RALEIGH – A bill that would prevent state and local governments from regulating private wells is still eligible for consideration in the General Assembly after just making the session’s crossover deadline in May.
The measure would amend existing regulations to prohibit government from tampering with “water use from a well located outside of its jurisdiction, a well not connected to its water system, or any other private well.” It passed the House, 100-14, on May 14 and has since been assigned to the Senate’s Committee on Rules and Operations.
Rep. David Lewis, R-Harnett, filed the bill in response to drought regulations approved last year that boost the governor’s executive authority and require local water systems to submit water conservation plans to the state government. Lawmakers hurried the regulations through the General Assembly because of the record-breaking drought conditions, which have since abated due to plentiful rainfall.
Under the law, the governor can declare a “water shortage emergency” in drought-ravaged areas of the state, allowing officials to divert water from local water systems with an excess supply of water to systems experiencing shortages.
Landowners are also impacted since the law allows municipalities to use private property to connect water lines to another source without first obtaining a right-of-way.
Property-rights activists took aim at a section of the original bill that would have let local governments regulate private wells. After weeks of wrangling, sponsors added a provision clarifying that nothing in the measure “shall be construed to expand or limit” regulation of private groundwater sources.
That didn’t go far enough for Lewis. “It neither allowed nor disallowed the regulation of private wells,” he said. “There was a lot of gray area in my mind and the minds of other people concerned about property rights.”
Lewis was particularly troubled last year when the Senate’s concurrent version of the drought bill removed a provision that would have protected private well owners. “I was told at the time that it was removed because it was superfluous,” he said.
The new bill would clarify “once and for all” that private wells are protected under the drought regulations, he said. “Everybody says the intent of the bill wasn’t to regulate wells anyway, so if that’s the intent, I don’t see harm in spelling it out in plain language,” he said.
The John Locke Foundation published a report in October arguing that the drought regulations “likely authorized” the government to meddle with private wells.
“The legislation could easily have prohibited regulation of water use from private wells if that is what legislators wanted to do,” wrote Daren Bakst, JLF legal and regulatory analyst. “There is a reason why the bill contains no clear prohibition — legislators want the possibility of regulation.”
Supporters of the expanded regulations used last year’s drought as justification for action. Since then, however, conditions have improved vastly across the state.
According to the latest data from the N.C. Drought Management Advisory Council, over half of North Carolina counties have escaped the drought. The others are “abnormally dry,” which is the least-severe classification.
David N. Bass is an associate editor of Carolina Journal.