September 30, 2008

RALEIGH – North Carolina’s new drought management law likely would permit government regulation of private wells, despite claims to the contrary. That’s the key finding in a new John Locke Foundation Spotlight report.

Click here to view and here to listen to Daren Bakst discussing this Spotlight report.

The report recommends steps lawmakers could take to close the door on regulation. “If legislators have no problem with prohibiting the regulation of water use from private wells, then they should have no issue with clear language that ensures regulation is prohibited,” said report author Daren Bakst, JLF Legal and Regulatory Policy Analyst. “An amendment to the drought management bill for protection of private well owners should be one of the first actions the legislature takes next year.”

The General Assembly enacted its drought management bill, House Bill 2499, during the final days of this year’s legislative session. As the bill moved through the legislative process, some lawmakers had concerns about provisions that would allow local and state government to regulate water use and conservation from private household wells, Bakst said.

“When the drought bill was first introduced, it expressly allowed for local governments to regulate water usage from private wells,” Bakst said. “Eventually, this provision was removed. Later, the bill was amended to include language that actually would have prohibited local and state regulation of private wells.”

The N.C. House initially voted for the language to prohibit private well regulation, Bakst said. “Magically, this language disappeared when the bill went over to the Senate,” he said. “The final bill did not include the prohibition on regulation. As a result, state and local regulation likely could be allowed.”

By the time lawmakers took their final votes on H.B. 2499, the bill had changed so many times that legislators had a hard time keeping up with all the provisions, Bakst said. “One consequence is that numerous organizations have made claims that the bill prohibits regulation of water use from private wells,” he said. “These claims, quite simply, are inaccurate.”

The bill is filled with unclear and misleading language, Bakst said. Among the most misleading provisions is a passage that says the state “shall approve” local water conservation plans if those plans, in part, contain no regulation of “private drinking water wells,” he said.

“This might sound good, but there are two big problems,” Bakst explained. “First, the law does not say the state may approve a local regulation plan only if there are no such regulations. In other words, the state could approve plans with such regulations.”

“Second, this provision applies only to wells that are built for drinking purposes,” Bakst added. “If the well is built for landscaping, for instance, it clearly could be regulated. Even a well used for drinking water still could be regulated if regulators determine that the well was built for other purposes.”

Some of the confusion could be intentional, Bakst said. “Unclear bill language gives the government the wiggle room it needs to achieve its regulatory ends.”

This is especially true for state government, Bakst said. The state can use the declaration of a “water shortage emergency” to adopt restrictions that exceed local government regulations.

“The definition of ‘water shortage emergency’ offers little protection against government intervention,” Bakst said. “Of special concern is language that would allow the government to declare an emergency if a water shortage presents an unspecified threat to the environment. It might even include a threat to an endangered fungus or weed. The legislature went out of its way to make it clear that a threat to the environment by itself could justify an emergency even if it does not present a threat to the public.”

Nothing in the drought management law prevents the state from applying extra regulation to private wells, Bakst said. “There is a reason why the drought bill did not have clear and express language prohibiting regulation of water use from private wells — the legislature did not want to protect against regulation,” he said. “Legislators concerned about private well regulation need to take one simple step: pass unambiguous language to protect private well owners.”

Bakst rejects the argument that no local government or state agency has attempted to regulate private wells. “It’s too early to tell whether the state or a local government will try to use the new law to regulate water use from private wells,” he said. “There is also a realization that today it would be difficult politically to try to regulate water use from private wells. This does not mean that tomorrow will be the same as today.”

Daren Bakst’s Spotlight report, “Private Well Regulation: A Real Possibility for North Carolinians,” is available at the JLF Web site. For more information, please contact Bakst at (919) 828-3876 or [email protected]. To arrange an interview, contact Mitch Kokai at (919) 306-8736 or [email protected].