewater to address public health concerns.^[39] By 1850, there were 83 public water systems and 50 private water systems in the United States, with the number of public systems increasing to 136 by 1866.^[40]

Throughout the early twentieth century, state and local governments created and expanded public water systems without giving much consideration to water quality and safety. Notably, federal involvement in this discussion was largely absent.^[41] During that period, the state and local focus centered mainly on creating and extending public water systems rather than ensuring quality and safety.^[42] Congress first responded to concerns about water quality by passing the U.S. Public Health Service Drinking Water Standards in 1914, which prohibited the use of common cups on interstate commerce carriers.^[43] States began adopting similar standards to ensure water safety and to promote the chlorination of public water systems.^[44] In the 1940s environmental groups raised new concerns around contamination from human activities and pushed Congress to consider greater action.^[45]

In the 1970s, the EPA began investigating the standards that should govern all public state and local water systems in the United States to improve water safety and quality.^[46] The passage of the Safe Drinking Water Act (SDWA) brought safe drinking water to households throughout the United States.^[47] According to the EPA, more than 90 percent of water customers under the SDWA have drinking water that meets all health and safety standards at all times.^[48] States participate in implementing the SDWA, and some have developed their own drinking water standards.^[49]

Clean public water is a modern marvel for millions of American residents. The mandates created by the SDWA have dramatically improved access to high‑quality drinking water. However, the overall history of water improvements should not obscure the fact that public water systems received most of the legal benefits, leaving private well systems on their own, and arguably, at a disadvantage.^[50] Sadly, this public health crisis that plagues millions of private well users has not garnered the same attention as the crises in Flint and Jackson, which depend on public water systems. These private water systems are comprised mainly of a private domestic well that serves only one household.^[51]

Figure 1. Picture of Well System Serving One Household^[52]

The image above visually captures the focus of this Article—private, nonpublic wells used for drinking water and domestic purposes, essentially serving a single household.^[53] Such systems are not covered by the SDWA because they fail to meet the “public water system” definition of “serving at least 25 people for at least 60 days a year with at least 15 service connections.”^[54]

Consequently, the improvements that have strengthened protections for public drinking water have not been extended to a patchwork of private drinking water sources.^[55] These sources primarily exist outside public knowledge and are not subject to federal and state regulation. For example, while many are aware of lead in public drinking water in Flint, Michigan, lead levels in private wells are similarly alarming.^[56] As noted in a study in Wake County, North Carolina, lead levels in kitchen tap water from private wells were similar to those observed during the Flint water crisis.^[57] Accordingly, private wells are susceptible to contamination at levels that are disturbing,^[58] but these privately owned domestic wells^[59] remain a vital water source for many.^[60]

The nation’s growing reliance on public water systems has led to neglect of private well safety—both in the national conversation on drinking water safety and in federal, state, and local regulatory priorities.^[61] As urban density has increased, the proportion of people relying on domestic wells has decreased.^[62] Southern states exhibit the largest decrease in private well use, likely due to population increases in areas served by public water supplies.^[63] Perhaps urban migration has led to the unfounded belief that private well usage is a thing of the past. However, 12 percent of the U.S. population relies on unregulated private wells, most of whom reside in rural areas.^[64] Although rural communities have experienced population declines,^[65] they remain most likely to rely on private wells and face significant health risks from consuming contaminated water.^[66]

Figure 2. Picture of Private Domestic Well Use per Square Kilometer^[67]

The USGS notes the presence of private wells across the United States, as seen in the Figure above,^[68] with wells serving populations in rural areas in the North and Southeast.^[69] Without federal regulation, the safety of these private well water remains uncertain.^[70] Surprisingly, even when sources of contamination are outside their control, private well owners are solely responsible for ensuring the quality of their well water and testing for contaminants.^[71]

Sources of Private Well Contamination and Health Risks

Private water system data provide insights into similarities between the types of contamination that exist in private wells and public water systems. Public water systems and private wells may be at risk from the same kinds of contaminants, chemicals, radionuclides, and microbiological sources that degrade water quality.^[72] Among public water systems, the Center for Disease Control (CDC) categorizes contaminants as microbiological (e.g., E. coli, giardia, salmonella), chemical (e.g., arsenic, lead, nitrates), and radiological (e.g., radon, radium, uranium).^[73] These contaminants can lead to benefits, annoyances, or health‑related risks. For example, some fluoride present in water can be beneficial, but excessive fluoride intake can lead to skeletal fluorosis and an increased risk of fractures in adults.^[74] “The most commonly occurring pollutant chemicals are volatile organics and pesticides, which may be identifiable in more than one third of . . . wells” in the United States.^[75]

The presence of waterborne illnesses is often underrecognized and underreported; however, data indicate that these diseases frequently stem from groundwater sources, such as private wells.^[76] According to the EPA, outbreaks associated with private wells increased between 1971 and 2008.^[77] This increase in outbreaks among private well systems was linked to a lack of federal, state, and local regulations governing well installation and monitoring.^[78] Within that period, various studies confirmed the concerning rates of contamination in private well water. For example, in the 1990s, coliform^[79] contamination in private home wells in Iowa reached 27 percent.^[80] Additionally, according to the CDC, there were 31 waterborne disease outbreaks (more cases than expected)^[81] from 2005 to 2006, with 8 of the 20 waterborne illnesses originating from private wells.^[82] Lastly, a study of sampled principal aquifers in the United States (1991–2004) found that about one in five wells were contaminated with at least one chemical at levels that could affect health.^[83] Specifically, this study found that inorganic compounds—such as nitrates—were the contaminants most often found at levels exceeding targets for human health.

Many factors, including well type and location, geographic region, and groundwater pollution, influence the type and extent of contamination. The resulting health risks are analogously broad in scope. Understanding these foundational concepts establishes the groundwork for this Article’s multilayered approach.

Sources of Private Well Contamination

There are several factors that impact potential well contamination and thus result in detrimental health consequences. This Section details how wells may become contaminated based on their structure and placement, natural conditions, and pollutants entering the water source.

Well Type and Location

The type of well, whether drilled or dug, impacts water quality and affects the possibility that contaminants may be present. Private wells, which serve one household, are a simple piece of infrastructure consisting of a well, a pressure system, and a tank, dug at the owners’ expense.^[84]

Figure 3. Comparison Between Dug and Drilled Wells^[85]

As seen in the Figure above, dug wells are typically shallow, ranging from 10 to 30 feet deep, with a pump located in a nearby pump house or within the dwelling.^[86] These types of wells are mostly located on old home sites, meaning they were commonly dug prior to legislation related to well construction,^[87] are prone to contamination, and may be unreliable.^[88] Specifically, shallow private wells are more susceptible to contamination from the land surface or from shallow underground sources of contaminants, such as septic tanks.^[89] Risks to well water safety also derive from leaks from underground fuel tanks, fertilizers or pesticides, runoff from industrial sites, naturally occurring chemicals, and animal waste.^[90]

Unlike dug wells, drilled wells are 100 to 400 feet deep and reach the Earth’s bedrock.^[91] Most of these wells have an electronic submersible pump at the water’s surface.^[92] Because the water is filtered on the way down and is mostly safe in the aquifer, these deeper wells are less susceptible to contamination.^[93]

Waste systems near the well can also impact toxic exposure, especially for private domestic wells, which are often shallow, dug wells.^[94] Wells located near pollution sources are more likely to be contaminated.^[95] According to the EPA, many of the country’s septic systems and private wells were installed before the 2006 Groundwater Rule (GWR), which established septic tank density standards.^[96] The EPA passed the GWR to address the health risks associated with using groundwater as a primary water source.^[97] The GWR recognized the adverse health impacts associated with consuming groundwater contaminated with fecal matter and microorganisms that can live in septic tank sewage.^[98] Consequently, closeness to septic systems and well contamination is significantly correlated.^[99]

Geographic and Regional Contamination

Private well contamination, particularly that associated with geologic formations, varies from region to region. Even within a state, regional and geographic differences can impact the quality of water from wells, and some areas may experience high levels of contaminants caused by natural geological formations or soil composition.^[100] Geographic variations in groundwater quality are primarily attributed to geological differences among regions.^[101]

For example, according to one Pennsylvania study, coliform bacteria were the most common contaminant in the state’s southeastern region.^[102] In terms of natural composition, southeast Pennsylvania experiences short‑term fluctuations in soil moisture, which explain the presence of E. coli and coliform bacteria.^[103] Of the tested wells, 20 percent failed to meet the recommended drinking water standard for pH and exhibited increased lead levels, with these issues most prevalent in the southeastern region of the state.^[104] Further, differences in pH in the southeastern region of Pennsylvania can be attributed to the presence of igneous rock, which has a lower pH than other rock types, located in the southern part of the state.^[105] As another region‑specific example, nitrate and coliform bacteria were most common in southern Wisconsin, with coliform peaking during late summer.^[106] Conversely, levels of iron, manganese, copper, and aluminum were most prevalent in the northern part of the state.^[107]

Additionally, arsenic is the most toxic and common contaminant in well water,^[108] occurring naturally in some groundwater, and originating from the soil and bedrock surrounding aquifers.^[109] Though this geogenic, naturally occurring arsenic is a global public health concern,^[110] groundwater in rural areas of the northeastern United States is especially likely to contain arsenic.^[111] The metal is highly prevalent in the region’s rock formations.^[112] A USGS study’s measurements of public wells noted that states in New England and the western and south‑central United States have a high occurrence of arsenic.^[113] Similar to public wells, privately owned wells in this region have widespread occurrences of this metal,^[114] raising concerns about their health‑related toxicity.^[115] Between 1986 and 2001, arsenic was detected in 51.4 percent of 7,580 domestic wells nationwide, with 10.6 percent of wells exceeding the EPA’s maximum contamination standard for public wells.^[116] The examples from Pennsylvania, Wisconsin, and New England highlight the significant role that geographic region plays in determining the presence and concentration of contaminants in private well water.

Groundwater Source Contamination

Groundwater is the source of drinking water for approximately half of the United States.^[117] For private wells serving a single household, groundwater is the source of supply for most of these wells.^[118] Groundwater is found beneath the Earth in aquifers composed of layers of gravel, sand, and rock.^[119] Private wells bring groundwater to the surface by drilling into the aquifer and extracting the water.^[120] The sources of groundwater may be broadly contaminated with toxic metals, such as arsenic and lead, and may also be affected by structural deficiencies, including corrosion that leaches into private wells from pipes and plumbing fixtures.^[121] Such contamination of toxic metals is alarming because, for example, even at low levels, arsenic is an environmental health issue.^[122] Furthermore, lead in drinking water originates from these corrosive distribution systems.^[123] Lead poisoning via drinking water persists from various sources,^[124] including lead leaching from water lines.^[125] Although lead exposure has decreased by 95 percent since the 1970s, people today have lead body burdens 10 to 100 times higher than those of people who lived before industrialization.^[126]

Man‑made chemicals and human activities, such as those associated with animal agriculture, can also contaminate groundwater. Animal agriculture can cause pathogens from farm animals to enter groundwater used for drinking, particularly when wells are not properly constructed.^[127] Plant and animal wastes can release nitrates,^[128] which are also released through the use of industrial fertilizers.^[129] It is well‑documented that groundwater nitrate levels are 3 to 60 times higher in agricultural areas in the United States,^[130] which are most often found in rural communities.^[131] These concentrations were historically even more significant in rural communities relying on domestic wells, where 9 to 39 percent of domestic wells test above the nitrate MCL.^[132]

Flooding is also a source of prolonged contamination of private wells.^[133] Flooding increases the speed and duration of heavy groundwater flow and may cause groundwater to change direction,^[134] thus bringing contaminants to wells and springs.^[135] Specifically, flooding may lead to the increased presence of microbial contamination and waterborne pathogens.^[136] Research shows that contamination rates among private wells increase after flooding.^[137] Runoff from the rainfall can wash microorganisms into the well, or these contaminants may be absorbed underground.^[138]

What is clear is that private wells can become contaminated in several ways, including through geological formations, proximity to septic systems, groundwater contamination resulting from human activities, and flooding. These sources of contamination pose numerous risks to public health.

Public Health Risks from Private Well Contamination

Issues of drinking water quality plague many households in the United States that source their drinking water from private water systems.^[139] Increased exposure to waterborne contaminants can be detrimental to human health, as discussed next, focusing on three major sources relevant to private well users: nitrates, arsenic, and lead.

Higher rates of nitrates have been detected in well water and exposure is linked to various health worries.^[140] When humans consume nitrate contaminants, the interaction between the nitrates and blood may lead to biochemical‑induced anemia, gastrointestinal difficulties, and issues affecting bones, muscles, and nerves.^[141]

As mentioned above, health complications also arise from exposure to elevated levels of arsenic in groundwater. The National Water-Quality Assessment (NAWQA) Project groundwater database estimates that 1.7 million Americans may drink from wells with arsenic levels above the federal MCL of 10 parts per billion (equivalent to 10 μg/L), and 3.8 million from wells with greater than 5 μg/L.^[142] Exposure to arsenic in drinking water, even at low to moderate levels, is a significant environmental health issue,^[143] as reflected by the National Research Council (NRC) in its arsenic risk assessment, which underscored the threat of arsenic‑induced cancers such as bladder and lung cancer.^[144]

The risk of lead exposure is equally significant for households with children that rely on private wells.^[145] The EPA estimates that waterborne lead may account for 20 percent of total lead exposure in adults and up to 60 percent in infants who drink formula.^[146] Children who consume unregulated water have a 25 percent increased risk of elevated lead levels in their blood compared to children who consume public water.^[147] Investigators in North Carolina found that children in houses with private wells had blood lead levels 20 percent higher than children served by regulated public water utilities.^[148] These results persist even when researchers control for age, sex, year of home construction, year of blood test, race, socioeconomic status, and neighborhood characteristics.^[149]

There is both a widespread risk of contamination from private wells and the possibility that this contamination poses significant public health risks. The survey that follows captures the legal and policy efforts to address contamination and public health hazards associated with drinking water from private wells.

Legal and Policy Environment of Private Well Drinking Water

Despite considerable understanding of the health risks associated with poor water quality, very little is known about the actual water quality of private wells, which operate within a limited regulatory environment.^[150] Private wells are exempt from the SDWA.^[151] Additional federal provisions beyond the SDWA tangentially affect private well water and offer benefits to private well owners. There are also state and local laws that directly regulate the safety, construction, access, and water quality of private wells.

This Part offers a broad overview of the legal environment governing drinking water in the United States, including legal interventions that encompass, touch, or specifically target private wells. It then introduces actions taken at the state, federal, and local levels to address potential health impacts associated with using private wells for drinking water. Lastly, this Part surveys existing proposals to address the lack of regulatory oversight of private wells in the rural Americas.

Federal Law and Drinking Water Quality

Since the early 1970s, the EPA and the CDC have collaborated to address and minimize waterborne disease outbreaks.^[152] Most notably, the SDWA has significantly improved water quality in the United States.^[153] Congress enacted the SDWA in response to concerns about the public health impacts of waterborne illnesses, the development of public water systems, and the expansion of wastewater services across the United States.^[154] Such extensive growth necessitated a regulatory framework to ensure that public utilities provided safe water to consumers at affordable prices. Today, the SDWA is the key law governing drinking water, authorizing the EPA to set and enforce drinking water standards for contaminants in both privately and publicly owned public water systems.^[155] Under the SDWA, the EPA’s power to regulate drinking water to protect public health also includes oversight of water used for domestic purposes, such as cooking, bathing, and maintaining oral hygiene.^[156]

Much of the monitoring efforts under the SDWA are delegated to states, creating an interwoven system that ensures standards are maintained and enforced.^[157] To ensure compliance, public water systems must report monitoring results to their respective states, which in turn review and conduct their own monitoring.^[158] The EPA reviews reports of violations submitted by the states to ensure compliance with the SDWA.^[159] If an event poses a threat to public health, states have 24 hours to notify the EPA, and the EPA has the authority to intervene if state or local authorities fail to act.^[160]

Concerns have arisen regarding the ability of state governments to enforce the SDWA’s requirements and implement measures to identify new contaminants that pose a threat to public health.^[161] If public systems face compliance issues, private well systems without federal or state oversight pose even greater public health concerns. Case in point, Nevada does not regulate domestic private wells.^[162] Some Nevada wells were contaminated with rates of heavy metals—including arsenic, lead, cadmium, and uranium—above EPA guidelines.^[163] Elevated levels of these metals persisted even after well owners implemented household treatments.^[164] If these were public water systems, the SDWA would allow for state awareness and legal interventions.^[165]

Private well owners are responsible for independently monitoring lead levels and maintaining their wells by ensuring corrosion‑control systems are in place and by replacing well components as needed.^[166] Private well owners must also manage their wells without access to the ever‑expanding data and science available to government entities. Because there are no standards for private wells, states or municipalities that regulate in this area often rely on SDWA standards for concentrations of contaminants that indicate potability.^[167] In this way, the SDWA may provide an ancillary benefit to private well regulation. However, states and municipalities may not have access to the scientific data that informs revisions to SDWA standards.

To their detriment, private well owners are not positioned to nimbly engage in data collection and adapt to scientific discoveries as government entities do. Furthermore, although the SDWA regulates 97 chemical groups and 12 microbial contaminants—only a small portion of the thousands studied—scientists have found that health risks from drinking water can occur at lower levels of chemical exposure than initially determined by earlier studies.^[168] This incomprehensive regulation means that the SDWA may not capture the full range of contaminant levels that can impact public health.^[169]

With such an understanding, this development of scientific knowledge is illustrative of the EPA’s need, under the SDWA, to account for emerging scientific knowledge identifying novel contaminants and to appreciate how lower chemical levels can have troubling health impacts.^[170] For example, in cases of heavy metal contamination, individual household testing and treatment efforts by private well owners may prove insufficient without access to specialized scientific expertise.^[171] In the Healthy Nevada Project study, some household wells initially found to contain elevated levels of heavy metals continued to exceed guidelines after treatment.^[172] Many treatment systems cannot reduce metal concentrations to levels within guidelines,^[173] and residents are unlikely to have the resources to access proven systems based on available scientific technologies. The responsibility for well upkeep and water quality maintenance falls dauntingly on private well owners, a highly burdensome reality for people living across the rural Americas.

Still, the mechanics of the SDWA may provide other benefits that touch private well owners. The implementation of the SDWA occurs through the promulgation and enforcement of rules. Several of these rules are discussed below, including the Ground Water Rule, the Revised Total Coliform Rule, the Surface Water Treatment Rule, and the Lead and Copper Rule.^[174] These rules do not specifically apply to private wells, but they improve the quality of water that may fill private wells.

The Revised Total Coliform Rule (RTCR) of 1989 was established to offer the EPA an indicator of pathogens in drinking water.^[175] Total coliforms are a group of related bacteria that are, for the most part, not harmful but can indicate the presence of other bacteria, parasites, and viruses that can have negative health impacts.^[176] The RTCR was revised in 2013 and 2014 to improve public health protections.^[177]

The EPA issued the Ground Water Rule (GWR) in 2006 to implement the SDWA section 1412 (b)(8)^[178]—which focused on disinfection of public water systems—in an effort to improve drinking water and protect against disease‑causing microbial pathogens in groundwater.^[179] The EPA relied on CDC data, which showed that between 1991 and 2000, groundwater systems were responsible for 68 waterborne disease outbreaks that caused 10,926 illnesses.^[180] The GWR does not cover all groundwater systems but targets groundwater systems susceptible to contamination by fecal matter.^[181] It was enacted due to recognition that “[t]he occurrence of fecal indicators in a drinking water supply is an indication of the potential presence of microbial pathogens that may pose a threat to public health.”^[182]

Fecal indicators such as E. coli, enterococci, or coliphage demonstrate that there may be a pathway for pathogenic viruses and bacteria to enter groundwater sources.^[183] Under the GWR, groundwater systems at risk of fecal contamination are required to take corrective action to reduce illnesses and deaths due to exposure to microbial pathogens.^[184] This rule addresses the gap in the RTCR^[185] requirements that did not address fecal contamination.^[186] The GWR also requires monitoring groundwater sources to identify contamination issues,^[187] acknowledging the important role that states play in addressing groundwater contamination.^[188]

The Surface Water Treatment Rule (SWTR) was also adopted to evaluate pathogens in drinking water that cause serious health issues.^[189] The SWTR applies to public water systems that use surface water sources or groundwater sources impacted by surface water.^[190] It establishes maximum contaminant level goals (MCLGs) for viruses, bacteria, and Giardia lamblia and requires water systems to filter and treat water for these contaminants.^[191]

The EPA also regulates lead in public drinking water systems via the Lead and Copper Rule (LCR).^[192] The EPA has revised this rule to include an important initiative to require sampling of homes served by leaded service lines.^[193] Again, private well owners are exempt from the LCR. To offer additional support to the SDWA, the Reduction of Lead in Drinking Water Act^[194] was enacted to amend the SDWA, address the potentially harmful presence of lead in drinking water, and redefine the meaning of “lead‑free.”^[195] These rules are designed to support the SDWA and may impact private wells to the extent that they ensure the safety of water sources shared by public and private water systems.

Other federal laws may benefit private wells, though they do not directly regulate them. For example, the Federal Water Pollution Control Act Amendments of 1972, also known as the Clean Water Act of 1972 (CWA),^[196] was enacted to address growing worry over the health of America’s waters.^[197] The CWA regulates discharges of pollutants into the United States navigable waters^[198] and sets quality standards for surface waters.^[199] Wetland protection is crucial for maintaining water quality, as wetlands filter water and absorb pollutants.^[200] To the extent that the CWA prevents or reduces the presence of contaminants that enter wells from surface or groundwater sources or wetlands, private well owners benefit from standards that impact water quality in those locations.

Federal laws provide a baseline for states to follow in their compliance and water protection actions. However, states may exceed federal requirements. Where the federal government is silent, as in the case of private well regulation, states may use their police powers to protect the health of private well owners.^[201]

State Law and Private Well Regulation

The final Part of this Article offers a multilayered approach that centers on the role of state law in addressing the public health crises posed by private wells. As an anchor for that discussion, this Section provides an overview of the current state regulatory environment. Currently, legal protections for private wells fall primarily to the states, stemming from their broad powers to regulate health, safety, and welfare.^[202] State policies vary substantially across the nation, and some states have crafted laws to address the safety of private wells, at times applying standards set by the SDWA.^[203]

States control private wells by regulating their construction, permitting, maintenance, groundwater quality, property sales, and rentals.^[204] Additionally, most states provide residents with information about private wells.^[205] States may also have specific private well programs that residents may opt to participate in.^[206] Approximately 74 percent of states offer a free public database that includes data such as well location, depth, and water quality information.^[207] Some states have robust groundwater laws, including California^[208] and Arizona.^[209] Local governments may also control access to groundwater through local “groundwater conservation districts.”^[210] Similar to the SDWA and related rules, these provisions may offer some support to private well owners. Connecticut has the most comprehensive list of policies related to private wells,^[211] with oversight in areas such as permitting, well location, and testing.^[212] The regulations in Connecticut evidence the state’s early recognition of the need to intentionally steward watersheds to improve water quality.^[213] The following sections detail the specific areas of state lawmaking in this area.

Construction, Permitting, and Maintenance of Private Wells

State regulations that relate to drilling or construction of new wells^[214] and well construction and management standards are essential for ensuring the safety of drinking water. Without these standards, wells may be susceptible to contamination by chemicals, bacteria, and parasites.^[215] Factors such as well age, design, construction, lack of maintenance, and location contribute to this susceptibility.^[216] Also, the year the home and well were constructed remains significant in studies measuring exposure to contaminants from private wells.^[217]

Wells with poor construction are twice as likely to be contaminated with coliform bacteria and five times as likely to harbor E. coli as properly constructed wells.^[218] Accordingly, most states have policies that address private well drilling or construction.^[219] Some states have regulations that address drilling, construction, or installation methods for private wells, focusing on well depth, dimensions, materials used, and the certification requirements for those who construct private wells.^[220]

States without laws regulating private well construction and management standards face a more troubling reality. One such state is Pennsylvania, where over three million residents use private wells.^[221] One Pennsylvania study found that almost 40 percent of the 701 water wells sampled failed at least one health‑based drinking water standard.^[222] Construction standards, coupled with routine testing, would improve drinking water quality in Pennsylvania and other states without well‑construction laws.^[223]

Permitting falls under the umbrella of state regulation of private wells.^[224] Permits may be required to drill or construct a new well,^[225] and states such as Wisconsin require testing when submitting permit applications.^[226] Likewise, Connecticut law requires the adoption of regulations to ensure that wells remain physically separate from the public water supply.^[227]

The North Carolina Well Construction Act is more comprehensive than Pennsylvania’s and Connecticut’s laws. It requires each county, through local health departments, to implement a system for private drinking water well construction, permitting, inspection, and testing.^[228] The Act requires those constructing private wells to obtain permits from the local health department prior to well construction and repair.^[229] Further, certified well contractors must install and repair wells.^[230] Wells are also required to be chlorinated^[231] after construction, in accordance with U.S. Public Health Service recommendations for sterilization.^[232] A substantial limitation of the North Carolina statute, and similar laws in other states, is that it applies to future construction and repair activities related to new wells but does not affect existing wells^[233] that are more susceptible to contamination.

After well construction, state law may also set forth requirements for continued well maintenance^[234] on the part of the well owner, the driller, or the state agency.^[235] State agencies may reserve the right to inspect wells and possess the authority to test wells for water quality.^[236] There are also policies that address the decommissioning of wells or sealing wells that have been abandoned to prevent possible contamination.^[237] However, the existence of policies regulating private wells does not guarantee they will be enforced.^[238] In fact, in states where there are water quality standards, testing may be infrequent.^[239]

Testing for Contaminants and Water Quality

While many states regulate well construction, fewer regulate water quality or require routine testing. Most private wells in America have never been subject to a testing requirement.^[240] Only thirteen states have enacted legislation requiring water quality testing for private wells.^[241]

One reason for the minimal regulation of private well water quality is geography: In large geographic areas, routine testing may be impractical.^[242] Instead, it may be more feasible to require testing once a new well is completed and before real estate transactions.^[243] Oregon law demonstrates this pragmatic approach by requiring testing during real estate transactions.^[244] The Oregon Domestic Wells Testing Act requires that, when a real estate sale or exchange includes a well that supplies household groundwater, the seller must test the water for arsenic, nitrates, and total coliform bacteria.^[245]

Oregon’s approach^[246] exemplifies the unique ability of states to act in response to population needs.^[247] Oregon tests for “total coliform bacteria” because most coliform bacteria do not cause disease, but their presence suggests that other pathogens, like E. coli, could be present.^[248] This total coliform test looks for other bacteria commonly found in soil, surface water, and plants, as well as fecal coliforms.^[249] The seller must share the results with the buyer and the Oregon Health Authority within 90 days of receiving the test results.^[250]

While this legal move by Oregon is encouraging, it has clear limitations. The Domestic Well Testing Act does not include two necessary components: (1) a means of funding support and (2) an enforcement mechanism.^[251] Because the Act lacked an enforcement mechanism, well water has not been consistently tested during real estate transactions.^[252] Consequently, though Oregon has some regulation of real estate sales involving lands with private wells, there is no guarantee that buyers are protected.

In addition, approximately 5 percent of test results are shared with the Oregon Health Authority, even when testing is conducted.^[253] Another limitation of this legislation was that it did not require a certified person or organization to collect the samples,^[254] which may have undermined the validity or quality of the testing results. The most glaring gap in this legislation is that it only applies to real estate transactions, which means that the private wells inherited as “heirs property”^[255] would not be included in the testing mandate.^[256] Heirs property owners represent the diversity across the rural Americas, as heir property is often found among African American, Native American, and Appalachian communities.^[257] These owners typically reside in impoverished communities and are vulnerable to losing their property rights.^[258] Those who inherited the property could remain unaware of the dangers of drinking from their family’s private well.

Similar to Oregon, Rhode Island also requires testing during real estate transactions through its Office of Private Well Water Contamination.^[259] Pursuant to Title 23 of the Rhode Island General Laws, property owners are required to disclose the results of previous well testing before the sale or lease of property.^[260] Under this law, regulations and procedures are to be developed to establish drinking water quality standards for private wells. These regulations must: (1) identify contaminants to be tested, and acceptable levels of each contaminant; and (2) require testing parameters for coliform bacteria, fluoride, iron, lead, manganese, nitrate, nitrite, and turbidity of all private wells in service or capable of being placed in service, prior to sale of the property where the well is located.^[261] This statute requires the disclosure of results of prior well testing before the sale or lease of the property where the well is located or serviced.^[262] Additionally, municipal building officials require guidance on what constitutes potable (or safe) private well water and the contamination levels that pose a public health concern, to issue a certificate of occupancy and make recommendations for further testing.^[263] The law also requires protocols for emergency responses to private water contamination.^[264] This Rhode Island provision provides necessary protections to private well owners in the context of property sales or leases.^[265] However, many of the properties, as mentioned, are inherited or older and exist outside of the requirements. In short, many private well owners are still left without regulatory shelter.

Still, a positive aspect of requiring testing in real estate transactions is that research demonstrates that those who have purchased homes since 2002 were more likely to include pregnant women and children.^[266] As such, required testing would reduce their exposure to arsenic’s toxic effects.^[267] For example, New Jersey Private Well Testing Act (PWTA) requires testing for arsenic in real estate transactions; arsenic levels were five times higher for study participants who fell under the PWTA than those who were not, even among respondents located in the same area.^[268] This suggests that legally required testing is helpful in providing more accurate arsenic levels. However, beyond those wells that fall under the PWTA, many were constructed or sold prior to 2002 and are not regulated.^[269] This category of homes also experiences lower rates of home turnover, meaning that many will never fall under PWTA protections,^[270] similar to heirs property under Rhode Island law.^[271]

Connecticut law requires testing prior to the sale, transfer, or rental of property served by a private well. Testing of well water includes using parameters that test for “coliform, nitrate, nitrite, sodium, chloride, iron, [lead,] manganese, hardness, turbidity, pH, sulfate, apparent color, odor, arsenic, and uranium.”^[272] Again, Connecticut law also uses real estate transactions to regulate private wells. Namely, one portion of the law provides: “Prior to the sale, exchange, purchase, transfer or rental of real property on which a private or semipublic well is located, the owner shall provide the buyer or tenant notice that educational material concerning private well testing is available on the Department of Public Health web site.”^[273] What is important in the statute is the requirement that buyers receive educational materials. The educational material is intended to put the buyer or tenant on notice that testing is available. Though literacy can be impactful, it lacks the force of required testing and disclosure of results.

The Connecticut local health authority is then charged with determining whether the test results exceed the maximum contaminant levels under Connecticut law.^[274] This provision is important because it imposes standards specific to Connecticut. In this instance, any legal action taken hinges on a comparison with standards set for public water systems (i.e., SDWA standards).^[275] Notably, the certificate of occupancy will not be withheld based on private well water quality unless the test results from a private well exceed the maximum contaminant levels for public water systems for contaminants listed by the state of Connecticut.^[276]

There are also laws that require a landlord to disclose test results when there is a well on the property they are leasing.^[277] However, only 6 percent of U.S. states have a policy addressing renting property serviced by private wells.^[278] Local governments may have policies even when states have legislation addressing private wells. As will be discussed later, there are certainly times when local governments are best positioned to respond to resident needs.

Attempts to enact state law interventions are often stalled by a lack of enforcement measures, creating a legal silence with serious public health implications. In Oregon, where the law requires well testing during real estate transactions, there is no penalty for noncompliance.^[279] The sale may proceed without providing the necessary disclosures and reporting.^[280] Further, this law is disclosure‑based rather than corrective, as Oregon’s legislation does not require remediation to ensure well water safety.^[281] Conversely, there are states like Maine that require reporting but not testing.^[282] This encourages sellers to avoid possibly reporting disturbing results to buyers by deciding not to test in an environment where studies revealed that 14 percent of private wells in two Maine towns were found to have arsenic levels that exceed EPA standards.^[283] Due to regulatory gaps, such as the lack of remediation in Maine’s law and the missing enforcement measures in Oregon’s law, it is necessary to consider how to bring private wells under legal protection.

Despite the tapestry of federal and state laws that improve water quality in private wells, many gaps in this regulatory framework continue to leave private well water susceptible to contamination. The discussion below highlights legal recommendations from scholars and policymakers to address gaps in private well water quality protections.

Limitations to Existing Legal Interventions

Public health and legal experts have suggested various approaches to alleviating the legal and health‑related ills experienced by private well owners, including extending public water systems, enacting legislation requiring testing and maintenance of private wells, and strengthening regulation of groundwater quality. Additionally, litigation falls short of addressing the health issues that can arise from drinking unregulated well water for a variety of reasons. This Section explores some of those proposals and litigation strategies as precursors to revisions noted in the multilayered approach for addressing the legal silence around private wells left by federal, state, and local law.

Extending Public Water Systems

One proposal to address the private well crisis is to extend public water systems to reach those intentionally, incidentally, or self‑excluded. Extension of public water systems—through governmental mandates or by allowing private well owners to tap into these systems—would afford these individuals the opportunity to access public systems and reap the benefits of the regulatory cover provided by the SDWA. Such an extension of public water systems would bring many households within the drinking water standards for a wide range of contaminants, potentially provide grant funds for local infrastructure, and add transparency to drinking water standards.^[284] Though such an extension seems promising, there are limitations to this popular proposal.

Underlying this proposal is an assumption that extending public water systems to capture private well users would improve health outcomes. This assumption may be flawed given the weaknesses in the infrastructure of some public water systems, which will be discussed. When compared with the costs of extending them, there are doubts about the true health benefits of connecting private wells to these systems. First, public water systems may not deliver water better than what is available via private wells. For example, not all public water systems follow SDWA standards.^[285] A 2015 study by the National Resources Defense Council reported over 80,000 violations of the SDWA, including health standards violations and state monitoring and reporting violations.^[286]

Second, water availability limitations in some areas of the country may complicate the expansion of public water systems to new users. In the past several decades, population growth and climate change have stressed public water supplies.^[287] It is projected that regional water availability may decrease due to rising air temperatures and moderate decreases in precipitation.^[288] Additionally, water supply crises, such as those seen in the American Southeast, further strain the maintenance of public water systems.^[289]

Third, extending public water and sewer systems is extremely costly.^[290] For example, according to the Indian Health Service, providing universal public access to the Navajo Nation would cost around $200 million.^[291] Similarly, in lower‑income communities in West Virginia, extending public water systems would require $17 billion to modernize their decaying water and sewer systems.^[292] So, although these systems exist, the goal of improving public health via drinking water might not be realized by extending public water systems to capture private well households. One would not want to open an option to private well users that might result in increased individual cost without the benefit of healthier drinking water.

Further, regulatory standards, some of which were developed in the 1980s and 1990s, may not meet current standards for toxicity testing.^[293] There may be defects in current standards for testing the full range of potential chemical contaminants that could reach underground aquifers.^[294] This is important when evaluating whether extending public water systems could reduce health harms for private well owners. MCL levels set by the EPA and used by states and localities establish minimum water quality standards for public municipal systems while balancing health risks with costs and available technologies.^[295] If additional contaminants are not discovered by public water systems, those risks would also continue to go undetected if private well households are absorbed into public systems.

It should be noted that extending private water systems would also require landowners’ participation, which may raise privacy concerns.^[296] This is illustrated in Town of Ennis v. Stewart, discussed further in Section IV.C.2., where the plaintiffs challenged the town’s requirement that landowners connect to the town’s water system prior to the sale of property served by a private well.^[297]

Required Testing, Monitoring, and Mitigation

Theoretically, the simplest legal option is to enact laws and policies requiring private well owners to periodically test and treat or repair their wells. However, this option could disadvantage private well owners who cannot afford the costs of testing or remediation. Still, it is important to explore this possibility. Public water systems use water treatment to protect customers, but private well owners are not included in these services,^[298] and testing is an underutilized preventative option.^[299] Routine testing could reveal contamination and allow for a range of testing options to be implemented.^[300] In fact, testing is the only way to identify concentrations such as arsenic in individual wells.^[301]

The first step in identifying potential health risks in a private well is to check for structural issues.^[302] Structural issues, such as a broken pump or pipe, would require replacing the faulty part.^[303] Assuming there are no structural issues, one should proceed with testing and treating the well. The well owner would then begin chemical treatments, such as shock chlorination.^[304] Unfortunately, these treatments are only a first‑line option available to the well owner and might prove ineffective.^[305] An ineffective first‑line chemical treatment could severely disadvantage the well owner, as the specific contaminant may not be resolved by standard municipal water treatment.^[306] This underscores one challenge to placing the complete burden on the well owner.

If the bacterial contamination is not corrected by this first‑line shock chlorination water treatment, professionals should assess the situation to look for other factors.^[307] A professional may pinpoint the source of contamination—whether it is located on the homeowner’s property or adjacent property—and look for contaminants from pesticide application, use of nitrogen‑containing fertilizers, or other sources.^[308] While it is possible to filter out or treat a broad range of chemical or biological contaminants,^[309] these measures can become involved and expensive, requiring continuous professional interventions and, as such, placing additional burdens on many private well owners.^[310] Much of this cost would be borne by individual homeowners, but governments could provide support. More than 14 states have programs that offer financial support or technical assistance to replace, reconstruct, or treat private wells.^[311] While these programs are available, they are voluntary, meaning that private well owners must bear the time costs of finding and using these financial support channels. As such, these funds may not be used, and private well owners will continue to use contaminated wells that pose human health risks.^[312]

Regulating Groundwater Quality

Other interventions involve looking deeper than the infrastructure of public water systems by examining the quality of water pumped into well‑reliant homes, specifically the groundwater in the aquifer below the well. Groundwater is water found below the topsoil and above bedrock.^[313] When this water collects and saturates bedrock and soil it forms an aquifer.^[314] Private wells, whether dug or drilled, are deep enough to pump from the aquifer, even as its water levels fluctuate.^[315] Where aquifers are the source of public water systems and private wells, state groundwater protections could positively impact both public and private water systems.^[316]

State laws regulating private wells vary across jurisdictions, but state water quality regulations often exclude them.^[317] States are in the best position to address maximum contamination levels in groundwater.^[318] States can lean into this authority by raising MCL levels for certain widespread contaminants and targeting contaminants known to affect residents’ wells. For example, New Jersey adopted a state law in 2004 that established an arsenic MCL of 5 μg/L—lower than the EPA’s limit of 10 μg/L.^[319]

The Minnesota Department of Agriculture’s (MDA) Groundwater Protection Rule offers another model of state protection that supports testing proposals.^[320] This rule attempts to resolve nitrate contamination like that caused by commercial fertilizer.^[321] Although this Minnesota law is primarily intended to combat threats to public water systems,^[322] it also provides an ancillary benefit to private well owners.^[323] However, even with evidence of unsafe nitrate levels in 10 percent of private wells,^[324] the MDA does not regulate these wells. Earlier versions of the rule acknowledged the need to cover townships where more than 10 percent of private wells were contaminated,^[325] resulting in a statewide ban on commercial fertilizer application in the fall and on frozen ground in vulnerable areas.^[326] Unfortunately, the final rule was revised to reduce requirements due to limited resources and the large area covered, creating a parallel gap to what exists at the federal level.^[327]

States like Kentucky have attempted to address regulatory gaps through programs such as the Kentucky Wellhead Protection Program^[328] and the Source Water Assessment Protection Program, which target water supplies at their source.^[329] These programs require identifying areas that contribute to water sources, reviewing these water sources’ susceptibility to contamination, and developing strategies to manage contamination.^[330] Although the Wellhead Protection Program was created to protect groundwater, in keeping with the 1986 Amendments to the SDWA, private wells that draw from similar sources may collaterally benefit from this program.^[331]

Many groundwater toxicity issues stem from corrosive distribution systems. To address such problems, corrosion inhibitors^[332] can be added to water supplies or older lead‑based implements. Further, replacing plumbing can be helpful.^[333] For example, lead in drinking water can originate from distribution systems and indoor plumbing.^[334] The Lead and Copper Rule provision of the SDWA requires community water utilities to monitor lead levels in drinking water.^[335] These utilities must replace lead service lines, optimize corrosion control if more than 10 percent of the samples exceed standards, or do both. Ultimately, the source of groundwater contamination may not stem from the landowner, but well users are still responsible for mitigating the source of contamination.^[336]

4. Agricultural Interests

There are other limitations that impede states and localities’ ability to regulate private wells to improve public health. Though local governments may take action to address drinking water safety, they may face preemption challenges and limits on their ability to regulate water, as seen in the context of right‑to‑farm (RTF) laws.^[337] RTF laws may limit public awareness of groundwater contamination caused by industry‑related activities.^[338] In some jurisdictions, “Ag‑Gag” laws remain in effect, limiting efforts to educate the public, many of whom live in rural areas, about the dangers of water pollution.^[339]

These dangers include contaminants such as nitrates, phosphates, and pesticides that leach into groundwater from livestock farming, industrial wastewater, and the application of fertilizers, pesticides, and slurries to agricultural land.^[340] Notably, some states with significant agricultural presence rely heavily on groundwater. In Alabama, more than 50 percent of residents use groundwater for drinking water, and 20 percent rely on private wells.^[341] Research suggests that those who rely on shallow wells are especially susceptible to nitrate contamination from agricultural activities.^[342]

Scholars writing on state law find that RTF laws fall short of protecting rural property owners’ air and water, and actually enable industrial operators to pollute the properties of local residents.^[343] These laws may also preempt local governments from taking action to support the environmental rights of local property owners, particularly those related to ecological protections and zoning.^[344] In short, these laws may hinder rural residents’ ability to sue agricultural operators by limiting the scope of their claims and providing an affirmative defense against private and public nuisance claims arising from their operations.^[345] As an example of an RTF law, Maryland’s state law protects traditional agricultural operations such as livestock, grain, fruit, and forestry.^[346] The presence of RTF laws demonstrates limitations on residents that leave openings for state and local governments to offer additional remedies. A more direct legal response to agricultural water pollution would be a mechanism for states to address conflicts between industry land ownership and well owners’ rights. One tactic to resolve this conflict is for state and local governments to partner with organizations outside of the government, as discussed below.

Individual Rights and Litigation by Private Well Owners

In Part IV, this Article surveys a multilayered approach for addressing the health crises of private wells in rural America. Before exploring those layers, it is crucial to establish the property interests and right of self‑determination of private well owners. Building on those rights, litigants have sought to use the courts to reinforce individual private rights and to address limited protections at the federal and state levels against drinking water contamination. Given the diversity in private well ownership and the regulatory environment, there is no single legal approach that will capture all well‑reliant households. This Article rejects the idea that the only option is to require private well owners to enforce their rights through time‑consuming and costly litigation, or to force the closure of private wells and require private property owners to join public water systems. There are benefits and drawbacks of using litigation to combat private well contamination.

Caselaw provides examples of successful litigation strategies that may not fully resolve health concerns arising from private wells. For example, in Benoit v. Saint‑Gobain Performances Plastics Corp., individuals filed a public nuisance action against past and current owners of a manufacturing facility for contaminating water, raising health and safety concerns for their private well.^[347] The plaintiffs brought claims against the defendants for the effects of perfluorooctanoic acid (PFOA)^[348] on their health and property.^[349] The plaintiffs also alleged that the defendants failed to notify them of contamination in a timely manner.^[350] The defendants argued that the presence of PFOAs in the plaintiffs’ blood was not sufficient to constitute the physical injury needed under the law.^[351] Citing Caronia v. Philip Morris USA, Inc.,^[352] the defendants argued that the plaintiffs did not allege physical injury or property damage but instead claimed a threat of future harm, which was insufficient for a tort claim.^[353]

Notably, the New York courts held that a claim of negligence is appropriate where the defendant did not exercise due care, such as engaging in polluting activities, including pollution of underground waters.^[354] The court concluded that the defendants’ argument misapplied Caronia^[355] and that allegations of future physical injury may be demonstrated by the clinical presence of toxins in the plaintiffs’ bodies, thereby sustaining a claim for personal injury. Therefore, the plaintiffs would be entitled to consequential damages and the costs of medical monitoring.^[356] The court found that seepage of chemical waste into the water justifies a public nuisance action if a private person can show they suffered special injury beyond that experienced by the community at large.^[357]

Like Benoit, in Ryan v. Greif, Inc. the plaintiffs also alleged the defendants contaminated groundwater by releasing PFAS.^[358] The plaintiffs cited findings from both the EPA and the Massachusetts Department of Environmental Protection pointing to the health impacts of PFAS.^[359] Health impacts include kidney cancer, ulcerative colitis, infertility, impaired child development, high cholesterol, liver issues, and hormonal imbalances.^[360] The court found that the plaintiffs sufficiently alleged a causal nexus between the defendants’ facility and contamination of plaintiffs’ drinking water.^[361] For the purposes of this Article, the takeaway from these two cases is that individual land owners are willing to defend interferences with their property and disturbances to their private wells. Hence, governmental attempts to completely usurp private ownership rights over the wells on that land—even if intended to reduce contamination—are not a sound idea.

This tension between private rights and well regulation is also noted in Blackburn v. Miller‑Stephenson Chem. Co. There, plaintiff Barbara Blackburn filed a six‑count complaint alleging that defendant Miller‑Stephenson Chemical Company contaminated her well supply.^[362] The plaintiff alleged that the defendant’s facility, which packaged volatile organic compounds, polluted her private well.^[363] As proof, she submitted soil samples collected by the Connecticut Department of Environmental Protection, which revealed that the soil was contaminated with five different compounds, including benzene^[364] and trichloroethane,^[365] at levels that exceeded state standards.^[366] The plaintiff further alleged that the Commission of Health and Human Services determined that the benzene levels in well water could reasonably cause an unacceptable health risk when used for drinking water.^[367] Therefore, the plaintiff argued that the defendant, as the facility owner, had a duty to use the facility reasonably and that the defendant knew or should have known the activities would result in soil and groundwater contamination.^[368] The court found that the plaintiff sufficiently alleged claims for statutory costs associated with the discharge of pollution and violations under the Connecticut Environmental Protection Act, as well as a claim for trespass.^[369]

Ultimately, it is evident that individual private well owners are invested in the land, their private rights, and self‑determination on the land. Actions to safeguard these rights come with rewards and difficulties. On the one hand, enforcing private rights through litigation may be an avenue to address water quality concerns. Conversely, litigation strategies grounded in these private rights, designed to address health issues stemming from environmental exposures, may still fail to capture the full extent of environmental harm and its long‑term implications.^[370]

Though individual plaintiffs may have found respite from well water contamination through the litigation noted above, there are still other options for promoting public health. The majority of private well owners continue to shoulder the burden of private well maintenance and mitigation, including professional water quality treatment. These measures are effective but often unused by private well owners due to costs and other barriers. Therefore, a multilayered approach is needed to address the private well health crisis in a way that appreciates the diversity of rural residents’ experiences.

A Multilayered Approach for Improving the Private Well Public Health Crisis

This Part proposes a multilayered approach to addressing the public health crisis of contamination of private well drinking water. This approach includes increased state regulation, collaborative local government policies, and engagement with nongovernmental partners to address the disparities faced by vulnerable populations; it interrogates existing proposed solutions and acknowledges that people who rely on private wells exist in various “rural Americas.” The disparities faced by people in the rural Americas mandate a varied and tailored approach: different legislative, regulatory, and community‑based remedies will best suit specific places and populations. The discussion of this multilayered approach is grounded in theories articulated in Conceptual Foundations of Public Health Law, where the authors define “public health law” as:

the study of the legal powers and duties of the state, in collaboration with its partners (e.g., health care, business, the community, the media, and academe), to assure the conditions for people to be healthy (to identify, prevent, and ameliorate risks to health in the population) and the limitations on the power of the state to constrain the autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals for the common good.^[371]

This definition captures several theories of public health law that can address the legal gaps in governing the health effects of private water systems. Such theories explore: “(1) government power and duty, (2) coercion and limits on state power, (3) government’s partners in the ‘public health system,’ (4) the population focus, [and] (5) communities and civic participation.”^[372] The following sections discuss state regulation of private wells, state collaboration with local governments, and support from nongovernmental partners, while acknowledging the populations most vulnerable to private well contamination. Because rural experiences differ, this multilayered approach offers a range of related interventions to address contamination. Namely, this Article proposes a remedial legal approach that engages governmental and nongovernmental actors to combat the many manifestations of health risks posed by private wells across the rural Americas.

Disparities Impacting Health in the Rural Americas

This Section highlights the diverse nature of health‑based vulnerabilities among rural populations and identifies opportunities to bolster legal interventions at the state and local levels through partnerships with nongovernmental organizations. Community nongovernmental partners may also be better positioned to respond in ways that appreciate cultural nuances that impact well stewardship.

Earlier, this Article glimpsed the struggle for clean water in rural Appalachian Kentucky.^[373] While the majority of Kentucky residents use public water systems, in Appalachia, residents battle to access safe drinking water due to geographic isolation and poverty.^[374] In many areas, people do not have access to public or private water systems and instead rely on alternative sources of hydration, such as expensive bottled water, other sugary drinks,^[375] natural springs, and private wells.^[376] As such, the health‑based consequences are substantial. A testing sample from three Appalachian Kentucky counties—Clay, Leslie, and Bell—found that 64 percent of tested sites exceeded the EPA limits for E. coli in public water systems, making the water unsafe to drink.^[377] This example demonstrates that vulnerable populations exist across the rural Americas, with a wide variation in vulnerability among jurisdictions.

Vulnerability as it relates to health disparities manifests in various ways. As noted by the title of this Article, there is not simply one “rural” America—there are several rural Americas. Though they share the “rural” designation, the inequities faced by these populations may vary across socioeconomic, biological, and racial and ethnic lines.^[378] These inequities are closely related to the health of people across rural America and impact how these populations engage with interventions to improve water quality in private wells. Therefore, a tenet of this Article’s multilayered approach is recognizing that health disparities exist among the rural population that relies on private wells. From a preventive perspective, and as discussed in Sections IV.B and C, the government should work in partnership with local nongovernmental actors to improve the health of all people, while maintaining awareness of the varied ways rural populations may experience the ills of well water contamination.^[379]

Socioeconomic Status

Disparities in testing behavior and beliefs about testing have been linked to socioeconomic status.^[380] Without a state or local mandate to test private wells for contaminants, most private wells in low‑income areas are not tested. Further, such mandates are severely lacking.^[381] Studies have demonstrated this precise link: In Maine and New Jersey, for example, the income and education levels of well owners are predictors of whether residents ever test their wells, and specifically whether they test for arsenic.^[382]

In rural communities, however, “higher income and better educated households benefit more than lower income and less‑educated households from public health interventions intended for the whole community.”^[383] For example, in New Jersey, town‑level testing activities have been successful in testing more wells for arsenic, but higher‑income and more-educated households were more receptive to information about risk, even when testing was free.^[384] For individuals whose wells are not subject to regulatory oversight, financial and technical barriers may inhibit their access to testing or treating their wells.^[385] Further, if someone can afford testing, treatment systems to address contaminants are costly. Should one discover that their well contains nitrates exceeding EPA standards, the costs to install a treatment system could exceed $2,500, plus yearly maintenance costs.^[386]

In addition to struggling to bear the costs of testing and treatment systems, people living in rural communities may also fear how a determination of well contamination could decrease their property value, thus impacting their capacity to build intergenerational wealth.^[387] These concerns demonstrate that state and local government testing mandates alone may not address this public health crisis. Without focused efforts to provide financial resources and engage low‑income and less‑educated households, communities like those in Appalachian Kentucky remain vulnerable to private well contamination.^[388] As such, it is imperative that other states and localities collaborate with nongovernmental partners to address these disparities.^[389]

Ethnicity and Race‑Based Vulnerability

Disparities related to race and ethnicity deepen inequities among the rural population that relies on private wells and point to other subpopulations in the rural Americas. Like socioeconomic status, race and ethnicity also impact health and engagement with interventions to improve private well water quality.^[390] This is due, in part, to the legacies of residential segregation,^[391] redlining,^[392] and underbounding^[393] that have contributed substantially to modern racial inequality. Redlining and racial segregation actions, which excluded many Black, Indigenous, and other People of Color (BIPOC) communities from public utilities, forced these communities to rely on private wells.^[394] As such, the growth of public utilities, which benefited millions of Americans, furthered inequality in many BIPOC communities and progressed alongside inequality as municipalities often excluded predominantly minority communities.

For example, in the 1950s, the town of Zanesville, Ohio, did not build water lines in its African‑American neighborhoods.^[395] Similarly, Roanoke, Virginia, did not extend its infrastructure to Hollins, a majority‑Black town.^[396] In California’s Central Valley, predominantly Latino communities were discouraged from formally incorporating, thereby preventing them from securing the funding needed to install public water systems.^[397]

This systemic exclusion led to multigenerational reliance on private wells for drinking water.^[398] This, in turn, has led to harmful public health outcomes.^[399] A case in point, lead exposure is two times as frequent among African American children compared to other racial and ethnic groups.^[400] One North Carolina study estimated that elevated lead in water could trigger elevated blood lead levels in 10 percent of children in predominantly African American communities in North Carolina who use private wells for drinking water.^[401] In addition, the study found that private well testing and actions to treat wells were significantly predicted by race and income.^[402]

In counties with large rural populations in North Carolina there is a correlation between exceeding the maximum contamination level for inorganic metals and race. Fifty‑seven percent of wells used by BIPOC households exceeded at least one MCL, as compared to only 25 percent of white households, highlighting a burden disparity relating to metal contamination occurring in BIPOC wells.^[403] Hispanic and immigrant communities are also substantially impacted by poor water quality. In Yakima Valley, Washington state, where an estimated 25,000 low‑income Hispanic residents relied on groundwater, 12 percent of those wells exceeded the MCL for nitrate.^[404] In migrant labor facilities in Michigan, microbial water contamination and pesticide contamination are issues.^[405] One study found that when looking at race, white high‑income households were over 10 times more likely to test their private wells and over four times more likely to treat those wells than BIPOC low‑income households.^[406] Further, for all private well owners, there are barriers to participation in testing even when it is available, including mistrust of government agencies, limited health literacy about contamination, inconvenience, cost, and concerns about property values.^[407]

Moreover, lack of income also speaks to the types of wells most common in BIPOC communities. Dug wells have a “higher risk of contamination due to their depth and lack of continuous casing.”^[408] Drilled wells are safer but can cost more to install than dug wells, and their installation requires greater technical expertise.^[409] Low‑income communities are likely to have these cheaper dug wells, as compared to the more costly drilled wells.^[410] Of the wells sampled in North Carolina, dug wells accounted for 40 percent of low-income BIPOC households compared with only 10 percent of drilled wells; on the other hand, high‑income, white households reported only 23 percent of dug wells and 57 percent of drilled wells.^[411] In summary, BIPOC and low‑income groups throughout the rural Americas may experience even greater health impacts from exposure to contaminants from private well drinking water.^[412]

Biological Vulnerability

In rural communities, children and pregnant women are among those considered biologically vulnerable to adverse health consequences.^[413] While contaminants are a concern for everyone, children are particularly vulnerable.^[414] Concerningly, children who drink private well water have higher blood lead levels than those with public water.^[415]

Among children nationwide, blood lead levels above SDWA standards occur nearly four times as often among low‑income children.^[416] Scholars and doctors acknowledge this concern: Health concerns are so alarming for children that the American Academy of Pediatrics (AAP) published and reaffirmed its policy statement that recommends annual testing of private well water.^[417] Unfortunately, pregnant women who rely on private well water are not routinely advised to test their wells for exposure to arsenic.^[418] The National Research Council found that chronic exposure to inorganic arsenic is associated with negative outcomes during pregnancy and in child development.^[419] In Maine, arsenic was detected in 99 percent of blood samples from children aged one to six and at even higher levels in areas where the MCL level exceeded the standard for public systems.^[420]

Children often experience adverse effects from a lack of appropriate chemical levels in private well drinking water. For example, having an appropriate level of fluoride in water is considered a preventive measure that supports dental health.^[421] Too much fluoride can disturb the chemical structure of dental enamel and bone tissue.^[422] Conversely, children without fluoride in their water may require a supplement.^[423] The AAP recommends periodic testing for contaminants for families with children using private wells.^[424] The AAP also recommends that individuals at high risk of exposure undergo lead screening from ages 6 months to 6 years.^[425] While the U.S. Preventive Services Task Force recommends screening, this recommendation is not a part of any official screening tools for pediatric care.^[426]

Although not specific to just private well users, the CDC recognizes the possibility of lead poisoning in children through lead pipes and fixtures.^[427] Current federal provisions, such as the SDWA and the Lead and Copper Rule, provide legal cover for public water systems, but private water systems are not covered by these provisions. States should resolve this issue by adopting screening requirements that align with the AAP’s recommendations. As discussed in Section IV.C, state regulations in response to increased blood lead levels in children allow for a response after possible harm.

Engagement with Nongovernmental Partners

No matter where in the rural Americas, there is the expectation that state and local government are responsible for public health, including the proper allocation and management of natural resources. Regarding quality drinking water, the government has limited its resources to the public realm,^[428] leaving those who rely on private systems at a disadvantage. Although the power to address public health is generally within the government domain, ensuring water quality in private wells involves partnerships with nongovernmental entities, including health systems, businesses, nonprofit organizations, and academia.^[429] There are two benefits to having nongovernmental partners as collaborators in addressing the private well public health crisis. First, nongovernmental partners may offer technical programming for well owners.^[430] Second, they are an educational force for increasing health literacy around private well risks.^[431]

Technical Programming Support and Screening

There is an opportunity for state law to interact with community partners to dismantle inequities for BIPOC households and vulnerable communities, such as pregnant women and children who rely on private wells. As a starting place for this partnership, state law could adjust pediatric screening recommendations for children in households that use private wells for drinking water.

Pediatric screening by doctors should be the first line of defense for serving communities that rely on private wells. This approach could increase awareness of well contamination and identify pregnant women and children who have health risks. Because it is known that children are exposed to contaminants, such as lead via water, it would behoove state and local agencies to require screening of other contaminants that could come from private wells.^[432] However, the screening evaluations would be strengthened through community‑based interventions. Sharing information between the medical community and residents about drinking water safety, such as through collaborations with local nongovernmental partners, could positively impact vulnerable households. To better assist children, particularly those from families that rely on private wells, medical evaluations must consider those children at high risk of harm from contaminated well water. Increased screening for lead exposure demonstrates the effectiveness of such an intervention.

Preventive screening and interventions are more important for children who are eligible for Medicaid, given their increased exposure to lead.^[433] In response to the increased risk, Medicaid law has required blood lead assessments since 1989.^[434] State and local agencies could assess local exposure risks from private wells and develop screening requirements for medical professionals.^[435] Such evaluations should be preventive, aimed at stopping or reducing lead exposure before symptoms appear.^[436] Broader awareness of these resources is essential to truly make a meaningful impact, and nongovernmental groups are poised to help.

One such example of nongovernmental and governmental group collaboration is the Appalachia Community Health & Disaster Readiness Project, funded in July 2013 by the U.S. Department of Health and Human Services, Health Resources and Services Administration.^[437] The project’s team, in partnership with the community, shared information about health concerns and community readiness.^[438] Their work included identifying potentially contaminated water sources, conducting water testing, and engaging the community.^[439]

Relatedly, in some rural communities in North Carolina, the most significant sources of private well contamination are agricultural sources, particularly nitrates from plant and animal sources.^[440] Though state law focuses most on well construction,^[441] there is support for well owners through local government action strengthened by invaluable nongovernmental partners. North Carolina Cooperative Extension agents provide outreach, workshops, and training on agricultural best management practices (BMPs), food processing water safety, wellhead protection, and water quality testing.^[442] Each county also has soil and water conservation districts^[443] that provide farmers with technical training and education on managing potential environmental contamination.

Communities may also require assistance with monitoring private wells to ensure continued quality. Research indicates that few well owners adhere to guidelines for water quality monitoring,^[444] even when they are aware of them. A survey of private well owners in North Carolina found that only 16 percent followed public health guidelines for testing private wells.^[445] Some private well households may choose to disregard evidence of contamination. For example, approximately one‑third of households in Maine did not take action to reduce exposure despite survey results indicating high arsenic levels in 256 private well households.^[446] Nongovernmental partners working in tandem with state and local governments may motivate well users to take advantage of testing and other government‑supported resources. An example of these partners includes the Private Well Class^[447] partnerships, which can offer additional support for stressed communities that rely on private wells for drinking water.

Educational Programs

Rural populations—especially economically and socially disadvantaged communities who rely on wells for drinking water—will likely remain unaware of health risks without targeted action to educate, encourage testing, and share treatment options.^[448] The discussion above in Section III.B.2 identifies a gap in the New Jersey Private Well Testing Act (PWTA), which only requires arsenic testing in real estate transactions after 2002, leaving many well owners in impacted areas without regulation.^[449] With these legal gaps, some private well owners lack protections. To reach those communities, state and local governments should engage with nongovernmental partners.

Community organizations should partner with state governments, as they are often better positioned to address the health literacy gaps experienced by rural populations. Programs like the Penn State Cooperative Extension have filled a need for programming that addresses gaps left by Pennsylvania law.^[450] The Extension created the Master Well Owner Network (MWON) program and trained over 400 volunteers, who have educated over 30,000 private well owners.^[451] A study predicated on this program and MWON’s efforts also investigated contamination sources in Pennsylvania and evaluated the need for policy and education interventions in the state, finding that water quality for private well owners could be improved through routine testing and educational programs.^[452]

Exacerbating their knowledge gap, private well owners are responsible for independently monitoring lead levels and maintaining their wells by ensuring corrosion‑control systems are in place and by replacing well components as needed.^[453] Because private well owners must also manage their wells without access to the expansive data available to government entities, this further underscores the importance of partnerships with nongovernmental organizations to bridge the gap.

The literature also suggests that there are social vulnerabilities related to beliefs about testing and the resulting behaviors.^[454] Historically, individuals have held strong beliefs about groundwater quality, which influence their behavior regarding well stewardship.^[455] For example, Wisconsin residents have a tradition of pride in their long history of high‑quality groundwater.^[456] This historical pride leads to the present perception that this water is good everywhere.^[457] Similar sentiments exist when speaking with residents in North Carolina.^[458] However, the reality is different. Though the sentiment that well water is inherently safer may resonate with well users, this belief contributes to a social norm^[459] that discourages testing and treatment.

Increased health literacy efforts, championed by community partners, could offer additional support amid historical mistrust and cultural differences. Literacy is also a means of making testing processes and safety precautions an expectation of community members. With the infrequency of testing, it is not currently a social norm to test, and members of minority groups are often left to determine how best to assess and remedy toxic water conditions on their own.^[460] There have been efforts to raise public awareness of the importance of testing private wells and ensuring sanitation.^[461] However, the insufficient codification of water quality standards and private well testing has led to a lack of understanding of the health risks associated with private wells.^[462] Well owners might not notice a problem until alerted by an unacceptable taste or appearance^[463] that raises a concern about risk.^[464] However, a private well may become contaminated before any discernible change in taste or appearance occurs.^[465] For instance, arsenic and nitrates have no taste, smell, or color in water.^[466]

Moreover, without further guidance, well owners are unlikely to appreciate the wide range of contaminants that can negatively impact human health. Some may understand the connection between pathogens and gastrointestinal issues, but they may not understand how nitrates and natural minerals can have detrimental impacts on gastrointestinal health.^[467] For example, ingesting high levels of iron can cause gastrointestinal upset and lead to liver damage if left untreated.^[468] A 2013 study found that rural homeowners in Wisconsin were unclear about the need to have their well water tested for safety.^[469] The study revealed that only 16 percent of study participants tested their wells annually, and nearly one‑third of well owners have never tested their wells.^[470] Even for those who have their wells tested, many are uncertain about the test results and what they mean. For example, nearly 40 percent of those who tested their wells mistakenly assumed that the testing analysis included volatile organic compounds, pesticides, and arsenic.^[471] However, these parameters are not routinely included in well testing.^[472]

A lack of health literacy, coupled with limited well testing, diminishes well stewardship as a protective public health measure.^[473] Routine testing can reveal drinking water contamination and help identify remediation options to address it.^[474] Yet, detailed information about well stewardship is not commonly known to private well owners and ongoing water testing is often absent from the practices of the homeowner.^[475]

One way state governments can instigate public awareness about well stewardship is through state law, as described more in Section IV.C. a Connecticut state law aims to promote awareness of risk by requiring an owner or landlord to provide the buyer or tenant with educational materials on private well testing available on the Department of Public Health website prior to the sale, transfer, or rental of real property.^[476] Providing a website with the necessary information is a beneficial strategy for increasing public knowledge.

Still, compared to state governments, community nongovernmental partners may be better positioned to respond in ways that appreciate cultural nuances that impact well stewardship.^[477] Community organizations may highlight the circumstantial, socioeconomic, and cultural barriers^[478] needed to limit risks.^[479] Cultural norms about the use of private wells also influence perceptions of well water health and safety. Private well owners in Wisconsin displayed an “optimistic bias”—namely, that one’s well is at less of a risk than others.^[480] Among the well owners who might be aware of arsenic concerns in their area, these groups still demonstrated a bias against testing.^[481] Instead of relying solely on government mandates, nongovernmental partners can promote educational intervention on the local level through community programs designed to specifically elevate the knowledge base of well owners regarding proper well stewardship and health risks.^[482]

State and Local Legal Oversight of Private Wells

The multilayered approach discussed herein places a greater onus on governmental entities to oversee and support private landowners in ensuring the water quality of private wells. Greater state government power, strengthened by local policy, could be used to regulate private well ownership in the name of safeguarding public health. Since the beginning of water systems regulation, power has rested with state and local governments.^[483] Modern public health regulations center on the state acting on behalf of the public’s interest.^[484] In this relationship, both the individual and the government entity contribute to achieving a state of health and well‑being. On the government’s part, one expects the state to use its power to protect the public from harm in a way that benefits the most. There is an expectation that the government takes action to develop systems for clean air, water, and land, and manage the spread of disease.^[485] This Article surveys some possibilities for intervention above; however, in the sections to follow, this Article interrogates those possibilities and offers actionable revisions.

Participation in Public Water Systems

This Article references proposals to extend public water systems. This Section analyzes challenges with implementing these proposals and offers alternatives. States have broad police powers to regulate for health, safety, and welfare.^[486] These police powers allow for the state to regulate private wells through required inspections, tax benefits for participation in a private well monitoring program, and private well testing mandates.^[487] Additionally, local governments have compelled residents to participate in public water systems.^[488] In other instances, residents may be given an option to join water systems. As noted, the natural solution seems to be either to compel or to allow well owners to participate in municipal water. However, private well owners are not always receptive to government action requiring the extension of private water systems. What is offered here is an analysis of the limitations of this approach and an acknowledgement that any proposed solution must contend with the tension between private rights and government intervention. On one hand, state action to force private owners to tap into public water systems would afford residents the prospect of drawing from drinking water systems that profit from legal protections. On the other hand, state authority would likely be challenged.

Specifically, a look back at precedent demonstrates the test of navigating the line between governmental public health powers and private rights.^[489] How far can the state go to compel a homeowner with a private well to tap into a public water system? How can a private individual’s use of a private well impact the common good to an extent that justifies government intervention into a private right?

Though a resident may object to a government requirement that they participate in public water systems, it is difficult to establish a regulatory taking.^[490] In Becker v. City of Hillsboro, the plaintiffs argued that the city’s 1971 ordinance,^[491] which prevents the drilling or use of any well as a water source on any property in the city, was a “taking” and a physical invasion of the land.^[492] The district court held that the ordinance would not constitute a per se taking because it does not amount to a “complete elimination of value” or a “total loss.”^[493] Even if the plaintiff would suffer economic impacts related to the loss of land value and cost of extended city water services, a regulatory taking has not occurred.^[494] The Eighth Circuit affirmed the decision of the district court’s grant of summary judgment for the city, noting that the regulation was a “limitation on use, not . . . a ‘physical invasion.’”^[495] The appellate court ultimately cited city representatives who passed the regulation with the intent to prevent water contamination within city limits.^[496]

Plaintiffs also seek remedies by challenging the government’s ability to regulate private wells.^[497] Individuals with private water wells have also used the courts to challenge the government’s ability to compel them to connect to public water systems. For example, in Ennis v. Stewart,^[498] a town ordinance required that any time real property that relies on private well water is sold, the landowner must connect to the town’s water system prior to the sale.^[499] The plaintiff, the town of Ennis, appealed a district court order reversing the conviction and dismissing the charges against defendants Edgar and Martha Stewart, and Pearl Doyle.^[500] The court convicted the defendants of refusing to connect to the Ennis water system, in violation of the town ordinance.^[501] The plaintiffs claimed that the town exceeded its police power by requiring residents to connect to the local water supply and that they had a privacy right in their wells under article II, section 10 of the Montana Constitution.^[502] The defendants had not experienced any health problems originating from the private well.^[503]

The district court agreed that the defendants had a privacy right to use a private well, as guaranteed by the Montana Constitution, and that the town’s exercise of the police power was invalid due to the lack of a compelling state interest.^[504] Ultimately, the appellate court found that the privacy right protected by the Montana Constitution included the type of interest that the defendants claimed.^[505] This means that the defendants’ right to decide what to drink may be protected, but not their desire to completely limit government intervention.^[506] However, that protection does not prevent the government from acting in a manner that supports the compelling state interest of protecting public health.^[507] Here, the expectation of privacy that the defendants claimed was found unreasonable when weighed against the public health and welfare.^[508]

Notably, challenges regarding state authority are usually resolved by recognizing the state’s broad power to regulate for the public’s health.^[509] Ennis is an example of this, as the court upheld a local ordinance requiring private well owners to connect to public water systems. This should serve as encouragement for using state action to require resident participation in this process.^[510]

Such a strategy may work well in parts of the rural Americas where private well use threatens public water systems, adding another layer to addressing this public health crisis. Assuming that public water system infrastructure can accommodate additional homes, private well owners could join these systems and thus obtain the protection afforded by the SDWA. To tackle concerns about private rights of well owners, states could make participation in public water systems optional.

There are other options available to state governments—options that may be best among other segments of the rural Americas. States could also use their power to invest in testing for well quality, which may offer a more palatable degree of government intrusion into private property.

Required Testing and Expanded Testing Parameters

The public health benefits of testing private wells are numerous, but state and local governments frequently underutilize this proactive measure. Testing reveals contamination similar to that discovered in a survey of 2,000 private well households in arsenic‑affected areas of central Maine and northern New Jersey.^[511] Of the 2,000 households included in this population, more than half never tested their water for arsenic.^[512] By comparison, only 30 percent of surveyed households in Nevada and 21 percent in Wisconsin reported testing their wells for arsenic.^[513] Required testing laws could be effective if legislatures structured these laws in a way that concentrates on the frequency of testing as well and expand testing parameters to include additional contaminants. Laws should mandate testing for circumstances such as real estate transactions as well as when the risk of contamination is known to public officials.

Expansion of testing parameters would aid in identifying the range of contaminants in well water, thereby increasing knowledge around mitigation efforts.^[514] As mentioned, one of the categories included in water‑testing protocols includes inorganic compound nitrate.^[515] This parameter inadequately captures the full range of compounds that pose health risks, particularly when testing is limited to nitrate and coliform bacteria.^[516] In fact, a sample may reveal a safe level of nitrate but still contain harmful levels of metals that might not be included in the testing protocol.^[517] Researchers suggest that the testing protocol should include more contaminants than just nitrates and coliform bacteria.^[518] Any required testing law or policy should be revised to include these expanded parameters to better protect the public’s health.

However, even for the limited rural residents who can access testing, advanced laboratories may still not provide the comprehensive testing needed to identify the wide range of chemical, radiological, and biological contaminants in groundwater.^[519] For instance, in Deschutes County, Oregon, there are 17,000 private wells that serve 34,846 people.^[520] Generally, 20 percent of all wells in Oregon test positive for coliform bacteria,^[521] but homeowners are not provided testing assistance.^[522] In Aiken, South Carolina—particularly in more rural regions—residents rely on private wells for their water supply.^[523] In these rural areas, access to public water systems is limited.^[524] In both Deschutes County and Aiken, residents would benefit from mandated testing. Unfortunately, homeowners remain solely responsible for well testing.^[525]

There should be priority‑setting actions led by state governments to identify and address contaminants of greatest public health concern. For example, there are instances where the public health concern is so great the use of private wells must be terminated. In a rental mobile‑home community in Ellendale, Delaware, known as “The Hole,” private wells were contaminated, undrinkable, and contained high levels of nitrates and iron.^[526] Consequently, residents were required to drink bottled water. In these cases, the threat to public health is so great that testing should be mandated by law, even in the face of individual objections noted in litigation.^[527]

To shore up the regulatory gap created by a lack of enforcement measures, such as required testing and reporting, states should make real estate transactions contingent on completion of testing and notification to buyers. Forcing compliance would ensure that sellers test their wells and share the results. As mentioned previously, Connecticut law requires the local health authority to test in certain circumstances and determine whether the test results exceed the maximum contaminant levels under Connecticut law.^[528] This provision is important because it imposes standards specific to Connecticut, but it could include additional incentives for compliance.

State legislators should look to Canadian legislation for guidance on executing such requirements. For example, British Columbia proposed a law requiring annual or semiannual testing, with combined tax credits for households that test their water and remediate their wells.^[529] Expanding testing should also include state government funding for impacted residents, as testing can be expensive for residents.^[530] The specific costs vary based on the selection of testing packages and the inclusion of additional parameters.^[531] For example, in Wake County, testing for pesticides and herbicides may incur costs beyond the standard testing panel.^[532] State or local governments should subsidize testing and well mitigation. A testing requirement, combined with compliance measures and tax incentives, could foster an environment where test results are available and shared before home sales.

There are also other matters that would bolster the required testing laws. For example, businesses that are engaged in well testing and mitigation should be held to legal standards.^[533] Should a private well owner decide to test and learn that there is contamination, they will be reliant on businesses to assist with treatment. State action could ensure that local water treatment providers are qualified to provide mitigation services by creating a certification system. In addition, because of the correlation between well construction and contaminant occurrence, expanded testing parameters would be strengthened by stricter construction standards and monitoring.

Strengthened Groundwater Protections at the State Level

Building this multilayered approach requires that state governments revisit past proposals to address private well degradation at the source.^[534] Because many people rely on groundwater for drinking water, states are best positioned to address broader groundwater contamination. While regulating groundwater has presented challenges, state legislatures have a present and future incentive to protect source water used for drinking.^[535] This is the case even when contaminants have not been identified, as it is less expensive to prevent contamination than to treat it.^[536]

Currently, most states differentiate between laws governing surface water and groundwater.^[537] In general, groundwater is unregulated or more loosely regulated than surface water.^[538] It is theorized that this separate treatment reflects the difficulty of regulating groundwater when less is known about it than surface water, such as rivers.^[539] This differentiation is noted in early legal jurisprudence. For example, in 1850, the Connecticut Supreme Court in Roath v. Driscoll did not protect an existing well owner from a neighbor whose subsequent well eliminated the first’s water supply.^[540] In reference to regulating the source of this well water, the court noted that water in the Earth is not distinct from the Earth, and the laws governing its “existence and progress, while there, are not uniform, and cannot be known or regulated . . . . [W]e cannot subject them to the regulations of law, nor build upon them a system of rules, as has been done with streams upon the surface.”^[541] The court acknowledged here the disconnect between the scientific characterization of water and the lag in legal understanding.^[542] Relatedly, jurisdictions may continue to leniently regulate groundwater as an administrative matter, given the difficulty of determining how to divide water use among parties.^[543] Despite these difficulties, states retain the authority to strengthen groundwater protections.

For instance, the growth of hydraulic fracturing, commonly referred to as fracking, has a detrimental impact on water quality.^[544] This threat to well water quality exemplifies how state regulations might address groundwater contamination, as both surface water and groundwater are at risk of contamination from chemicals used in fracking operations.^[545] These chemicals can leach into groundwater from drill cuttings, drilling mud, or stray gas migration in aquifers caused by breached casing or cracked wellbore cement.^[546] Suppose the boundaries of groundwater are as unknown as the law suggests. In that case there are likewise no limits on how fracking contamination could impact aquifers serving as the source of private well water. States allow for fracking and other uses of the land, but they simultaneously maintain power to secure public health aims for its population.

As such, the remedy here is for state governments to support changes that strengthen groundwater protections and require local governments to provide information about local groundwater conditions.^[547] These remedies are even more important for rural communities that rely on private wells more than other areas of the country.^[548] This provision of information would take the form of mandatory disclosure regulations that require reporting and disclosure of information regarding water quality.^[549] There are fracking regulations that exemplify this type of disclosure regulation. States with significant fracking operations have laws requiring the reporting of specific information, such as chemicals used in fracking fluid.^[550] State disclosure requirements for chemical additives exist in Arkansas, West Virginia, Texas, and Ohio.^[551] For example, in Arkansas, the fracking permit holder is required to make a number of disclosures, including the types and volumes of fracking liquids, additives used in fracking operations, and a list of chemical components.^[552]

States should add to these disclosure regulations the requirements for industry to take additional safeguards for drinking water, as excellently modeled by Pennsylvania.^[553] The Pennsylvania code provides for the protection of water supplies in Title 25, Chapter 78, stating:

A landowner, water purveyor or affected person suffering pollution or diminution of a water supply as a result of drilling, altering or operating an oil or gas well may so notify the Department and request that an investigation be conducted. The notice and request must include the following: . . . available background quality and quantity data regarding water supply . . . [and a] description of the pollution or diminution.^[554]

Such safeguards, in the form of disclosure requirements, are especially important since hydraulic fracturing is exempt from the SDWA, an exemption commonly referred to as the Halliburton loophole.^[555] Disclosures and water protections stemming from fracking are just one way for states to strengthen groundwater protections and address contaminants that may enter homes through private wells.

Local Government Policy

State regulations play a crucial role in strengthening protections for those who rely on private wells. However, local governments may be more attuned to the needs of rural residents. As such, local policy should supplement state action through the multilayered approach proposed in this Article. To the extent that private wells are regulated, the authority to do so should be shared or divided among state and local governments. Local policy should supplement state action by using health‑based screening measures to address the unique needs of vulnerable populations. Further, where the federal and state governments are silent, local governments may bear the entire burden of protecting private well users by regulating well drilling, well maintenance, and sources of private well contamination.^[556]

Recall Cathy Cochrane from the introduction of this Article, who learned about her well contamination after an ovarian cancer diagnosis.^[557] Washington state does not preempt Cowlitz County from regulating well construction or permitting.^[558] Washington sets minimum standards, but many counties adopt local ordinances or permitting practices that are stricter (e.g., larger setbacks, additional site testing) than the state standards.^[559] These local ordinances are permissible so long as they do not conflict with state law or attempt to regulate water rights in an improper manner.^[560]

Some local governments have laudably passed private well regulations stricter than those of their respective states, but this practice is not prevalent.^[561] Local governments are often best positioned to oversee universal screening of private well water because of their closer connection with impacted populations.^[562]

There are several illustrations of local governments regulating private wells to improve water quality. In Winona County, Minnesota, where several private wells were contaminated, a county ordinance limited the number of animals that could be housed at a concentrated animal feeding operation.^[563] In Kansas, counties can mandate more stringent requirements for lateral distances between well locations and places such as landfills and septic tanks.^[564] Pairing these positive local government actions with other interventions would amplify impact.

Local governments should use health‑based screening levels to determine contamination and risk from private wells.^[565] Some scholars believe that universal screening is the best first step to ensuring water quality in private wells and thus protecting public wealth.^[566] There are some states with a higher risk of geographical contamination and increased private well use where universal screening for specific contaminants should be required. A model for government collaboration would take the form of initial state action to change testing laws, supported by local screening processes tailored to the geographic and health-based needs of private well owners across different regions of the state. State governments should require that well testing rely on the EPA’s MCLs and Human Health Benchmarks for Pesticides (HHBPs) as a baseline, but that they be supplemented by health‑based screening levels (HBSLs).^[567]

Although HBSLs for evaluating water quality are not legally enforceable at the federal level, state and local governments could adopt them as required supplemental measures.^[568] HBSLs should also be used to determine whether contaminants found in surface water or groundwater sources indicate a health concern. Using the HBSLs as a guide, states and local governments can better account for regional differences within states. Furthermore, these can be updated with local specificity. HHBPs, as a required standard, may also be applied to public water systems, particularly in rural communities where the risk of pesticide contamination is higher.^[569]

Municipalities should support testing by using HHBPs for 430 pesticides to assist Tribes and states in prioritizing monitoring efforts and evaluating the detection of pesticides in drinking water or sources of drinking water that may pose a human health risk.^[570] This broadened testing paradigm would be supported by local policies enacted by government actors who are better positioned to identify actual community needs. Specifically, local governments would tailor the testing paradigm to capture the pesticides and contaminants of greatest priority in that local area. Such a collaboration would enable the identification of a broader range of contaminants that negatively impact health and support more targeted treatment programs.

Beyond nongovernmental actors working to bridge the educational gap, the multilayered approach also calls on local governments to address the needs of surrounding communities by requiring education on private well safety. Local governments should invest in public water systems and reduce the costs for private well owners who wish to connect to them. Such activities could be integrated into development goals and comprehensive planning legislation that informs such development. These actions, when taken together, would impact the quality of private wells and access to safe public water.^[571]

Conclusion

Public health professionals, scholars, and media sources consistently highlight the detrimental health consequences of drinking water from toxic public water systems. However, millions of people in the United States use private domestic wells as their drinking water sources—sources that are at extreme risk of contamination. Most private well households are located in rural areas of the Americas—the people living in these households are often unaware of their exposure to water contaminated with dangerous chemical compounds, disease-causing bacteria, and toxins. Unfortunately, federal, state, and local laws and policies do not comprehensively protect those who rely on private wells for domestic use.

This must be addressed urgently to safeguard the public’s health—especially in rural communities already burdened by health inequities. No entity can resolve this crisis alone. There are tiers of actions that must be taken to resolve the private well drinking water crisis. This Article’s multilayered approach addresses the public health crisis caused by contaminated private well water through (1) engagement with nongovernmental partners (2) increased state regulation of private well water, and (3) collaborative local policy with recognition of vulnerable populations. This approach will amplify conversations around private well water safety and offer a pathway for public health improvements caused by unwell water across the rural Americas.

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* Assistant Professor of Law, University of Kentucky, J. David Rosenberg College of Law. I thank the entire University of Kentucky DREAM Scholars Program for their support, encouragement, and especially for the mentorship of Adebola Adegboyega, Robert Bell, Victoria King, Brittany Smalls, and Lovoria Williams. I also thank the Center for Health Law Studies at Saint Louis University and the American Society of Law, Medicine & Ethics for their selection of this piece for the 2024 Health Law Scholars Workshop. I appreciate the Workshop reviewers for their thoughtful comments which helped me develop this work including Lance Gable, Theodosia Stavroulaki, Michael Sinha, Fred Rottnek, Emily Hite, Sandra Johnson, Lewis Grossman, Sidney Watson, Elizabeth McCuskey, Valerie Blake, Janelle Fields Allsbrook, Elizabeth Pendo, Yolanda Wilson, Matiangai Sirleaf, Kelly Gillespie, Heather Walter-McCabe, Elizabeth Chiarello, Michael Rozier, Rebecca Wolitz, and Elenore Wade. This Article was also supported by my University of Kentucky Rosenberg College of Law colleagues: Tiffany Atkins, Zachary Bray, Ilana Friedman, Shweta Kumar, Matthew Boaz, and Raquel Wilson, and research assistant Myles Moser, for whom I am grateful.

1. Silvia Foster‑Frau, High Toxin Levels Are Illegal in Public Water. But Not for Americans Using Private Wells, Wash. Post (Sep. 10, 2024, at 5:00 AM), https://www.washingtonpost.com/nation/2024/09/10/high-toxin-levels-are-illegal-public-water-not-americans-using-private-wells [https://perma.cc/YS3S-KNDY]. ↑
2. Id. ↑
3. See id. ↑
4. See Erin Arcipowski et al., Clean Water, Clean Life: Promoting Healthier, Accessible Water in Rural Appalachia, J. Contemp. Water Rsch. & Educ., Aug. 2017, at 1, 1. ↑
5. Yu Lan et al., A Web‑Based Spatial Decision Support System for Monitoring the Risk of Water Contamination in Private Wells, 26 Annals of GIS 293, 293 (2020); see also James Salzman, Is It Safe to Drink the Water?, 19 Duke Env’t L. & Pol’y F. 1, 36 (2008). Professor Salzman notes that although our common practice has been to fill a glass and assume that the water is safe, safe drinking water is an exception and not the norm. Salzman, supra. Much of the water noted as “safe” for drinking is due to technological interventions and legal oversight instead of a natural occurrence. Id. ↑
6. Andrew George et al., Drinking Water Disparities in North Carolina Communities Served by Private Wells, 18 Env’t Just. 346 (2025). ↑
7. Private Drinking Water Wells, supra note 1. ↑
8. Lan et al., supra note 11. ↑
9. See Rolf Nieder et al., Soil Components and Human Health 483 (2018). Radionuclides are radioactive substances that occur naturally in geologic and soil formations as well as from manmade sources. Id. at ix. Radiation can lead to cancer, organ failure, cell degeneration, and rapid death. Id. ↑
10. See Walter J. Rogan & Michael T. Brady, Drinking Water from Private Wells and Risks to Children, 123 Am. Acad. Pediatrics 1599, 1599 (2009); see also Ward et al., supra note 3, at 8. The authors detail the harmful impact of nitrates in drinking water including adverse pregnancy outcomes. Id. ↑
11. Bryan R. Swistock et al., Water Quality and Management of Private Drinking Water Wells in Pennsylvania, J. Env’t Health, Jan./Feb. 2013, at 60, 60. ↑
12. Water Res. Mission Area, supra note 2. ↑
13. C.D. Smith & L.H. Nowell, Health‑Based Screening Levels for Evaluating Water‑Quality Data, U.S. Geological Surv. (2024), https://water.usgs.gov/water-resources/hbsl [https://perma.cc/SR8E-75W9]; Sara V. Flanagan & Yan Zheng, Comparative Case Study of Legislative Attempts to Require Private Well Testing in New Jersey and Maine, 85 Env’t Sci. & Pol’y 40, 40 (2018). ↑
14. See Robin Kundis Craig, Removing “The Cloak of a Standing Inquiry”: Pollution Regulation, Public Health, and Private Risk in the Injury‑in‑Fact Analysis, 29 Cardozo L. Rev. 149, 152–54 (2007). ↑
15. Richard J. Lazarus, The Greening of America and the Graying of United States Environmental Law: Reflections on Environmental Law’s First Three Decades in the United States, 20 Va. Env’t L.J. 75, 78 (2001). ↑
16. Congress enacted the SDWA in 1974 amid growing concern about the safety of drinking water. See William E. Cox, Evolution of the Safe Drinking Water Act: A Search for Effective Quality Assurance Strategies and Workable Concepts of Federalism, 21 Wm. & Mary Env’t L. & Pol’y Rev. 69, 76 (1997). Examples of later additions to the SDWA include changes that required the removal of lead‑lined drinking coolers in schools. Id. at 82. ↑
17. Rogan & Brady, supra note 16. ↑
18. See Camille Pannu, Drinking Water and Exclusion: A Case Study from California’s Central Valley, 100 Cal. L. Rev. 223, 242 (2012); see also Michele Okoh, Forgotten Waters, 111 Geo. L.J. 723, 723 (2023). ↑
19. See Private Ground Water Wells, CDC: Drinking Water, https://www.cdc.gov/healthywater/drinking/private/wells/index.html [https://perma.cc/NAD6-XN5P] (last updated Mar. 11, 2011). ↑
20. See Michael B. Rosen et al., A Discussion About Public Health, Lead and Legionella Pneumophila in Drinking Water Supplies in the United States, 590–91 Sci. Total Env’t 843, 844–47 (2017). ↑
21. Id. at 844. ↑
22. Michael Hauptman & Alan D. Woolf, Childhood Ingestions of Environmental Toxins: What Are the Risks?, 146 Pediatrics e466, e466 (2017). ↑
23. See Bruce P. Lanphear et al., Low‑Level Environmental Lead Exposure and Children’s Intellectual Function: An International Pooled Analysis, 113 Env’t Health Persps. 894, 894 (2005). ↑
24. Arcipowski et al., supra note 10, at 3. ↑
25. Shavonnie R. Carthens, COVID‑19 and Access to Healthcare at the Crossing of Race, Poverty, and Rurality, 38 J.L. & Health 145, 153 (2024). ↑
26. Id. The COVID‑19 pandemic also underscored this disparity: When compared to pre‑COVID rural deficits, there was an even greater gap between rural and urban dwellers hospitalized for COVID‑19 infection. ↑
27. Kaitlin Kelly‑Reif & Steve Wing, Urban‑Rural Exploitation: An Underappreciated Dimension of Environmental Injustice, 47 J. Rural Stud. 350, 350 (2016). ↑
28. Id. at 353. ↑
29. Id. at 354. ↑
30. The term “rural Americas” refers to the diversity that exists among rural communities across the United States who rely on private wells for drinking water and other domestic use. ↑
31. See Social Determinants of Health, U.S. Dep’t of Health & Hum. Servs.: Priority Areas, https://health.gov/healthypeople/priority-areas/social-determinants-Health [https://perma.cc/RU6E-N8YG]. The Social Determinants of Health are environmental factors that impact health and quality of life outcomes and risks. Id. Among these factors are economic stability, education access and quality, health care access and quality, social and community context, and neighborhood and built environment. Id. It is the latter where we see inequities among populations that rely on private wells for drinking water. See id. ↑
32. See Andrew Murray et al., Methods for Estimating Locations of Housing Units Served by Private Domestic Wells in the United States Applied to 2010, 57 J. Am. Water Res. Ass’n 828, 829, 837–38 (2021). ↑
33. See Kristina Bowen et al., State‑Level Policies Concerning Private Wells in the United States, 21 Water Pol’y 428, 428 (2019). ↑
34. See generally Caitlin A. Ceryes & Christopher D. Heaney, “Ag‑Gag” Laws: Evolution, Resurgence, and Public Health Implications, 28 New Sols.: J. Env’t & Occupational Health Pol’y 664, 675 (2018). “Ag‑gag” refers to laws that prevent public access to information about agricultural practices. Id. at 664. Such laws stifle efforts to investigate activities that could important food safety, as well as community health. Id. at 675; see also infra Section III.C.4. ↑
35. See Nia Jeneé Heard‑Garris et al., Voices from Flint: Community Perceptions of the Flint Water Crisis, 94 J. Urb. Health 776, 776–79 (2017). ↑
36. See Ashley W. Jones & Antonio J. Gardner, The Jackson Water Crisis Across the Lifespan: Living and Dying for Clean Water, 4 J. Pub. Health Deep S., no. 2, 2024, at 1. ↑
37. Theodore H. Tulchinsky, John Snow, Cholera, the Broad Street Pump; Waterborne Diseases Then and Now, in Case Studies in Public Health 79, 83 (Erin Hill‑Parks & Kattie Washington eds., 2018); see also Nat’l Rsch. Council et al., Privatization of Water Services in the United States: An Assessment of Issues and Experience 30 (2002). ↑
38. See Tulchinsky, supra note 43, at 83; Nat’l Rsch. Council et al., supra note 43, at 29. During the Industrial Revolution, cities were not equipped with the infrastructure needed to sustain swelling populations in a safe and sanitary manner. See Joseph Schilling & Leslie S. Linton, The Public Health Roots of Zoning: In Search of Active Living’s Legal Genealogy, 28 Am. J. Prev Med. 97, 98 (2005). ↑
39. See Tulchinsky, supra note 43, at 83. ↑
40. Nat’l Rsch. Council et al., supra note 43. ↑
41. Richard Weinmeyer et al., The Safe Drinking Water Act of 1974 and Its Role in Providing Access to Safe Drinking Water in the United States, 19 AMA J. Ethics 1018, 1019 (2017); see also Nat’l Rsch. Council et al., supra note 43. The responsibility for creating these systems rested within the domain of local government. See Weinmeyer et al., supra. ↑
42. See Weinmeyer et al., supra note 47. ↑
43. Id.; Nat’l Rsch. Council et al., supra note 43, at 32. ↑
44. See, e.g., Nat’l Rsch. Council et al., supra note 43, at 105. ↑
45. See id. at 34–35. ↑
46. See Weinmeyer et al., supra note 47, at 1020. ↑
47. Id. at 1021. ↑
48. Id. ↑
49. Id. at 18. For example, some states, such as New Jersey, New York, Michigan, New Hampshire, and Washington, have developed drinking water guidelines to address per‑ and polyfluoroalkyl (PFAS) contamination in drinking water. Gloria B. Post, Recent US State and Federal Drinking Water Guidelines for Per‐ and Polyfluoroalkyl Substances, 40 Env’t Toxicol & Chem 550, 560 (2021). These guidelines are beneficial because they impose greater safety standards than the EPA. See id. at 561–62. ↑
50. James VanDerslice, Drinking Water Infrastructure and Environmental Disparities: Evidence and Methodological Considerations, 101 Am. J. Pub. Health (Supp.) S109, S109 (2011). ↑
51. Id. at S110–11. ↑
52. Well Components (illustration), in Learn About Private Water Wells, U.S. EPA: Private Wells, https://www.epa.gov/privatewells/learn-about-private-water-wells [https://perma.cc/J64Z-T43Z] (last updated Oct. 1, 2025). ↑
53. Bowen et al., supra note 39, at 429. ↑
54. Id. ↑
55. Id.; see Gunter F. Craun et al., Causes of Outbreaks Associated with Drinking Water in the United States from 1971 to 2006, 23 Clin Microbiol Rev. 507, 509, 514 (2010). Between 1971 and 2006, improvements to public water systems lead to decreases in waterborne disease outbreaks. Id. Such decreases were not noted in private water systems. Id. at 514 (describing how “the annual proportion of drinking water outbreaks associated with individual [private] water systems increased” in the same period the proportion decreased in public water systems). One contributing factor to these improvements is “substantial modifications to water systems.” Id. at 509. ↑
56. Jacqueline MacDonald Gibson et al., Children Drinking Private Well Water Have Higher Blood Lead than Those with City Water, 117 PNAS 16898,16898–99 (2020). ↑
57. Id. ↑
58. Id. at 16899. ↑
59. See Tyler D. Johnson et al., Estimating Domestic Well Locations and Populations Served in the Contiguous U.S. for Years 2000 and 2010, 687 Sci. Total Env’t 1261 (2019). ↑
60. Id. There has not been recent mapping of private wells in the United States. The 1990 census was the last nationally consistent survey of home water sources. Id. at 1262. This census has been used by subsequent studies investigating private wells and contamination such as work carried out by Johnson and Belitz (2017). Id.; see also Debbie Lee & Heather M. Murphy, Private Wells and Rural Health: Groundwater Contaminants of Emerging Concern, 7 Current Env’t Health Reps. 129, 129 (2020) (citing the studies of Johnson and Belitz). ↑
61. See Lee & Murphy, supra note 66, at 129; Claire Mullaney & Michele Okoh, A Drop in the Bucket: North Carolina’s Neglected Problem of Private Well Water Contamination, 3 N.C. C.R.L. Rev. 1, 6 (2023). ↑
62. Johnson et al., supra note 65, at 1262. This change in density is supported by the presence of few domestic well users in high‑density urban areas as compared to the presence of more private well households in sparsely populated rural areas. Id. ↑
63. Id. at 1269. ↑
64. Lee & Murphy, supra note 66. ↑
65. Shannon M. Monnat, U.S. Rural Population Health and Aging in the 2020s, 35 Pub. Pol’y & Aging Rep. 3, 3 (2025) (describing how rural America faces three demographic trends, one of which being population loss). ↑
66. Private Drinking Water and Public Health, CDC: Env’t Health Servs. (Apr. 22, 2024), https://www.cdc.gov/environmental-health-services/php/water/private-water-public-health.html [https://perma.cc/C3TL-ZA58]. ↑
67. Water Res. Mission Area, People Using Domestic Supply Wells per Square Kilometer (illustration), in Water Res. Mission Area, People Using Domestic Supply Wells per Square Kilometer, U.S. Geological Surv., https://www.usgs.gov/media/images/people-using-domestic-supply-wells-square-kilometer [https://perma.cc/9LFR-RW56] (depicting data from a 2017 study relying on 1990 census data, sourced from Tyler Johnson & Kenneth Belitz, Domestic Well Locations and Populations Serve in the Contiguous U.S.: 1990, 607 Sci. Total Env’t 658 (2017)). ↑
68. Id. ↑
69. Id. ↑
70. Yan Zheng & Sara V. Flanagan, The Case for Universal Screening of Private Well Water Quality in the U.S. and Testing Requirements to Achieve It: Evidence from Arsenic, 125 Env’t Health Persps., no. 8, Aug. 2017, at 085002-1. ↑
71. Johnson et al., supra note 65, at 1262. ↑
72. Private Drinking Water and Public Health, supra note 72. ↑
73. “Radon and other naturally occurring radionuclides emit ionizing radiation and consequently are carcinogens.” Leslie A. DeSimone, U.S. Dep’t of the Interior, U.S. Geological Surv., Sci. Investigations Rep. 2008-5227, Quality of Water from Domestic Wells in Principle Aquifers of the United States, 1991–2004, at 37 (2009), https://pubs.usgs.gov/sir/2008/5227/includes/sir2008-5227.pdf [https://perma.cc/4HLD-AMEV]. Radionuclides are found in some wells. Id. at 38. Other contaminants include benzene, toluene, ethylbenzene, copper, and manganese. Private Drinking Water and Public Health, supra note 72. ↑
74. Lynda Knobeloch et al., Private Drinking Water Quality in Rural Wisconsin, 75 J. Env’t Health 16, 17 (2013). ↑
75. Rogan & Brady, supra note 16, at 1600. The presence of these pollutant chemicals is mostly at concentrations below federal public water standards. Id. It should be noted that contamination could lead to benefits and annoyances. Id.; see also Paul J. Squillace et al., VOCs, Pesticides, Nitrate, and Their Mixtures in Groundwater Used for Drinking Water in the United States, 36 Env’t Sci. & Tech. 1923 (2002) (describing a study of the negative effects of pollutant chemicals). ↑
76. See H. Lawinger et al., U.S. Dep’t of Health & Hum. Servs., CDC, Annual Report: Waterborne Disease Outbreaks in the United States, 2021 18 (2023), www.cdc.gov/healthy-water-data/media/pdfs/2024/04/2021_Annual_Waterborne_Disease_Surveillance_Report.pdf [https://perma.cc/984D-RA8S] (discussing how groundwater sources have the most known cases of drinking water-associated outbreaks). ↑
77. See Private Drinking Water and Public Health, supra note 72; see also Craun et al., supra note 61, at 514; Joan M. Brunkard et al., Surveillance for Waterborne Disease Outbreaks Associated with Drinking Water–United States, 2007– 2008, 60 Morb & Mort Wkly. Rep. 38, 38–39 (2011). ↑
78. Craun et al., supra note 61, at 522 (“EPA regulations that protect public drinking water systems do not apply to individual water systems . . . . The installation of these systems . . . may be regulated by state or local authorities, but the individual owners are usually responsible for ensuring that their water is safe once the system is in operation.”). ↑
79. Rogan & Brady, supra note 16, at 1599. Total coliforms are a group of related bacteria that are not harmful for the most part but can indicate the presence of other bacteria, parasites, and viruses that can have negative health impacts. Revised Total Coliform Rule and Total Coliform Rule, U.S. EPA, https://www.epa.gov/dwreginfo/revised-total-coliform-rule-and-total-coliform-rule [https://perma.cc/V6YJ-GUWZ] (last updated Feb. 19, 2025). ↑
80. Rogan & Brady, supra note 16. ↑
81. See generally Outbreak and Case Definitions, CDC: Unexplained Respiratory Disease Outbreaks (URDO) (May 28, 2024), https://www.cdc.gov/urdo/php/surveillance/outbreak-case-definitions.html [https://perma.cc/MSB5-X7TK] (defining outbreak). ↑
82. See Rogan & Brady, supra note 16. ↑
83. Id. at 17; Private Drinking Water and Public Health, supra note 72. ↑
84. VanDerslice, supra note 56, at S111. ↑
85. Figure 19 (illustration), in John Drage, 6.3 Vulnerability to Contamination, in Domestic Wells: Introduction and Overview 34 (2022), https://books.gw-project.org/domestic-wells-introduction-and-overview/chapter/vulnerability-to-contamination [https://perma.cc/L5C3-Z5VW]. ↑
86. Id.; Well Components, supra note 58. ↑
87. See Rogan & Brady, supra note 16, at 1599. ↑
88. Id. ↑
89. Brandon Hunter et al., Evaluation of Private Well Contaminants in an Underserved North Carolina Community, 789 Sci. Total Env’t, no. 147823, Oct. 2021, at 1, 2. ↑
90. Water Well Safety, CDC: Drinking Water (June 4, 2024), https://www.cdc.gov/drinking-water/safety/index.html?utm [https://perma.cc/BG8Q-7RMR]. ↑
91. Rogan & Brady, supra note 16, at 1599. ↑
92. Id. ↑
93. Id. ↑
94. Johnson et al., supra note 65, at 1262. ↑
95. Id.; see, e.g., Bryan R. Swistock et al., A Survey of Lead, Nitrate and Radon Contamination of Private Individual Water Systems in Pennsylvania, J. Env’t Health, Mar. 1993, at 6, 7. ↑
96. See Hunter et al., supra note 95, at 6 (“Over half of septic tanks in the United States are over 30 years old and about one‑fifth are malfunctioning, resulting in groundwater contamination.”). ↑
97. Off. of Water, U.S. EPA, EPA 815‑R‑06‑014, Economic Analysis for the Final Ground Water Rule ES‑1 (2006), https://downloads.regulations.gov/EPA‑HQ‑OW‑2018‑0780‑0214/content.pdf [https://perma.cc/746Y‑LA67]. ↑
98. Id. at 2‑2. ↑
99. Septic Systems and Drinking Water, U.S. EPA: Septic Sys., https://www.epa.gov/septic/septic-systems-and-drinking-water [https://perma.cc/JXJ8-6NK6] (last updated Aug. 7, 2025); see also infra Section III.C.2. ↑
100. Private Drinking Water and Public Health, supra note 72. ↑
101. See Off. of Commc’ns & Publ’g, Groundwater—The Invisible and Vital Resource, U.S. Geological Surv.: Featured Story (Jan. 21, 2015), https://www.usgs.gov/news/featured-story/quality-nations-groundwater?utm [https://perma.cc/73KQ-988D] (“Contaminants from geologic sources . . . accounted for about 80 percent of contaminant concentrations that exceeded a human‑health benchmark.”). Understanding the impact that geological features and human activities have on groundwater quality helps determine water quality risks. See id. ↑
102. Swistock et al., supra note 17, at 62. ↑
103. Id. at 63. ↑
104. See id. at 64. ↑
105. See id. at 63. ↑
106. Knobeloch et al., supra note 80, at 17. ↑
107. Id. ↑
108. Zheng & Flanagan, supra note 76, at 085002‑1. ↑
109. See Yan Zheng & Joseph D. Ayotte, At the Crossroads: Hazard Assessment and Reduction of Health Risks from Arsenic in Private Well Waters of the Northeastern United States and Atlantic Canada, 505 Sci. Total Env’t 1237, 1238 (2015). ↑
110. Zheng & Ayotte, supra note 115, at 1237. ↑
111. Private Drinking Water and Public Health, supra note 72. ↑
112. Id. ↑
113. Zheng & Ayotte, supra note 115, at 1238. ↑
114. Id. ↑
115. Zheng & Flanagan, supra note 76, at 085002‑1. ↑
116. Id. The EPA’s standard for public wells is an MCL of 10 μg/L. Id. ↑
117. Commc’ns & Publ’g, The Quality of the Nation’s Groundwater: Progress on a National Survey, U.S. Geological Surv., https://www.usgs.gov/news/featured-story/quality-nations-groundwater-progress-national-survey [https://perma.cc/8DXY-DGPN] (last updated Sep. 1, 2022) (describing the 68 principal aquifers that source 50 percent of drinking water in the United States, including both public and private water systems). ↑
118. Gibson et al., supra note 62, at 16899 (discussing how the “vast majority of private water systems are wells serving a single household”); Flanagan & Zheng, supra note 19, at 40 (articulating that a majority, around 98 percent, of domestic water supplies “which serve fewer than 25 people or 15 households . . . are from groundwater sources”). ↑
119. Patrick Lachassagne, What Is Groundwater? How to Manage and Protect Groundwater Resources, 76 Annals Nutrition & Metabolism (Supp. 1) 17, 17– 19, 22 (2021). ↑
120. Id. at 20. ↑
121. Private Drinking Water and Public Health, supra note 72. Corrosion also presents similar contamination for public water systems. Id. ↑
122. Danielle J. Carlin et al., Arsenic and Environmental Health: State of the Science and Future Research Opportunities, 124 Env’t Health Persps. 890, 890 (2016). ↑
123. Gibson et al., supra note 62, at 16898. Lead poisoning is preventable according to the CDC and the World Health Organization, and measures have been taken by governments to reduce exposure. Kelsey J. Pieper et al., Incidence of Waterborne Lead in Private Drinking Water Systems in Virginia, 13 J. Water & Health 897, 897 (2015); e.g., Connor Giffin, Louisville Housing Registry Aimed at Child Lead Exposure Takes Effect. Here’s How It Works, Louisville Courier J. (Dec. 9, 2024, at 12:53 PM), https://www.courier-journal.com/story/news/local/2024/12/09/childhood-lead-exposure-in-louisville-could-be-reduced-under-new-law/76858705007 [https://perma.cc/E7PP-5YWS]. ↑
124. Pieper et al., supra note 129, at 898. ↑
125. See Bruce Lanphear et al., Lead Poisoning, 391 NEJM 1621 (2024). ↑
126. Id. at 1622. Exposure to lead continues from other sources including “lead paint in older homes, deposition of leaded gasoline in soil, . . . and emissions from industrial plants and incinerators.” Id. ↑
127. Private Drinking Water and Public Health, supra note 72. ↑
128. JoAnn Burkholder et al., Impacts of Waste from Concentrated Animal Feeding Operations on Water Quality, 115 Env’t Health Persps. 308, 308–09 (2007). ↑
129. Id. ↑
130. William J. Showers et al., Nitrate Contamination in Groundwater on an Urbanized Dairy Farm, 42 Env’t Sci. & Tech. 4683, 4683 (2008). ↑
131. Emily K. Burchfield & Katherine S. Nelson, Agricultural Yield Geographies in the United States, 16 Env’t Rsch. Letters, no. 5, 2021, at 1, 11 (mentioning the close relationship between rural and agricultural communities). ↑
132. Showers et al., supra note 136, at 4683 (reflecting data from the late twentieth and early twenty‑first centuries). ↑
133. Private Drinking Water and Public Health, supra note 72. ↑
134. Off. of Water, U.S. EPA, EPA 816‑F‑05‑021, What to Do After the Flood (2005), https://www.epa.gov/sites/default/files/2015-05/documents/epa816f05021.pdf [https://perma.cc/73GX-3CKM]. ↑
135. Private Drinking Water and Public Health, supra note 72. ↑
136. See generally Kyla R. Drewry et al., Using Inundation Extents to Predict Microbial Contamination in Private Wells After Flooding Events, 58 Env’t Sci. & Tech. 5220 (2024). ↑
137. Id. ↑
138. See Potential Well Water Contaminants and Their Impacts, U.S. EPA: Private Wells, https://www.epa.gov/privatewells/potential-well-water-contaminants-and-their-impacts?utm [https://perma.cc/MCB5-9GMH] (last updated July 21, 2025). ↑
139. See generally J. Tom Mueller & Stephen Gasteyer, The Widespread and Unjust Drinking Water and Clean Water Crisis in the United States, 12 Nature Commc’ns, no. 3544, 2021, at 1. ↑
140. Catherine Zeman et al., New Questions and Insights into Nitrate/Nitrite and Human Health Effects: A Retrospective Cohort Study of Private Well Users’ Immunological and Wellness Status, J. Env’t Health, Nov. 2011, at 8, 13–14. Nitrates may be found in animal wastes. See E.V.S. Prakasa Rao & K. Puttanna, Nitrates, Agriculture and Environment, 79 Current Sci. 1163, 1164 (2000). ↑
141. Zeman et al., supra note 146, at 8, 15. ↑
142. Zheng & Flanagan, supra note 76, at 085002‑1–085002‑2. ↑
143. Id. at 085002‑1. ↑
144. Id. High levels of arsenic have also been linked to depression because of long‑term exposure in Wisconsin. Knobeloch et al., supra note 80, at 19. Further, the NRC noted other noncancerous conditions are associated with chronic exposure to arsenic, including cardiovascular disease, diabetes, nonneoplastic respiratory changes, and negative pregnancy and child development outcomes. Zheng & Flanagan, supra note 76, at 085002‑1. Most alarming are the in utero and early life complications from exposure to arsenic which, even at low levels, impair fetal development. See generally Yu‑Hsuan Shih et al., Association Between Prenatal Arsenic Exposure, Birth Outcomes, and Pregnancy Complications: An Observational Study Within the National Children’s Study Cohort, Env’t Rsch., Apr. 2020, at 1, 7. ↑
145. See Alan D. Woolf et al., Drinking Water From Private Wells and Risks to Children, Am. Acad. Pediatrics, Feb. 2023, at 1, 3. ↑
146. Pieper et al., supra note 129, at 897; see also Knobeloch et al., supra note 80, at 17–18. Three cases of methemoglobinemia were observed in infants in Wisconsin that became ill after being fed formula that was contaminated with nitrate. Knobeloch et al., supra note 80, at 18–19. ↑
147. Gibson et al., supra note 62, at 16903. ↑
148. Id. Lead is a neurotoxin, meaning that prior exposure for children can lead to increased risks of decreased IQ, behavioral problems, and poor school performance. Id. at 16898. The Agency for Toxic Substances and Disease Registry found that even the “lowest blood lead levels are associated with serious adverse effect.” Id. (internal quotations omitted). Exposures might even lead to fetal death. Pieper et al., supra note 129, at 897 (citing Marc Edwards et al., Elevated Blood Lead Levels in Young Children Due to Lead‑Contaminated Drinking Water: Washington, DC, 2001–2004, 43 Env’t Sci. Tech. 1618 (2009); Mary Jean Brown et al., Association Between Children’s Blood Lead Levels, Lead Service Lines, and Water Disinfection, Washington, DC, 1998–2006, 111 Env’t Rsch. 67 (2011)). ↑
149. Gibson et al., supra note 62, at 16899. ↑
150. Bowen et al., supra note 39, at 428; see also Flanagan & Zheng, supra note 19, at 40; see also Kristen M.C. Malecki et al., Private‑Well Stewardship Among a General Population Based Sample of Private Well‑Owners, 601–02 Sci. Total Env’t 1533, 1534 (2017). ↑
151. Salzman, supra note 11, at 3. ↑
152. Brian G. Blackburn et al., Surveillance for Waterborne‑Disease Outbreaks Associated with Drinking Water—United States, 2001–2002, Morb & Mortal Wkly. Rep.: Surveil. Summaries, Oct. 22, 2004, at 1, https://www.cdc.gov/MMWR/Preview/MMWRhtml/ss5308a4.htm [https://perma.cc/R2T7-QPNM]. ↑
153. David A. Keiser et al., Water Works: Causes and Consequences of Safe Drinking Water in America 27 (2023), https://joseph-s-shapiro.com/research/DrinkingWaterPollution.pdf [https://perma.cc/DZF8-JXD7] (“The Safe Drinking Water Act’s loans to cities decrease pollution, and in total [result in] a 50 percent decline in the share of water pollution exceeding health standards between 2003 and 2019.”). ↑
154. See id. at 1 (“The 1974 US Safe Drinking Water Act was esablished to ‘protect the nation’s drinking water from harmful biological and chemical contaminants.’”) (citation omitted); Weinmeyer et al., supra note 47, at 1019. ↑
155. See Weinmeyer et al., supra note 47, at 1020. ↑
156. Id. ↑
157. Id. ↑
158. Id. at 1021. ↑
159. Id. ↑
160. Id. ↑
161. Id. at 1023. ↑
162. Monica M. Arienzo et al., Naturally Occurring Metals in Unregulated Domestic Wells in Nevada, USA, Sci. Total Env’t, Dec. 10, 2022, at 1, 2. The Healthy Nevada Project surveyed drinking water samples from 174 households with private wells. Id. at 1. Researchers found that 22 percent had arsenic concentrations greater than the EPA maximum contaminant level (MCL) of 10 μg/L. Id. These samples exceeded federal, state, or health‑based guidelines, as well, with 8 percent of households showing elevated levels of uranium and iron, 6 percent for lithium and manganese, 4 percent for molybdenum, and 1 percent for lead. Id. ↑
163. Id. ↑
164. Id. at 4. ↑
165. Weinmeyer et al., supra note 47, at 1020. ↑
166. Gibson et al., supra note 62, at 16899. ↑
167. Rogan & Brady, supra note 16, at 1601. ↑
168. Weinmeyer et al., supra note 47, at 1023. ↑
169. See id. ↑
170. See id.; see also Zheng & Flanagan, supra note 76; Zheng & Ayotte, supra note 115, at 1238. Millions of Americans become sick every year from drinking contaminated water. See Zheng & Flanagan, supra note 76, at 085002‑2. They experience cancers, upset stomachs, and birth defects. See Zheng & Ayotte, supra note 115, at 1238. ↑
171. See Arienzo et al., supra note 168, at 4, 9. ↑
172. Id. at 5. ↑
173. Id. at 9. ↑
174. Drinking Water Regulations, U.S. EPA: Drinking Water Requirements for States & Pub. Water Sys., https://www.epa.gov/dwreginfo/drinking-water-regulations [https://perma.cc/ZV5T-KW6F] (last updated Dec. 10, 2024). ↑
175. Revised Total Coliform Rule and Total Coliform Rule, supra note 85. ↑
176. Id. ↑
177. See id. ↑
178. National Primary Drinking Water Regulations: Ground Water Rule, 71 Fed. Reg. 65574 (Nov. 8, 2006) (to be codified at 40 C.F.R. pts. 9, 141, 142). ↑
179. Ground Water Rule, U.S. EPA: Drinking Water Requirements for States & Pub. Water Sys., https://www.epa.gov/dwreginfo/ground-water-rule [https://perma.cc/8QAC-K8DS] (last updated Jan. 7, 2025). ↑
180. National Primary Drinking Water Regulations: Ground Water Rule, 71 Fed. Reg. at 65576. ↑
181. Id. at 65574. ↑
182. Id. ↑
183. Id. at 65576. ↑
184. Id. at 65574. ↑
185. Drinking Water; National Primary Drinking Water Regulations; Total Coliforms (Including Fecal Coliforms and E. Coli), 54 Fed. Reg. 27544 (June 29, 1989) (to be codified at 40 C.F.R. pts. 141, 142). ↑
186. National Primary Drinking Water Regulations: Ground Water Rule, 71 Fed. Reg. at 65576. ↑
187. Id. ↑
188. Id. at 65577. ↑
189. Surface Water Treatment Rules, U.S. EPA: Drinking Water Requirements for States & Pub. Water Sys., https://www.epa.gov/dwreginfo/surface-water-treatment-rules [https://perma.cc/BPZ7-BB9T] (last updated June 11, 2025). Giardia lamblia and Cryptosporidium threaten human health specifically in rural environments as they are more prevalent in these areas than urban areas. See generally Erin A. Dreelin et al., Cryptosporidium and Giardia in Surface Water: A Case Study from Michigan, USA to Inform Management of Rural Water Systems, 11 Int’l J. Env’t Rsch. & Pub. Health 10480 (2014). They are commonly found in untreated water susceptible to being contaminated by animal waste or manure, animal wastewater, and septic tank seepage. Id. ↑
190. Surface Water Treatment Rules, supra note 195; see National Primary Drinking Water Regulations: Ground Water Rule, 71 Fed. Reg. at 65574, 65578. ↑
191. See Surface Water Treatment Rules, supra note 195. ↑
192. Lead and Copper Rule, U.S. EPA: Drinking Water Requirements for States & Pub. Water Sys., https://www.epa.gov/dwreginfo/lead-and-copper-rule [https://perma.cc/PP2F-TQ6Y] (last updated Jan. 7, 2025). ↑
193. Id. ↑
194. See also Pieper et al., supra note 129, at 904. See generally Reduction of Lead in Drinking Water Act, Pub. L. No. 111‑380, 124 Stat. 4131. ↑
195. Pieper et al., supra note 129, at 904. ↑
196. Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92‑500, 86 Stat. 816. ↑
197. See N. William Hines, History of the 1972 Clean Water Act: The Story Behind How the 1972 Act Became the Capstone on a Decade of Extraordinary Environmental Reform 2 (Univ. of Iowa, Legal Stud. Rsch. Paper No. 12‑12, 2012). ↑
198. 33 U.S.C. § 1362(7). “Navigable waters” includes waters of the United States including the territorial seas. Id. ↑
199. Summary of the Clean Water Act, U.S. EPA: L. & Reguls., https://www.epa.gov/laws-regulations/summary-clean-water-act [https://perma.cc/EL5B-6BQQ] (last updated May 22, 2025). ↑
200. Betsy Lawton, Wetlands Essential to Combatting the Health Effects of Climate Change Are at Risk, Network for Pub. Health L.: News & Insights (Sep. 19, 2023), https://www.networkforphl.org/news-insights/wetlands-essential-to-combatting-the-health-effects-of-climate-change-are-at-risk [https://perma.cc/53K5-49YT]. The CWA’s protection of the nation’s waters was revised by the Supreme Court in Sackett v. EPA, effectively removing federal protection for wetlands without a continuous surface connection. James M. McElfish, Jr., What Comes Next for Clean Water? Six Consequences of Sackett v. EPA, Env’t L. Inst. (May 26, 2023), https://www.eli.org/vibrant-environment-blog/what-comes-next-clean-water-six-consequences-sackett-v-epa [https://perma.cc/5W2L-7QQ7]. For those states that rely completely on the CWA, these wetlands have no protections. Id.; see also Sackett v. EPA, 598 U.S. 651 (2023). ↑
201. See, e.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905). ↑
202. See, e.g., id. In Jacobson, the Supreme Court underscored the authority of states to pass regulations to promote public health via their police powers. Id. at 35. In this case, the Court noted the power of the government to require vaccinations for smallpox through local governmental entities, such as health departments. Id. ↑
203. Katlyn Schmitt et al., A State‑by‑State Comparison of Policies That Protect Private Well Users, 34 J. Expo Sci. & Env’t Epidemiol 155, 155 (2024). ↑
204. Bowen et al., supra note 39, at 429–30. ↑
205. Schmitt et al., supra note 209, at 156–58. ↑
206. See, e.g., Private Well Program, Va. Dep’t of Health, https://www.vdh.virginia.gov/environmental-health/private-well-program [https://perma.cc/RS24-SQQ8] (last updated Feb. 5, 2025). The Virginia Department of Health has a private well program that allows for well records requests, construction information, and well quality tools. Id. ↑
207. Schmitt et al., supra note 209, at 157. ↑
208. See, e.g., Sustainable Groundwater Management Act (SGMA), Cal. Dep’t of Water Res.: Programs, https://water.ca.gov/programs/groundwater-management/sgma-groundwater-management [https://perma.cc/D57N-2SG8]. ↑
209. Sean Lyness, Groundwater Law’s Limits, 48 Environs Env’t L. & Pol’y J. 1, 6 (2024). ↑
210. Id. at 6. For example, Texas has “groundwater conservation districts,” and local governments are generally responsible for administering and controlling groundwater supplies. Id. at 8. ↑
211. Bowen et al., supra note 39, at 431. ↑
212. 2024 Conn. Acts 24‑68 (Reg. Sess.). ↑
213. Michael Blazewicz et al., An Assessment of Drinking Water Systems in Connecticut, in Natural and Engineered Solutions for Drinking Water Supplies: Lessons from the Northeastern United States and Directions for Global Watershed Management 17, 22 (Emily Alcott et al. eds., 2013). Connecticut experienced stressed and overextended drinking water sources as early as the mid‑1800s because of the Industrial Revolution and rapidly growing towns. Id. at 21. In the early 1900s, the New Haven Water Company (NHWC) began forestry initiatives to acknowledge the role that timber growth plays in protecting water quality. Id. at 22. The early NHWC lands were mostly located in the Eli Whitney Forest. Id. The NHWC also sought to manage forests for their aesthetic value. Id. ↑
214. Bowen et al., supra note 39, at 428, 431. ↑
215. Id. at 428–29; see also Erika K. Wallender et al., Contributing Factors to Disease Outbreaks Associated with Untreated Groundwater, 52 Groundwater 886 (2014). ↑
216. Bowen et al., supra note 39, at 429 (citing Swistock et al., supra note 17, at 60); see also supra Section II.A; Wallender et al., supra note 221, at 887–88. ↑
217. Gibson et al., supra note 62, at 16904. ↑
218. Swistock et al., supra note 17, at 63. ↑
219. Bowen et al., supra note 39, at 431. ↑
220. Id. at 429. ↑
221. Swistock et al., supra note 17, at 60. ↑
222. Id. ↑
223. Id. ↑
224. Bowen et al., supra note 39, at 428. ↑
225. Id. at 429, 433. ↑
226. Id. at 433–44. ↑
227. 2024 Conn. Acts 24‑68, § 16(b)(3) (Reg. Sess.). The law requires regulations to: “(A) provide for notification of the permit to the public water supplier, (B) address the (i) quality of the water supplied from the well, (ii) means and extent to which the well shall not be interconnected with the public water supply, (iii) need for a physical separation and the installation of a reduced pressure device for backflow prevention . . . .” Id. ↑
228. N.C. Gen. Stat. § 87‑97 (2023). ↑
229. Id. §§ 87‑97(a), (c). ↑
230. Id. § 87‑97(b2)(1). ↑
231. Id. § 87‑97(f1); see also About Water Disinfection with Chlorine and Chloramine, CDC: Drinking Water (Feb. 14, 2024), https://www.cdc.gov/drinking-water/about/about-water-disinfection-with-chlorine-and-chloramine.html [https://perma.cc/VLN3-2DAS]. Chlorination is the process of adding chlorine to disinfect drinking water. Philip C.W. Cheung, A Historical Review of the Benefits and Hypothetical Risks of Disinfecting Drinking Water by Chlorination, 8 J. Env’t & Ecol 73, 77 (2017) (discussing how chlorine disinfects water supplies). ↑
232. § 87-97(f1). ↑
233. George et al., supra note 12, at 355. ↑
234. See Bowen et al., supra note 39, at 431, 433. ↑
235. Id. at 429. ↑
236. Id. at 431. ↑
237. Id. at 430. ↑
238. See Bowen et al., supra note 39, at 433–34 (“The existence of a state‑level policy does not necessarily translate to a real‑world change in well water quality control procedures. Even in states with standards for water quality testing, testing is typically infrequent and not conducted at all.”) (citations omitted). ↑
239. Raquel I. Sabogal & Brian Hubbard, Improving State and Local Capacity to Assess and Manage Risks Associated with Private Wells and Other Drinking Water Systems Not Covered by the Safe Drinking Water Act, 78 J. Env’t Health 40, 40 (2015) (“Where state testing requirements do exist, testing is usually infrequent . . . .”). ↑
240. Flanagan & Zheng, supra note 19, at 40. ↑
241. Zheng & Flanagan, supra note 76, at 085002‑4. States such as Connecticut require the identification of wells and set the frequency of water quality testing for the well supply. 2024 Conn. Acts 24‑68, § 16(b)(3) (Reg. Sess.). ↑
242. See, e.g., Swistock et al., supra note 17, at 65. ↑
243. Id. ↑
244. Bowen et al., supra note 39, at 430. ↑
245. Or. Rev. Stat. § 448.271 (2009). ↑
246. See Or. Water Res. Dep’t, OHA 8316, Water Well Owner’s Handbook: A Guide to Water Wells in Oregon 32 (2015), https://www.oregon.gov/oha/ph/healthyenvironments/drinkingwater/sourcewater/domesticwellsafety/Documents/OHA%208316%20Well%20Water%20Handbook%20Final.pdf [https://perma.cc/ADN3-ZZFH]. Testing for arsenic is required in Oregon because of the severe health risks caused by high contamination levels, including skin problems, nervous system issues, circulatory problems, and cancer when there is long‑term exposure. Id. ↑
247. Id. ↑
248. See id. at 31, 39. ↑
249. Id. ↑
250. Id. at 39. ↑
251. See id. ↑
252. See id. ↑
253. See Brenda O. Hoppe et al., Private Well Testing in Oregon from Real Estate Transactions: An Innovative Approach Toward a State‑Based Surveillance System, 126 Pub. Health Rep. 107, 112 (2011). ↑
254. See id. ↑
255. See Jesse J. Richardson, Jr., Receivership: Another Option for Partition of Heirs Property, 120 W. Va. L. Rev. 917, 918 (2018). The term “heirs property” refers to a form of property ownership where owners have acquired the property through inheritance. Id. This form of ownership often does not have the assistance of probate, and the property usually does not have title that is clouded. Id. ↑
256. Bowen et al., supra note 39, at 430. ↑
257. Richardson, Jr., supra note 261. ↑
258. Id. ↑
259. 23 R.I. Gen. Laws § 23‑1‑5.3 (2024). ↑
260. Id. § 23‑1‑5.3(6)(iv). ↑
261. Id. §§ 23‑1‑5.3(6)(i), (6)(iii). ↑
262. Id. § 23‑1‑5.3(6)(iv). ↑
263. Id. § 23‑1‑5.3(6)(vii). ↑
264. Id. § 23‑1‑5.3(5). ↑
265. Richardson, Jr., supra note 261, at 924. ↑
266. Zheng & Flanagan, supra note 76, at 085002‑4 (citing Flanagan et al., Arsenic in Private Well Water Part 1 of 3: Impact of the New Jersey Private Well Testing Act on Household Testing and Mitigation Behavior, 562 Sci. Total. Env’t 999 (2016)). ↑
267. Id. ↑
268. Id. ↑
269. See id. ↑
270. Id. ↑
271. Richardson, Jr., supra note 261; 23 R.I. Gen. Laws § 23‑1-5.3 (2024). ↑
272. 2024 Conn. Acts 24-68, § 16(c)(2) (Reg. Sess.). ↑
273. Id. § 16(d). ↑
274. Id. § 16(c)(2). ↑
275. Id. ↑
276. Id. ↑
277. Heather Chappells et al., Arsenic in Private Drinking Water Wells: An Assessment of Jurisdictional Regulations and Guidelines for Risk Remediation in North America, 12 J. Water & Health 372, 384 (2014) (describing “rules related to disclosure of test results” to home buyers); Bowen et al., supra note 39, at 430 (discussing the fact that landlords have rules related to leasing property with a private well on site). ↑
278. Bowen et al., supra note 39, at 431. ↑
279. Chappells et al., supra note 283, at 384. ↑
280. See id. ↑
281. See id.; Brendalynn Hoppe et al., High Resolution Modeling of Agricultural Nitrogen to Identify Private Wells Susceptible to Nitrate Contamination, 12 J. Water & Health 702, 704 (2014). The disclosure requirement requires the provision of information. See Chappells et al., supra note 283, at 384. This means that there is no mandate that the well be repaired, or action be taken, to improve the water quality. See id. ↑
282. Chappells et al., supra note 283, at 384. ↑
283. Id. ↑
284. Salzman, supra note 11, at 13–16. ↑
285. Id. at 9. ↑
286. Id. ↑
287. Ge Sun et al., Impacts of Multiple Stresses on Water Demand and Supply Across the Southeastern United States, 44 J. Am. Water Res. Ass’n 1441, 1441–42 (2008). ↑
288. Id. at 1451; see also Weinmeyer et al., supra note 47. Air temperature and precipitation are the two most important determinants of water availability. Sun et al., supra note 293, at 1449. ↑
289. See, e.g., Thomas M. Missimeret et al., Water Crisis: The Metropolitan Atlanta, Georgia, Regional Water Supply Conflict, 16 Water Pol’y 669 (2014). ↑
290. Id. at 685–86. ↑
291. Josh Serchen et al., Supporting the Health and Well-Being of Indigenous Communities: A Position Paper from the American College of Physicians, 175 Ann Intern Med. 1594, 1604 (2022). The Navajo Nation is located on mountainous lands, making it costly and difficult to create a water system available to residents. Id. Likewise, similar challenges exist in Alaska due to permafrost. Id. ↑
292. Fahad Alzahrani & Alan R. Collins, Impact of Public Water Supply Unreliability on Residential Property Prices in Marion County, West Virginia, 51 Agric. & Res. Econ. Rev. 105, 106 (2022). The estimate includes the cost of connecting all residents to public water and fixing the current infrastructure. Id. ↑
293. Knobeloch et al., supra note 80, at 19. ↑
294. Id. ↑
295. Id. at 17. ↑
296. Bowen et al., supra note 39, at 429. ↑
297. See generally Town of Ennis v. Stewart, 807 P.2d 179, 180 (1991). ↑
298. Potential Well Water Contaminants and Their Impacts, U.S. EPA, https://www.epa.gov/privatewells/potential-well-water-contaminants-and-their-impacts [https://perma.cc/L49F-36DM] (last updated July 21, 2025). ↑
299. See Malecki et al., supra note 156, at 1533. For example, the Wisconsin Department of Natural Resources (DNR) found that only 10 percent of one million well users in the state test their wells according to DNR guidelines. Id. at 1534. ↑
300. See id. ↑
301. Zheng & Flanagan, supra note 76, at 085002-2. ↑
302. Rogan & Brady, supra note 16, at 1600–01. ↑
303. See Mary A. Fox et al., Meeting the Public Health Challenge of Protecting Private Wells: Proceedings and Recommendations from an Expert Panel Workshop, 554 Sci. Total Env’t 113, 116 (2016) (discussing a “movement beyond solely the water infrastructure of pipes and pumps to development of information resources [and] collaborative relationships between water and health agencies”). ↑
304. Rogan & Brady, supra note 16, at 1599–1601. Shock chlorination uses concentrations of chlorine that are 100 to 400 times the amount in municipal water supplies. Id. ↑
305. See id. ↑
306. See id. ↑
307. See id. ↑
308. Id. at 1601. ↑
309. See Malecki et al., supra note 156, at 1538–39, 1541. ↑
310. Id. at 1542. ↑
311. Schmitt et al., supra note 209, at 157. ↑
312. See Katy Hansen et al., Nicholas Inst. for Env’t Pol’y Sols., Env’t Pol’y Innovation Ctr., Uncommitted State Revolving Funds 10, 12 (2022), https://nicholasinstitute.duke.edu/sites/default/files/publications/Uncommitted-State-Revolving-Funds_2.pdf [https://perma.cc/VLU7-UWSD] (describing both the amount of unused funds and that many well owners find the time costs burdensome). The EPA provides states with resources through the Drinking Water State Revolving Fund. Id. at 18 n.33. These funds may remain uncommitted. See id. at 10. ↑
313. Rogan & Brady, supra note 16, at 1599. ↑
314. Id. Private wells can be like public water systems, which are sometimes called community water systems. Maya Spaur et al., Associations Between Private Well Water and Community Water Supply Arsenic Concentrations in the Conterminous United States, 787 Sci. Total Env’t, no. 147555, 2021, at 1, 2–3. However, private wells are limited to geographic boundaries and draw from different aquifer regions. Id. at 2. ↑
315. Rogan & Brady, supra note 16, at 1599. ↑
316. E.g., Spaur et al., supra note 320, at 2. ↑
317. Betsy Lawton, Gaps in Federal and State Laws Leave Private Well Users Vulnerable to Drinking Water Contamination, Network for Pub. Health L.: News & Insights (Apr. 9, 2019), https://www.networkforphl.org/news-insights/gaps-in-federal-and-state-laws-leave-private-well-users-vulnerable-to-drinking-water-contamination [https://perma.cc/NT46-76M5]. ↑
318. See id. ↑
319. Zheng & Flanagan, supra note 76, at 085002-1. ↑
320. Lawton, supra note 323. ↑
321. Id. ↑
322. Id. ↑
323. Id. ↑
324. Id. ↑
325. Id. ↑
326. Id. ↑
327. Id. ↑
328. See Source Water Protection, Ky. Energy & Env’t Cabinet: Env’t Prot., https://eec.ky.gov/Environmental-Protection/Water/Protection/Pages/SWP.aspx [https://perma.cc/2VE7-SWSK]. The 1986 Amendments to the SDWA required states to develop a wellhead protection program for water supplies using groundwater as their water source. Safe Drinking Water Act Amendments of 1986, Pub. L. No. 99-339, § 205, 100 Stat. 642 (1986) (codified as amended at 42 U.S.C. § 300h‑7). ↑
329. Source Water Protection, supra note 334. ↑
330. Id. ↑
331. See id. To fill this gap, several well safety programs have attempted to address this public health issue, and all these programs use the SDWA as their model to some degree. Id. In addition, educational efforts to develop research in this area have emerged across the nation. Id. Scientific and health-based researchers have sought to raise attention to this pressing public health issue. Id. ↑
332. See Gibson et al., supra note 62, at 16898, 16903. Examples of corrosion inhibitors include phosphate or silicates. Id. at 16898. ↑
333. Id. ↑
334. Id. ↑
335. Id. ↑
336. Lawton, supra note 323. ↑
337. Bhubaneswar Pradhan et al., Emerging Groundwater Contaminants: A Comprehensive Review on Their Health Hazards and Remediation Technologies, Groundwater Sustainable Dev., Feb. 2023, at 1. ↑
338. Id. RTF laws protect qualified farmers from nuisance lawsuits by people who attempt to stop their operations after moving into rural areas. See Nat’l Agric. L. Ctr. Staff, States’ Right-To-Farm Statutes, Nat’l Agric. L. Ctr., https://nationalaglawcenter.org/state-compilations/right-to-farm [https://perma.cc/GE97-2CX2] (last updated Apr. 15, 2022). ↑
339. See Ceryes & Heaney, supra note 40. ↑
340. Pradhan et al., supra note 343, at 1. ↑
341. Aiguo Liu et al., Nitrate Contamination in Private Wells in Rural Alabama, United States, 346 Sci. Total Env’t 112, 112 (2005). ↑
342. Id. at 113. ↑
343. See generally Loka Ashwood et al., Property Rights and Rural Justice: A Study of U.S. Right-to-Farm Laws, 67 J. Rural Stud. 120 (2019). ↑
344. Id. at 126. ↑
345. Paul Goeringer et al., Understanding Agricultural Liability: Maryland’s Right-to-Farm Law Can Limit Liability for Maryland Farm, Commercial Fishing, and Seafood Operators, Univ. of Md. Extension, https://extension.umd.edu/resource/understanding-agricultural-liability-marylands-right-farm-law-can-limit-liability-maryland-farm [https://perma.cc/BF6R-G3U2] (last updated May 8, 2025). ↑
346. Id. ↑
347. Benoit v. Saint-Gobain Performances Plastics Corp., 959 F.3d 491, 494, 498, 503 (2d Cir. 2020). ↑
348. Id. at 495. PFOA is a chemical used in making household and commercial products that resist heat, such as Teflon-coated cookware. Id. PFOA levels in blood can impact the liver, immune system, and cholesterol levels and lead to high blood pressure, changes in the thyroid hormone, ulcerative colitis, preeclampsia, and kidney and testicular cancer. Id.; see also PFOA, PFOS and Related PFAS Chemicals, Am. Cancer Soc’y: All About Cancer, https://www.cancer.org/cancer/risk-prevention/chemicals/teflon-and-perfluorooctanoic-acid-pfoa.html [https://perma.cc/CBY4-5MR9] (last updated May 31, 2024) (“Perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) are part of a large group of lab-made chemicals known as perfluoroalkyl and polyfluoroalkyl substances (PFAS).”) (emphasis omitted). ↑
349. Benoit, 959 F.3d at 495, 498. ↑
350. Id. at 496. ↑
351. Id. at 497. ↑
352. Id. at 500 (citing Caronia v. Philip Morris USA, Inc., 5 N.E.3d 11, 15– 16 (2013)). ↑
353. Id. at 497; Caronia, 5 N.E.3d at 14. ↑
354. Benoit, 959 F.3d at 502. ↑
355. Id. at 501. ↑
356. Id. at 508. ↑
357. Id. at 505. ↑
358. Memorandum and Order Regarding Report and Recommendation on Defendants’ Motion to Dismiss at 158, 165–66, Ryan v. Greif, Inc., 708 F. Supp. 3d 148 (D. Mass. 2023) (No. 22-cv-40089). ↑
359. See id. at 166. ↑
360. See generally Laura Anderko & Emma Pennea, Exposures to Per- and Polyfluoroalkyl Substances (PFAS): Potential Risks to Reproductive and Children’s Health, 50 Curr. Probs. Pediatr & Adolesc Health Care, no. 100760, Feb. 2020, at 2. ↑
361. Memorandum and Order Regarding Report and Recommendation on Defendants’ Motion to Dismiss, supra note 364, at 160–62. ↑
362. Blackburn v. Miller-Stephenson Chem. Co., No. CV 930314089, 1998 WL 661445, at *1 (Conn. Super. Ct. Sep. 11, 1998). ↑
363. Id. at *1–2. ↑
364. Id. at *4. ↑
365. Id. at *6–7. ↑
366. Id. at *8. ↑
367. Id. ↑
368. Id. at *5. ↑
369. Id. at *9–10. ↑
370. See generally Gregg P. Macey & Lawrence E. Susskind, The Secondary Effects of Environmental Justice Litigation: The Case of West Dallas Coalition for Environmental Justice v. EPA, 20 Va. Env’t L.J. 431 (2001). ↑
371. Gostin, supra note 6, at 1. ↑
372. Id. ↑
373. See generally Arcipowski et al., supra note 10 (highlighting the fight for healthy and accessible water in rural Kentucky). ↑
374. See id. at 1. ↑
375. See generally Hannah G. Lane et al., A Participatory Process to Engage Appalachian Youth in Reducing Sugar-Sweetened Beverage Consumption, 20 Health Promot Prac. 258 (2019) (describing a participatory research study to reduce the consumption of sugar-sweetened beverages in Central Appalachia). ↑
376. See Arcipowski et al., supra note 10, at 1. ↑
377. Id. at 2. ↑
378. See generally Barrett A. Lee & Gregory Sharp, Ethnoracial Diversity Across the Rural-Urban Continuum, 672 Annals Am. Acad. Pol. & Soc. Sci. 26 (2017). ↑
379. Gostin, supra note 6, at 5. ↑
380. See George et al., supra note 12, at 356. ↑
381. Id. at 346–47. ↑
382. Social Determinants of Health, supra note 37. ↑
383. Zheng & Flanagan, supra note 76, at 085002-4. ↑
384. Id. ↑
385. George et al., supra note 12, at 347. ↑
386. Hoppe et al., supra note 287, at 712. ↑
387. Pannu, supra note 24, at 236. ↑
388. Arcipowski et al., supra note 10, at 1, 3. ↑
389. See infra Section IV.B. ↑
390. See Thomas Macias, Environmental Risk Perception Among Race and Ethnic Groups in the United States, 16 Ethnicities 111, 114, 120 (2016) (finding that non-white individuals had greater concern for environmental threats than white individuals). ↑
391. See VanDerslice, supra note 56, at S110. ↑
392. See id.; Ira Rheingold et al., From Redlining to Reverse Redlining: A History of Obstacles for Minority Homeownership in America, 34 Clearinghouse Rev. 642 (2001); see also Sarah L. Swan, Discriminatory Dualism, 54 Ga. L. Rev. 869, 879– 80 (2020). The term “redlining” comes from the Home Owners Loan Corporation’s color-coding classification system created to identify neighborhood credit ratings. Swan, supra, at 879. Red neighborhoods were deemed “hazardous,” and banks would not lend to them. Id. at 880. Neighborhoods with only one Black household were automatically redlined. Id. ↑
393. Underbounding refers to actions taken by municipal governments to reject the annexation of Black residential areas into corporate boundaries. See Charles S. Aiken, Race as a Factor in Municipal Underbounding, 77 Annals Ass’n Am. Geographers 564, 564–65 (1987). ↑
394. George et al., supra note 12, at 346. ↑
395. Id. ↑
396. Id. ↑
397. Id. ↑
398. See generally Dorceta E. Taylor, Toxic Communities: Environmental Racism, Industrial Pollution, and Residential Mobility (2014). ↑
399. Id. ↑
400. Gibson et al., supra note 62, at 16898. This study assesses whether children in households relying on unregulated private wells have higher blood lead levels and are at increased risk of elevated blood lead levels, compared with children served by regulated water utilities. Id. at 16898–99. ↑
401. Id. at 16899. ↑
402. George et al., supra note 12, at 356. ↑
403. Id. at 354. ↑
404. VanDerslice, supra note 56, at S111. ↑
405. Id. ↑
406. See George et al., supra note 12, at 346. ↑
407. Id. at 347. ↑
408. See George et al., supra note 12, at 355; see also Water Res. Mission Area, supra note 2. ↑
409. See Water Sci. Sch., Groundwater Wells, U.S. Geological Surv. (June 6, 2018), https://www.usgs.gov/water-science-school/science/groundwater-wells? [https://perma.cc/QBG4-QNQP]. ↑
410. See George et al., supra note 12, at 355. ↑
411. Id. (describing results from a study conducted from 2018 to 2020 in four North Carolina counties). ↑
412. George et al., supra note 12, at 346. ↑
413. See Zheng & Flanagan, supra note 76, at 085002-4. ↑
414. Rogan & Brady, supra note 16, at 1600. Nitrates are also concerning for anyone with a compromised immune system. Id. at 1601. ↑
415. Gibson et al., supra note 62, at 16899. This study referenced a review of lead levels in private wells only. Id. The dataset included 59,483 routinely collected blood lead measures from children in Wake County, North Carolina. Id. ↑
416. Id. at 16898. ↑
417. Zheng & Flanagan, supra note 76, at 085002-1. ↑
418. Id. at 085002-4. ↑
419. Id. at 085002-1. Research suggests that elevated arsenic levels in drinking water are associated with low birth weights. Kirsten S. Almberg et al., Arsenic in Drinking Water and Adverse Birth Outcomes in Ohio, 157 Env’t Rsch. 52, 52 (2017). These infants may also be born preterm. Id. ↑
420. Zheng & Flanagan, supra note 76, at 085002-4. This is with greater than 5 μg/L arsenic. Id. ↑
421. Rogan & Brady, supra note 16, at 1600. ↑
422. Knobeloch et al., supra note 80, at 19. ↑
423. Rogan & Brady, supra note 16, at 1602. ↑
424. Carolyn J. Murray et al., Private Well Testing Promotion in Pediatric Preventive Care: A Randomized Intervention Study, Preventive Med. Reps., Dec. 2020, at 1, 2. ↑
425. Katherine Turner, Well-Child Visits for Infants and Young Children, 98 Am. Fam. Physician 347, 349 (2018). ↑
426. Id. at 348–49. ↑
427. About Lead in Drinking Water, CDC: Childhood Lead Poisoning Prevention (Aug. 20, 2025), https://www.cdc.gov/lead-prevention/prevention/drinking-water.html [https://perma.cc/RHK2-VAQ4]. ↑
428. See Safe Drinking Water Act, 42 U.S.C. § 300f(4); see also Public Water Systems, 40 C.F.R. § 141.2 (2004) (defining public water systems and excluding private systems). ↑
429. Gostin, supra note 6, at 5. ↑
430. See, e.g., Rural Cmty. Assistance P’ship, “Well”, (Feb. 2, 2026), https://www.rcap.org/?s=well [https://perma.cc/6B4N-88HB]. ↑
431. See, e.g., id. (demonstrating the wide variety of resources one nongovernmental partner offers as well as its community education and outreach programs). ↑
432. See About Lead in Drinking Water, supra note 433. ↑
433. Anne M. Wengrovitz & Mary Jean Brown, Recommendations for Blood Lead Screening of Medicaid-Eligible Children Aged 1–5 Years: An Updated Approach to Targeting a Group at High Risk, Morb & Mortal Wkly. Rep.: Recommendations & Reps., Aug. 7, 2009, at 1, 1 (“[C]hildren who are eligible for Medicaid have been identified as having an increased risk for lead exposure.”). ↑
434. Id. ↑
435. See, e.g., id. ↑
436. See generally CDC Advisory Comm. on Childhood Lead Poisoning Prevention, Low Level Lead Exposure Harms Children: A Renewed Call for Primary Prevention (2012), https://stacks.cdc.gov/view/cdc/11859 [https://perma.cc/XV4X-N7AJ]. ↑
437. See id. at 4. ↑
438. Id. ↑
439. Id. at 4–6. ↑
440. See Kyle P. Messier et al., Modeling Groundwater Nitrate Exposure in Private Wells of North Carolina for the Agricultural Health Study, 655 Sci. Total Env’t 512, 512–13 (2019). ↑
441. N.C. Gen. Stat. § 87-97 (2023) (describing the permitting and testing of private drinking water wells). ↑
442. Residential and Agricultural Water Quality, N.C. State Extension: Extension Water Res. Workgroups, https://waterresources.ces.ncsu.edu/extension-water-resource-workgroups/residential-and-agricultural-water-quality [https://perma.cc/FG85-AVBS]. ↑
443. About Districts: Overview of Soil & Water Conservation Districts, N.C. Dep’t of Agric. & Consumer Servs.: Soil & Water Conservation, https://www.ncagr.gov/divisions/soil-water-conservation/division-districts/about-districts#OrganizationofSoilWaterConservationDistricts-2819 [https://perma.cc/T6TY-HTM6] (describing how “[t]he state’s 96 local soil and water conservation district boundaries coincide with county borders” with one exception.). ↑
444. Gibson et al., supra note 62, at 16899. ↑
445. Id. ↑
446. Zheng & Flanagan, supra note 76, at 085002-2. Study investigators found that 43 percent of households installed some kind of water treatment and 31 percent switched to drinking bottled water or took some other action. Id. However, 27 percent took no action at all. Id. ↑
447. See, e.g., Private Well Class, https://intercom.help/privatewellclassorg/en [https://perma.cc/XU6J-NZ6C]. ↑
448. George et al., supra note 12, at 346. A study from researchers at the University of North Carolina at Chapel Hill found that 40 percent of wells dug before 2008 belonged to low-income, non-white households. Id. at 355. ↑
449. Flanagan & Zheng, supra note 19, at 40. ↑
450. Swistock et al., supra note 17, at 60. ↑
451. Id. ↑
452. Id. at 65. ↑
453. Gibson et al., supra note 62, at 16899. ↑
454. Zheng & Flanagan, supra note 76, at 085002-4. ↑
455. Malecki et al., supra note 156, at 1534. Well stewardship refers to steps taken to ensure the function and safety of wells. See id. at 1533–34. ↑
456. Id. at 1541. ↑
457. Id. ↑
458. George et al., supra note 12, at 347 (mentioning optimism bias in North Carolina constituting a barrier to participation in well water testing). ↑
459. Id. ↑
460. See generally Zheng & Flanagan, supra note 76. ↑
461. Johnson et al., supra note 65, at 1262. ↑
462. See, e.g., Swistock et al., supra note 17, at 63; see also Malecki et al., supra note 156, at 1541. ↑
463. Knobeloch et al., supra note 80, at 16. ↑
464. Malecki et al., supra note 156, at 1541. ↑
465. See id. at 1541. ↑
466. Zheng & Flanagan, supra note 76, at 085002-1 (describing how arsenic is tasteless and odorless); see also Nitrite in Well Water, Minn. Dep’t of Health, https://www.health.state.mn.us/communities/environment/water/wells/waterquality/nitrate.html [https://perma.cc/7SXK-HZ6S] (last updated Aug. 1, 2025) (stating that there is no difference in taste, smell, or color when nitrates are in the water). ↑
467. Knobeloch et al., supra note 80, at 18. ↑
468. Id. ↑
469. Id. at 16 (“[S]ome homeowners are unaware of the need to conduct these [annual] tests” for nitrate and coliform bacteria.). ↑
470. Id. at 18. ↑
471. Id. ↑
472. Id. ↑
473. See Malecki et al., supra note 156, at 1534. ↑
474. Id. at 1539. ↑
475. See, e.g., id. ↑
476. 2024 Conn. Acts 24-68, § 16(d) (Reg. Sess.). ↑
477. This does not suggest that there are not challenges that can arise among these partnerships, but community involvement in resolving water quality issues has been noted in Washington’s Yakima Valley. See, e.g., Allegra Abramo, Well Water Safety, Univ. of Wash.: Env’t & Occupational Health Scis. (May 31, 2019), https://deohs.washington.edu/hsm-blog/well-water-safety [https://perma.cc/K8PL-PL5X]. ↑
478. See, e.g., Kalahn Taylor-Clark et al., Perceptions of Environmental Health Risks and Communication Barriers Among Low-SEP and Racial/Ethnic Minority Communities, 18 J. Health Care Poor & Underserved (Supp.) 165 (2007). ↑
479. Zheng & Flanagan, supra note 76, at 085002-4. See generally Chappells et al., supra note 283. ↑
480. Malecki et al., supra note 156, at 1541. ↑
481. Zheng & Flanagan, supra note 76, at 085002-5. Similar bias is seen against proactive behaviors in radon testing. See generally Neil D. Weinstein et al., Optimistic Biases in Public Perceptions of the Risk from Radon, 78 Am. J. Pub. Health 796 (1988). ↑
482. Malecki et al., supra note 156. ↑
483. See generally Wendy K. Mariner et al., Jacobson v Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law, 95 Am. J. Pub. Health 581 (2005). ↑
484. Id. ↑
485. See generally id. ↑
486. See generally Jacobson v. Massachusetts, 197 U.S. 11 (1905). The public health powers granted to states, acknowledged as “police power” under the United States Constitution’s Tenth Amendment, are broad. Id. at 25. ↑
487. Gostin, supra note 6, at 3. To defend the common welfare, governments assert their collective powers to tax, inspect, regulate, and coerce. Id. ↑
488. See generally Town of Ennis v. Stewart, 807 P.2d 179 (1991). ↑
489. See Jacobson, 197 U.S. at 27. ↑
490. Becker v. City of Hillsboro, 125 F.4th 844, 859 (8th Cir. 2025). ↑
491. Id. at 849. ↑
492. Id. at 850–51. ↑
493. Id. at 851; Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 n.8 (1992); see also Palazzo v. Rhode Island, 533 U.S. 606, 616 (2001) (finding that regulations, which decreased land value by 93 percent, were not sufficient to trigger the per se treatment established in Lucas). ↑
494. Becker, 125 F.4th at 858. ↑
495. Id. at 858 (citing Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005)). ↑
496. Id. at 859. ↑
497. Id. at 850–51 (describing how the plaintiffs challenged the government’s regulation abilities by alleging that (1) “the City’s regulations constitute[d] an effective permanent physical invasion of their property”; (2) “the regulations effectively den[ied] them all economically viable use of their property”; and (3) the regulations were a regulatory taking). ↑
498. Town of Ennis v. Stewart, 807 P.2d 179, 180–81 (1991). ↑
499. Id.; see also Ennis Mun. Code § 4.10.020(A) (1987). ↑
500. Ennis, 807 P.2d at 180–81. ↑
501. Id. ↑
502. See id.; § 4.10.020(A). The Montana Constitution provides that an individual right to privacy “is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.” Mont. Const. art. II, § 10; see also Ennis, 807 P.2d at 181 (citing Mont. Hum. Rts. Div. v. City of Billings, 649 P.2d 1283, 1287 (1982)). The Stewarts lived on their property since 1936, using only a private well, and Mrs. Doyle lived on her property since 1949, using the same well. Ennis, 807 P.2d at 180–81. ↑
503. Both premises were connected to the town’s sewer system. Ennis, 807 P.2d at 181. After attempts to encourage the defendants to connect to municipal water, the town filed complaints against the Stewarts and Mrs. Doyle in 1989 for violating the ordinance. Id. at 180–81. In Ennis Town Court, all three of the defendants were convicted. Id. at 181. ↑
504. Id. The right of privacy referred to by the district court is found in article II of the Montana Constitution. Id.; Mont. Const. art. II, § 10. ↑
505. Ennis, 807 P.2d at 181–82. ↑
506. Id. at 182. ↑
507. See id. ↑
508. Id. ↑
509. See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 37 (1905) (describing the precedent applicable across the United States). ↑
510. Ennis, 807 P.2d at 180. ↑
511. Zheng & Flanagan, supra note 76, at 085002-2. ↑
512. Id. ↑
513. Id. ↑
514. See Knobeloch et al., supra note 80, at 19. ↑
515. Id. at 18. ↑
516. See Guidelines for Testing Well Water, CDC: Drinking Water (July 1, 2024), https://www.cdc.gov/drinking-water/safety/guidelines-for-testing-well-water.html [https://perma.cc/X233-6664] (noting that water quality indicator tests for E. coli will not show whether the water contains dangerous types of E. coli). ↑
517. See Knobeloch et al., supra note 80, at 17. ↑
518. Id. at 19. ↑
519. Swistock et al., supra note 17, at 65. ↑
520. Drinking Water Awareness – Private Wells, Deschutes Cnty.: Pub. Health, https://www.deschutes.org/health/page/drinking-water-awareness-private-wells [https://perma.cc/HEC9-ZMZE]. ↑
521. Id. ↑
522. Id. ↑
523. See Coastal Plain Water Well Database, S.C. Dep’t Env’t Servs., https://des.sc.gov/programs/bureau-water/hydrology/data/coastal-plain-water-well-database? [https://perma.cc/KFR8-NQXS] (last updated Mar. 2022). ↑
524. Id. ↑
525. See Drinking Water Awareness – Private Wells, supra note 526 (detailing that Deschutes County can only “provide technical assistance and consultative support” regarding well testing). ↑
526. Zoë Read, Disconnected: Thousands in Delaware Lack Access to Safer Public Water, WHYY: Watershed (Jan. 27, 2020), https://whyy.org/articles/disconnected-thousands-in-delaware-lack-access-to-safer-public-water [https://perma.cc/9BLP-FSBM]. ↑
527. See, e.g., Memorandum and Order Regarding Report and Recommendation on Defendants’ Motion to Dismiss, supra note 364, at 3–4, 45 (describing how dangerous certain chemicals are to the public, and yet the case was largely determined on issues regarding personal jurisdiction and failure to state a claim). ↑
528. 2024 Conn. Acts 24-68, § 16(c)(2) (Reg. Sess.). ↑
529. See Chappells et al., supra note 283, at 386. ↑
530. Id. at 373, 378. ↑
531. See, e.g., Available Well Water Tests and Fees, Wake Cnty.: Well Water Testing, https://www.wake.gov/departments-government/onsite-water-protection/groundwater-protection-and-wells/well-water-testing/available-well-water-tests-and-fees [https://perma.cc/CW3X-5A6U]. ↑
532. Id. ↑
533. Chappells et al., supra note 283, at 381, 386–87. ↑
534. Groundwater Storage and the Water Cycle, U.S. Geological Surv. (June 18, 2018), https://www.usgs.gov/special-topics/water-science-school/science/groundwater-storage-and-water-cycle [https://perma.cc/96YC-NKNJ]. ↑
535. See, e.g., Source Water Protection, Team Ky. Energy & Env’t Cabinet: Env’t Prot., https://eec.ky.gov/Environmental-Protection/Water/Protection/Pages/SWP.aspx [https://perma.cc/YQX6-US4E]. ↑
536. Id. ↑
537. See generally Christine A. Klein, Groundwater Exceptionalism: The Disconnect Between Law and Science, 71 Emory L.J. 487 (2022). ↑
538. Id. at 506. ↑
539. Id. at 499. ↑
540. Id. at 511; see also Roath v. Driscoll, 20 Conn. 533, 541, 543–44 (1850). ↑
541. Roath, 20 Conn. at 541. ↑
542. Id. ↑
543. Klein, supra note 543, at 512. ↑
544. See generally Daniel J. Soeder, Chapter 6: Fracking and Water, in Fracking and the Environment: A Scientific Assessment of the Environmental Risks from Hydraulic Fracturing and Fossil Fuels 93–120 (2021). ↑
545. See id. 93–94, 99. ↑
546. Id. at 93. Toxic liquids at the drill site can contaminate shallow aquifers and surface waters. See Daniel J. Soeder, Groundwater Quality and Hydraulic Fracturing: Current Understanding and Science Needs, 56 Groundwater 852, 854 (2018). These chemicals are a risk to groundwater. See id. ↑
547. Rogan & Brady, supra note 16, at 1599, 1602. ↑
548. Chappells et al., supra note 283, at 387. ↑
549. See T. Robert Fetter, Fracking, Toxics, and Disclosure 6–7 (Sep. 2022) (research paper), https://ssrn.com/abstract=4230397 [https://perma.cc/7QAB-P8FX]. ↑
550. Id. at 6, 14. ↑
551. 118.03.1-B-19 Ark. Code R. (2022); Natural Gas Horizontal Well Control Act, W. Va. Code § 22-6A-7(e)(5) (2011); 16 Tex. Admin. Code § 3.29 (c)(1)(A)(i) (2012); Ohio Rev. Code Ann. § 1509.10(A)(9)(a) (2013). ↑
552. 118.03.1-B-19 Ark. Code R. §§ (l), (m). ↑
553. See 25 Pa. Cons. Stat. § 78.51 (2011). ↑
554. Id. §§ 78.51(b)(3), (b)(5). ↑
555. See Jason Schumacher & Jennifer Morrissey, The Legal Landscape of “Fracking”: The Oil and Gas Industry’s Game-Changing Technique Is Its Biggest Hurdle, 17 Tex. Rev. L. & Pol. 239, 267 (2013). The “Halliburton exemption” codified the practice of excluding wastewater from fracking from the hazardous category under the Safe Drinking Water Act. Id. at 267. ↑
556. Lawton, supra note 323. ↑
557. See Foster-Frau, supra note 7. ↑
558. See Wash. Admin. Code § 173-160-040 (2006). ↑
559. See id. ↑
560. See id. ↑
561. Zheng & Flanagan, supra note 76, at 085002-4. ↑
562. See id. at 085002-2, 085002-4–085002-5. ↑
563. Lawton, supra note 323. ↑
564. Bowen et al., supra note 39, at 434. ↑
565. See Smith & Nowell, supra note 19. ↑
566. Zheng & Flanagan, supra note 76, at 085002-2. ↑
567. See Smith & Nowell, supra note 19. The U.S. Geological Survey created HBSLs, historically developed by the National Water-Quality Program (NWQP), for contaminants that were not covered by the U.S. EPA, MCLs, or HHBPs. Id. ↑
568. See id. ↑
569. See id. ↑
570. 2021 Human Health Benchmarks for Pesticides, U.S. EPA: Safe Drinking Water Act, https://www.epa.gov/sdwa/2021-human-health-benchmarks-Pesticides [https://perma.cc/BM9K-UPF7] (last updated Jan. 15, 2025). ↑
571. See, e.g., Pannu, supra note 24, at 241. ↑