Checklist · Environmental

Testing Water, Permitting a Well or Septic System, and Pursuing a Contamination Claim: A Practical Checklist

42 U.S.C. § 300

Type
Checklist
Jurisdiction
National
Date
2026-01-14
Topic
Environmental

This checklist covers drinking water and onsite wastewater from four positions: owning a private well, operating a small public water system, buying or selling property served by either, and evaluating a contamination claim. It begins with the threshold determination that governs everything — whether the property is on a regulated public system or an unregulated private well, and on a sewer or a septic system. It gives well owners the annual and periodic testing protocol that substitutes for the regulator they do not have, and the construction, setback, and abandonment requirements that state law does impose. It gives small system operators the compliance baseline most of them discover only when an inspector arrives. It supplies the transaction contingencies and diligence items that prevent the outcomes this field is known for, including the raw-land soil evaluation contingency. It closes with a contamination claim sequence organized around causation, attribution, limitations, and the medical monitoring question.

Testing Water, Permitting a Well or Septic System, and Pursuing a Contamination Claim: A Practical Checklist

Environmental > Drinking Water, Private Wells, and Onsite Wastewater | Published 14 January 2026 - Updated 6 April 2026 | UpLaw - uplaw.us

Start here

⚠️ Answer two questions before anything else. Everything follows from them.

☐ Where does the water come from? ☐ A public water system — regulated, tested, reported ☐ A private well — essentially unregulated as to quality ☐ Where does the wastewater go? ☐ Sewer ☐ Onsite septic system

If unsure: a water bill from a utility means a public system. A well head, a pressure tank, and no water bill means a private well. A septic tank lid, a distribution box, or a permit on file at the county health department means onsite wastewater.

☐ Which sequence do you need? • Private well owner — Part 1 • Small system operator — Part 2 • Onsite wastewater owner — Part 3 • Buying or selling — Part 4 • Contamination claim — Part 5

Part 1 — Private well owner

⚠️ No federal drinking water standard applies to your well. You are your own utility. Nobody is testing, and nobody will tell you anything.

Testing:

☐ Annually — total coliform bacteria and nitrate. These are the two that matter most and cost the least. ☐ Every 3–5 years — the contaminants of local concern: arsenic, uranium, radon, fluoride, manganese, lead, or PFAS, depending on geology and nearby land use. Ask the county health department or state geological survey what is common in your area. ☐ After any event — flooding, nearby drilling or excavation, a neighbor's septic failure, a spill, or any change in taste, odor, or color ☐ Use a certified laboratory and follow its sampling instructions exactly. A mishandled sample produces a meaningless result. ☐ Keep every result. A dated series is the only baseline you will ever have, and it is decisive if a contamination claim later arises.

Construction and maintenance:

☐ Locate your well log and permit — filed with the State by the driller. Note depth, casing, and grouting. ☐ ⚠️ Verify setbacks from your septic system and every neighboring septic system, animal facilities, fuel and chemical storage, and property lines. This is the requirement most often violated in older development, and violations are usually discovered only after contamination. ☐ Inspect the wellhead — the cap should be sealed and vermin-proof, the casing should extend above grade, and the ground should slope away. ☐ ⚠️ Seal any abandoned well on the property. An unsealed abandoned well is a direct conduit to the aquifer and is a recurring contamination source. ☐ Prevent cross-connections between the well system and any other water source.

Shared wells:

☐ ⚠️ Get a recorded shared well agreement covering: ownership and easement, maintenance and replacement cost allocation, testing and treatment responsibility, usage limits, dispute resolution, and what happens on transfer. ☐ Determine whether the shared system is actually a public water system — fifteen connections or twenty-five people regularly served makes it one under 42 U.S.C. § 300f. ☐ Confirm water rights where the State requires a permit to withdraw; see the water rights checklist.

If a test comes back bad:

☐ Resample before acting — sampling error is common. ☐ For bacteria: shock chlorinate, correct the defect that allowed entry, and retest. ☐ For nitrate: ⚠️ do not give the water to infants, and identify the source before selecting treatment. ☐ Select treatment matched to the contaminant — not a general-purpose filter — and maintain it. ☐ Notify neighbors on the same aquifer where a shared source may be affected.

Part 2 — Small public water system operator

⚠️ The most common problem in this field is a system that does not know it is regulated.

☐ Determine status. Fifteen or more service connections, or regularly serving twenty-five or more individuals, makes the system a public water system under 42 U.S.C. § 300f. Mobile home parks, apartment complexes, schools, campgrounds, restaurants on private wells, churches, and small subdivisions all qualify if they cross it.

☐ Determine the category — community (year-round), non-transient non-community (same people six months or more), or transient non-community. Obligations differ substantially.

☐ Register with the primacy agency and obtain the monitoring schedule. State program requirements are at 40 C.F.R. Part 142; the substantive rules are at 40 C.F.R. Part 141, coverage at 42 U.S.C. § 300g, and standard-setting at 42 U.S.C. § 300g-1.

☐ Employ a certified operator at the required grade.

☐ Sample on schedule, at the required points, using certified laboratories and approved methods.

☐ Report results and violations to the agency within the specified periods.

☐ Notify the public on the correct tier: • ⚠️ Tier 1 — 24 hours for acute risks: acute contamination, waterborne outbreak, nitrate exceedance, treatment failure. This is the boil water notice. Use methods that reach people fast. • Tier 2 — 30 days, repeated quarterly, for other health-based violations • Tier 3 — 1 year, may be included in the annual report, for monitoring and reporting violations

☐ Publish the annual consumer confidence report if a community system — source, every contaminant detected, limits and goals, violations, and required educational language.

☐ Complete a source water assessment and, where required, a protection plan.

☐ Maintain records for the required retention periods.

☐ Check whether secondary standards apply under state law — 40 C.F.R. Part 143 is not federally enforceable but several States adopt them.

☐ Check underground injection obligations under 42 U.S.C. § 300h, 40 C.F.R. Part 144, and 40 C.F.R. Part 145 if the system also has a large-capacity onsite wastewater system.

☐ Budget for capital compliance. ⚠️ New standards — PFAS treatment in particular — can cost more than a small system's entire annual revenue. Evaluate state revolving fund financing and, realistically, consolidation with a neighboring system.

☐ Understand enforcement exposure under 42 U.S.C. § 300g-3 and the citizen suit provision at 42 U.S.C. § 300j-8.

If an association is taking over a well from a developer: determine regulatory status, compliance history, source vulnerability, treatment in place, operator arrangement, capital condition, and required reserves — before accepting the conveyance.

Part 3 — Onsite wastewater

Permitting a new system:

☐ Site evaluation — soil borings or profile pits, percolation test where required. ⚠️ Soil governs everything. If the soil fails, no design solves it cheaply. ☐ Design by a licensed designer or engineer, sized to bedroom count or projected flow ☐ ⚠️ Verify all setbacks — from your well, neighboring wells, property lines, surface water, wetlands, and structures ☐ ⚠️ Confirm a reserve area for a replacement drainfield exists and can be kept clear. This matters more than the primary field — drainfields fail eventually ☐ Obtain the construction permit and schedule inspection before backfill ☐ Obtain an operating permit for any advanced or mechanical system, with the maintenance contract it requires ☐ Record the as-built location of tank, field, and reserve area, and keep a diagram

Maintaining an existing system:

☐ Pump the tank on schedule — commonly every three to five years ☐ Keep vehicles, structures, paving, and deep-rooted vegetation off the drainfield and the reserve area ☐ Manage water use and repair leaks; hydraulic overload is a leading failure cause ☐ Keep grease, wipes, solvents, and additives out ☐ Know where everything is — tank, field, reserve

Signs of failure:

☐ Effluent surfacing · backups · slow drains · unusually green grass over the field · odors ☐ ⚠️ Bacteria or nitrate appearing in a nearby well — including a neighbor's

If the system fails:

☐ Understand it is a health code matter, abatable as a public nuisance, with orders, fines, and liens. See the code enforcement checklist. ☐ It blocks a sale in most jurisdictions until repaired or escrowed. ☐ It creates neighbor exposure — nuisance, trespass, negligence. ☐ ⚠️ If effluent reaches surface water, a discharge permit may be required. Analyze under County of Maui v. Hawaii Wildlife Fund — is this the functional equivalent of a direct discharge? The prohibition is 33 U.S.C. § 1311, the permit program 33 U.S.C. § 1342 and 40 C.F.R. Part 122, definitions 33 U.S.C. § 1362. ☐ Check state law separately. ⚠️ After Sackett v. Environmental Protection Agency federal jurisdiction contracted, and state law reaches further in many States.

Part 4 — Buying or selling

Buyer diligence

☐ Determine the water source and wastewater system before making an offer.

☐ Water test by an independent sampler at a certified laboratory — bacteria and nitrate at minimum, plus local contaminants of concern. ⚠️ A seller-supplied result from an unnamed lab is worth very little.

☐ Septic inspection including tank condition, baffles, sludge and scum measurement, and ⚠️ a hydraulic load test of the drainfield. A visual look at the tank lid is not an inspection, and a field that accepts a normal day's flow can still fail under actual occupancy.

☐ Obtain from the county health department: the septic permit, the as-built drawing, inspection records, and any complaint history.

☐ Obtain from the State: the well log and well permit.

☐ ⚠️ Verify setbacks between the well and every septic system within the applicable distance — including neighbors'.

☐ ⚠️ Confirm the reserve drainfield area exists and is not built on, paved, or encumbered.

☐ Obtain the system's age and pumping history.

☐ For a shared well: obtain the recorded agreement, or ⚠️ treat its absence as a material problem.

☐ For a property on a small community system: obtain its regulatory status, violation history, and consumer confidence reports.

☐ For a property on a public system: read the most recent consumer confidence report. ⚠️ Understand that "in compliance" means the enforceable limit was met under 42 U.S.C. § 300g-1 — not that the health goal was.

☐ ⚠️ FOR RAW LAND: make the contract contingent on a satisfactory soil evaluation AND an issued septic permit. This is the single most important contingency in unsewered land purchase. A buyer who waives it can own a lot with no lawful way to dispose of wastewater — which is a lot that can never have a house on it.

☐ Check financing requirements. Government-backed loan programs impose their own separation distances, testing, and system condition standards, and a property that fails them is unfinanceable for a large share of buyers regardless of state law.

Seller obligations

☐ Disclose the water source, the wastewater system, and known problems with either, on the state form. ☐ ⚠️ "Known" includes what you actually know. Repeated pumping, a bad test result, a surfacing event, or a repair are all known problems, and non-disclosure is where the litigation is. ☐ Complete any transfer inspection the jurisdiction requires. ☐ Provide permits, logs, and as-built drawings you hold.

Part 5 — Contamination claims

Threshold sequence

☐ 1. Establish the exposure. Testing results, dates, concentrations, and a chain of custody. ⚠️ Sample properly and through counsel where litigation is contemplated — the sampling protocol will be attacked.

☐ 2. Identify candidate sources. Upgradient facilities, historic land uses, agricultural operations, failing septic systems, landfills, fuel storage, and firefighting foam use sites.

☐ 3. Gather the agency file before discovery. Discharge permits and monitoring reports, site assessment and remediation files, health department complaints, well logs, septic permits, and consumer confidence reports. Cheaper and more informative than early discovery, and it establishes what was known and when. See the public records guide.

☐ 4. Retain a hydrogeologist early. Plume direction, transit time, and attribution are the case.

☐ 5. Calendar limitations. ⚠️ Accrual under the discovery rule is contested in nearly every contamination case. Identify the earliest date the claimant knew or should have known.

☐ 6. ⚠️ Determine whether your State recognizes MEDICAL MONITORING without present physical injury. Standalone claim, present-injury requirement, or remedy only when attached to another tort — States divide sharply, and in exposure cases without present illness this determines whether a case exists.

Selecting claims

Federal — cleanup and injunctive relief, not damages:

☐ 42 U.S.C. § 9607 — response cost recovery and contribution, with definitions at 42 U.S.C. § 9601 and the response framework at 40 C.F.R. Part 300. Strict, retroactive, joint and several — but apportionment is available on a reasonable basis, Burlington Northern & Santa Fe Railway Co. v. United States. ☐ 42 U.S.C. § 6972 — imminent and substantial endangerment from solid or hazardous waste, with definitions at 42 U.S.C. § 6903 and reach illustrated by City of Chicago v. Environmental Defense Fund. 90-day notice. ☐ 33 U.S.C. § 1365 — Clean Water Act citizen suit. ⚠️ Ongoing violations only — Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.. 60-day notice. ☐ 42 U.S.C. § 300j-8 — against a public water system in violation. 60-day notice.

⚠️ Do not plead an implied federal damages claim. City of Milwaukee v. Illinois displaced federal common law nuisance and Middlesex County Sewerage Authority v. National Sea Clammers Association precluded implied private damages actions. Damages come from state law. See also Environmental Defense v. Duke Energy Corp. on cross-program term interpretation.

State — damages:

☐ Nuisance ☐ Negligence ☐ Trespass ☐ Strict liability for abnormally dangerous activity ☐ Products liability against the manufacturer ☐ State environmental statutes with fee-shifting

Proving it

☐ General causation — can this substance cause this condition at this dose? ☐ Specific causation — did it cause this claimant's condition? ☐ ⚠️ Both require experts who survive admissibility challenge; exclusion ends the case. See the expert witness checklist. ☐ Attribution — isotopic analysis, fingerprinting, plume modeling ☐ Consider leading with property damage — diminution in value, connection costs, treatment systems, loss of use. ⚠️ Easier to prove, easier to certify for class treatment; see the class action guide.

The short version

☐ Find out which regime applies — public system or private well; sewer or septic. ☐ On a well: test bacteria and nitrate annually. Nobody else will. ☐ Verify setbacks between wells and every septic system, including neighbors'. ☐ Seal abandoned wells. ☐ Get a recorded shared well agreement, always. ☐ Fifteen connections or twenty-five people makes a system federally regulated — check before an inspector does. ☐ On septic: pump on schedule, protect the field and the reserve, know where they are. ☐ Buying: independent water test, real septic inspection with a load test, permits from the health department, setback verification, reserve area confirmed. ☐ ⚠️ Raw land: soil evaluation and issued septic permit as contract contingencies. ☐ Claims: federal statutes for cleanup, state law for damages; causation is the case; check medical monitoring first.

⚠️ Three transaction contingencies prevent most of what goes wrong in this entire field — an independent water test, a septic inspection with a hydraulic load test, and on raw land a soil evaluation with an issued permit. They cost a few hundred to a few thousand dollars and are waived constantly.

Appendix — Six failures, and the step that catches each

The association that was a utility. Twenty-two homes on a shared well, never sampled, discovered by an inspector — with compliance costs exceeding a year of assessments. Caught by: Part 2's first item, run before the association accepts the well from the developer.

The well nobody tested. A family drinks nitrate at twice the limit for six years because no one was obligated to look. Caught by: Part 1's annual bacteria and nitrate test. ⚠️ There is no regulator here — testing is the entire detection system.

The setback violation nobody checked. A well drilled forty feet from a neighbor's drainfield, discovered when coliform appears. Caught by: Part 1's and Part 4's setback verification, which requires looking at neighboring septic permits, not just the property's own.

The tank-lid "inspection." A buyer accepts a visual look, occupies the house with four people instead of two, and the field fails in month three. Caught by: Part 4's hydraulic load test requirement. A field that passes a visual can fail under actual flow.

The lot that cannot perc. Raw land purchased without a soil contingency, and no lawful way to dispose of wastewater. Caught by: Part 4's raw-land contingency. ⚠️ This is the single most consequential waiver in unsewered land purchase.

The claim filed without checking medical monitoring. Substantial exposure, no present illness, and a State that requires physical injury. Caught by: Part 5's threshold item six, run before the case is worked up.

Five of the six are prevented by a test, a permit file, or a contract clause — none of which requires litigation. Related materials: the article explains why the two regimes diverge so sharply, the comprehensive guide develops standard-setting, notification, permitting, and claims, and the toolkit supplies the testing protocol, the health department records request, the transaction contingency language, and the shared well agreement terms.

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