Forgotten Waters

• Author: Michele Okoh
• Position: Assistant Professor, Lewis & Clark Law School
• Pages: 723-760

Forgotten Waters

MICHELE OKOH*

Over 43 million Americans, approximately 15% of the population, rely

on private wells for drinking water. These Americans do not have access

to public water systems and are not protected by the Safe Drinking Water

Act. These individuals are instead left with a set of widely differing state

laws regulating their drinking water wells. Most of these states do not

have any standards related to drinking water quality. Well owners are

instead responsible for monitoring and maintaining the safety of their

water.

This problem is often characterized as a rural issue: hard to solve

because of the large distance to treated water infrastructure. This

assumption is wrong. Many homes are located in peri-urban commun-

ities, close to public water systems. These systems often have been

excluded from public water systems due to racial and ethnic discrimina-

tion and poverty. Using the example of communities surrounding

Mebane, North Carolina, this Article argues that approaches to address-

ing access to safe drinking water must account for this legacy of discrim-

ination and discusses why the Rural Electrification Act provides a

promising model to provide safe drinking water to well dependent

populations.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 724

I. CHOOSING TO FORGET . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 727

A. HEALTH IN WELL DEPENDENT COMMUNITIES . . . . . . . . . . . . . . . . . . . 728

* Assistant Professor, Lewis & Clark Law School. © 2023, Michele Okoh. The Environment Section

of the American Public Health Association has recognized the author as an outstanding emerging leader

working at the intersection of environmental justice, policy, and science and conferred the 2021

Rebecca A. Head Award upon her. The author is inspired by the advocacy of Omega Wilson, Brenda

Wilson, Ayo Wilson, and Omari Wilson and is grateful for the comments and feedback she received

from them. She further appreciates the support and guidance she received from her advisor, Dr. Michael

Long, from the George Washington University Milken Institute School of Public Health. The author is

especially grateful for comments and suggestions from James Salzman and Melissa Powers, both of

whom were instrumental to the development of this Article. Further, thanks go to Michelle Nowlin,

Marianne Engelman Lado, Lauren Godshall, Jayne Huckerby, H. Timothy Lovelace, Jr., and Crystal

Grant for their insightful comments on this research. The author is additionally grateful to the organizers

of the Elisabeth Haub School of Law at Pace University Future Environmental Law Professors

Workshop and Katy Kuh, Dave Owen, Jason Czarnezki, and Nick Robinson for providing the initial

foundation from which this Article grew. She is also thankful for the research assistance she received

from Zoe Gabrielson. Most of all, she is grateful for Lisa Benjamin’s and Catherine Smith’s relentless

mentorship and support in the development of this Article.

723

1. Structural Determinants of Health. . . . . . . . . . . . . . . . . . 731

2. Forgotten by Public Health . . . . . . . . . . . . . . . . . . . . . . . 734

B. POWER OVER COMMUNITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 735

1. Mischaracterizing the Problem . . . . . . . . . . . . . . . . . . . . 735

2. Legacy of Municipal Underbounding . . . . . . . . . . . . . . . 736

II. ATTEMPTING TO INCREASE ACCESS TO SAFE DRINKING WATER . . . . . . . . 739

A. POWER TO EXCLUDE COMMUNITIES . . . . . . . . . . . . . . . . . . . . . . . . . . 740

1. History of Drinking Water Regulation in the United

States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 741

2. Safe Drinking Water Act Overview. . . . . . . . . . . . . . . . . 742

3. SDWA Exclusion of Private Drinking Water Wells. . . . . 743

B. FEDERAL FUNDING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 744

C. STATE REGULATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749

1. The North Carolina Example. . . . . . . . . . . . . . . . . . . . . . 751

2. The Fight for Access by Unincorporated Communities in

Mebane, North Carolina . . . . . . . . . . . . . . . . . . . . . . . . . 752

III. MOVING TOWARD INCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 755

A. BRIEF HISTORY OF THE RURAL ELECTRIFICATION ACT . . . . . . . . . . . . 756

B. THE COOPERATIVE MODEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 757

C. REMEMBERING UNDERBOUND COMMUNITIES . . . . . . . . . . . . . . . . . . . 758

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 760

INTRODUCTION

Outside the city limits of Mebane, North Carolina, lies the community of

White Level. Predominantly Black, Indigenous, and Latinx,

1

See Our History, W. END REVITALIZATION ASS’N, https://weranc.org/our-history/ [https://perma.

cc/E6SX-4BZJ] (last visited Feb. 5, 2023).

this community was

founded by freed slaves and has a long, rich history.

2

See W. END REVITALIZATION ASS’N, https://weranc.org [https://perma.cc/YQM7-V9XZ] (last

visited Feb. 5, 2023); see also Our History, supra note 1 (elaborating on this rich history).

Across the street from

White Level sits the Mill Creek community, which is predominantly white and

wealthier.

3

The street marks a stark dividing line. Most of the White Level

1.

2.

3. See Our History, supra note 1.

724 THE GEORGETOWN LAW JOURNAL [Vol. 111:723

residents have no access to municipal water and sewer services. Conversely,

many residents of neighboring Mill Creek enjoy access to public water and sewer

services.

4

White Level is not the only unincorporated Mebane community without access

to public water. It is one of five predominantly Black, Indigenous, People of

Color (BIPOC) communities that the West End Revitalization Association helps

to gain access to basic public health amenities.

5

Many of these residents are left

without basic amenities, such as paved roads and safe drinking water.

6

See Danielle Purifoy, A Place Called Mebane, SCALAWAG MAG. (Aug. 8, 2016), https://

scalawagmagazine.org/2016/08/a-place-called-mebane/ [https://perma.cc/W4K9-73YC].

This

would not be the case if they were annexed by the City of Mebane. Given their

proximity to Mebane, annexation would be easy to achieve.

7

But Mebane has not

annexed these communities.

8

See Jonathan Weiler, Subtle Yet Potent Racism Exists in Deciding Who Lives Within the City

Limits, INDY WK. (May 25, 2011, 4:00 AM), https://indyweek.com/news/subtle-yet-potent-racism-

exists-deciding-lives-within-city-limits/ [https://perma.cc/Z5RU-Q3PC].

Such “peri-urban” communities, unincorporated communities adjacent to

municipalities, without access to public water systems, exist throughout the coun-

try.

9

They may be found along the U.S.–Mexico border in communities known as

“colonias.”

10

Similar unincorporated BIPOC communities are located in Texas

and as far west as California, where migrant communities in the Central Valley

face the same access issues.

11

These communities must rely on private drinking

water wells, which they themselves must maintain.

12

Water Contamination and Diseases, CTRS. FOR DISEASE CONTROL & PREVENTION (May 26,

2022), https://www.cdc.gov/healthywater/drinking/private/wells/diseases.html [https://perma.cc/9KUH-

T5EW].

With every glass they drink,

they risk exposing themselves to contaminated water.

Indeed, over 43 million Americans, or approximately 15% of the population,

do not have access to public water systems.

13

Water Resources Mission Area, Domestic (Private) Supply Wells, U.S. GEOLOGICAL SURV.,

https://www.usgs.gov/mission-areas/water-resources/science/domestic-private-supply-wells [https://perma.

cc/B5BN-SVYX] (last visited Feb. 5, 2023).

Many must rely on private drinking

water wells that are unregulated by the Safe Drinking Water Act (SDWA).

14

These individuals are instead subject to widely differing state laws regulating

their drinking water wells. Most of these states do not have any standards

4. Id.

5. W. END EVITALIZATION SS NR A ’ , supra note 2.

6.

7. See David M. Lawrence, Incorporation, Abolition, and Annexation, in COUNTY AND MUNICIPAL

GOVERNMENT IN NORTH CAROLINA 3 (2d ed. 2014).

8.

9. See Hannah Gordon Leker & Jacqueline MacDonald Gibson, Relationship Between Race and

Community Water and Sewer Service in North Carolina, USA, PLOS ONE, Mar. 21, 2018, at 1, 2. The

term “municipality” refers to any incorporated city, town, or other unit of local government with elected

officials. Id. at 5.

10. Id. at 3.

11. Id.

12.

13.

14. Id.

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