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Regulating Well Water

posted on Wed, May 28 2014 10:58 am by Eastern Region

The Network was recently contacted by the New Hampshire Department of Environmental Services (DES). The department is interested in helping local authorities regulate well water quality in New Hampshire – specifically through local ordinances requiring water quality testing for new private wells. The DES wondered if it would be better to recommend that locals pass the ordinance based on the local health officer’s nuisance authority, or if it should recommend using the state’s building code as the basis for the ordinance.

The Network researched the question and analyzed both options.

New Hampshire’s nuisance law, RSA 147:1, states “health officers in towns may make regulations for the prevention and removal of nuisances.” A nuisance is defined as “a condition, activity or situation (such as a loud noise or foul odor) that interferes with the use or enjoyment of property; esp., a nontransitory condition or persistent activity that either injures the physical condition of adjacent land or interferes with the use or with the enjoyment of easements on the land or of public highways.”

When an activity unreasonably interferes “with a right common to the general public,” it is considered a public nuisance and falls under the authority of the local health officer. A public nuisance is a “behavior that unreasonably interferes with the health, safety, peace, comfort or convenience of the general community.” There is a potential legal challenge to drafting private well water testing requirements pursuant to RSA 147:1. The issue is a lack of a public harm. It may be difficult to argue that a well on an isolated private property could reasonably interfere with the health of the general community.

However, the additional language in RSA 147:1 that states “and such other regulations relating to the public health as in their judgment the health and safety of the people require…” may broaden the scope of authority granted by this provision. But again, it looks at regulations related to public health and water conditions on an isolated property may not be seen by a court as an issue of public health.

The other possibility – to base the well water ordinance on local authority granted by the state’s building code – seems the stronger option.

Specifically, New Hampshire’s building code could be used by local governments to require private well water testing in order to obtain an occupancy permit. RSA 155-A:2 (IV) states that “the issuance off permits and certificates of occupancy pursuant to the state building code is expressly reserved for counties, towns, cities, and village districts.” RSA 155-A:2 (V) states that “[c]ounties, towns, cities and village districts may adopt by ordinance pursuant to RSA 674:51 or RSA 47:22 any additional regulations provided that such regulations are not less stringent than the requirements of the state building code and the state fire code.” This indicates that the New Hampshire building code serves as a baseline of regulation and that locals can create more protective standards. Private well water testing would be a more protective measure because it is not currently required by the state.

In addition, the New Hampshire building code incorporates the International Plumbing Code (IPC) 2009 by reference. The IPC has several relevant provisions that provide local authorities with the power to require well water testing.

First, section 202 of the IPC defines potable water as “water free from impurities present in amounts sufficient to cause disease or harmful physiological effects and conforming to the bacteriological and chemical quality requirements of the Public Health Service Drinking Water Standards or the regulations of the public health authority having jurisdiction.” This language indicates that local jurisdictions have the authority to further define the term “potable.”

Second, section 602.1 of the IPC requires that “[o]nly potable water shall be supplied to plumbing fixtures that provide water for drinking, bathing, or culinary purposes . . . .” These requirements are not just for public water systems because section 602.3 of the IPC states that “[w]here potable public water supply is not available, individual sources of potable water supply shall be utilized.”

It is clear based on section 602.3.1 that wells are considered as potential individual potable water supplies. Section 602.3.3 of the IPC states that “the water from an individual water supply shall be approved as potable by the authority having jurisdiction prior to connection to the plumbing system.” These sections further support the use of local authority to test wells to ensure that the water is potable.

The language in the IPC, taken in conjunction with the authority delegated to local authorities under RSA 155-A:2, provides the stronger potential legal basis for a local private well water testing requirement.

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