Laws muddy water well owners' rights

The water from that old bucket was so good, and getting it used to be so simple: If there was water under your land and you wanted to use it, you just dug a well. It was your land and your water, and who was going to deny your right to it?

Today, well owners in many communities across the United States are discovering that, if municipal water is available, they can be fined for insisting on drinking from their own wells. Even if permitted to have a well, they might have to pay a hookup fee to the local water department and even a minimum annual water charge.

Like a lot of other citizens who feel they are being unconstitutionally forced to conform, some water well owners are taking the issue to the courts.

The suits center on mandatory connection ordinances, an increasingly common means by which cities and towns force all residents to use, or at least pay for, public water whether they want it or not.

Local officials say they need the money from connection fees and the sale of water to pay for filtration plants and distribution systems to serve growing populations. Protection of public health is at stake, too, they add.

There still are a lot of Americans who quench their thirst with water from wells or springs -- as much as half the US population, according to some sources. Some say it tastes better and costs less. Others don't want to drink the chemicals used to purify municipal water. Many note that, according to the US Environmental Protection Agency, water from more than half the municipal systems in the country is below the agency's quality standards.

One recent court case involved John and Helen Ivan of Marlboro, N.J. Even though they had their own water well, the Ivans paid a required $236 water hookup fee to the Municipal Utilities Authority. But they refused to connect their home to the municipal water main or to pay the annual minimum water bill of $120.

A trial court judge ruled that the local authority could not compel them to pay a minimum service charge. The authority appealed to the New Jersey Superior Court and the Ivans won again.

H. D. Cherry of Bethany, Okla., had a similar experience. The Oklahoma Supreme Court held that since Mr. Cherry had a well he was a nonconsumer of city water and could not be made to pay a minimum water bill.

But neither the New Jersey nor the Oklahoma courts ruled on the legality of the ordinances requiring connection to municipal water systems, and in most states that issue is yet to be settled.

However, well owners can point to a Georgia case in which the state Supreme Court held that the City of Midway had no authority to enforce an ordinance that not only required connection and payment of a minimum water charge, but also prohibited any repairs to residential water pumps and wells.

But such victories have been few -- and outnumbered by defeats for well owners. Earlier this month 200 Virginia Beach, Va., property owners lost an appeal to the state Supreme Court.

Calling themselves the Committee to Save Our Wells, they sought to invalidate the mandatory connection ordinance on grounds it was unconstitutional. But the court held that the law was a valid exercise of the city's police power and that "the public health purpose" was enough to support that conclusion.

A spokesman for the committee -- which received financial help from water-softener firms -- said the group would try to take the case to the US Supreme Court.

Still pending before the Virginia Supreme Court is a challenge of the mandatory connection fee in the town of Chesapeake. The ordinance here is unique in that it provides for criminal penalties: Any person who takes water from a private well for domestic use, if city water is available, can be fined $ 1,000 and sentenced to a year in jail.