Legal Perspectives for 2025

While the focus of legal issues during the past several years has been on “waters of the United States”, the main issue in 2025 is mandatory connection. The Trump Administration is likely to relax regulations of the Clean Water Act. Those changes may well be litigated, but for the water well industry 2025 will likely see more regulations at the local and state level.

Mandatory Hookup

Local governments, mainly municipalities, across the country have started to intensify regulations mandating connection. Whether the stated rationale centers on PFAS or other issues, the real motive is economic. Local governments desire a monopoly in the water supply business to maximize revenues and profits. A recent federal court decision ruled that mandatory connection was not a regulatory taking, even where the cost made development economically impossible.

Meanwhile, Florida and other states have begun to propose mandatory hookup at the state level. State groundwater associations have been very proactive in opposing these measures.

State associations are also proposing, sometimes successfully, anti-mandatory connection legislation. Given the lack of success in the courts, 2025 will see more state associations using the legislative system to protect groundwater rights and private water wells. Georgia was successful in passing an anti-mandatory connection bill. Water well contractors in South Carolina and other states are lobbying for legislative changes.

PFAS

PFAS is another issue that will increasingly impact the industry in 2025. In 2024, the United States Environmental Protection Agency (EPA) announced the final National Primary Drinking Water Regulation for PFAS. Although this standard does not directly apply to private water wells, customers are asking for protection and will continue to do so. Making the issue more precarious, the EPA designated two PFAS compounds as “hazardous substances” under the Comprehensive Response, Compensation, and Liability Act (CERCLA). This designation subjects disposal of filters and other media containing PFAS to stringent federal regulation.

Groundwater Authority

One issue that will carry over from 2024 is the allocation of authority over groundwater between the state and local governments. The 2023 Legal Perspective discussed the pending United States Supreme Court case in Texas v. New Mexico. In that case, the federal government objected to an agreement between the states to resolve a dispute over the Rio Grande Compact. The United States asserted that the federal government should control water allocation issues on the Rio Grande River Basin, continuing a trend where the federal government attempts to assert ownership over water resources.

Groundwater is the focus of the Texas v. New Mexico case, and the United States Supreme Court surprisingly decided that the federal government had to agree to any agreement between Texas and New Mexico. The United States now holds authority to control groundwater in those states, primarily because of a federal water project. Given that federal water projects exist across the country, a concern is that the federal government will continue to flex its muscles over groundwater allocation.

Similarly, the Colorado River Basin dispute continues. The states appear unable to reach agreement on which states should see cuts in water allocation given the increasing demands for water and decreasing supplies from the river. If the states cannot agree, the federal government will step in and mandate an allocation. The Trump Administration has been critical of California’s administration of its water resources and appears eager to step in and take control.

Surface Water/Groundwater Connection

Finally, courts and legislatures will likely continue to focus on the connection between surface water and groundwater. In August 2024, a court in Sonoma County, California enjoined Sonoma County’s water well regulations, adopted pursuant to the state’s Sustainable Groundwater Management Act. The court opined that the water well regulations failed to adequately safeguard surface water rights, fish, and other public resources.

Meanwhile, in Washington State, the state has initiated an adjudication of surface water and groundwater in the Nooksack Basin. An adjudication calls on the owners of all water rights to come to court to assert their rights so that the court can determine which water rights owners hold what rights. Most adjudications allocate surface water rights. The Nooksack adjudication is one of the first, if not the first, adjudications to not only include groundwater and surface water, but to require owners of domestic water wells to appear in court to protect their groundwater rights. The water well industry needs to be a major player in this adjudication.

The overarching theme for several years has been uncertainty. For 2025, the theme shifts to “protect and defend.” The arena will shift from courtrooms to local, state, and federal legislative bodies. The groundwater industry must continue and increase efforts to impact local, state, and federal legislatures. Instead of playing defense, state associations are increasingly playing offense. A proactive approach is essential to survive in today’s legal environment.