Under ORS 448.271, well testing is required “[i]n any transaction for the sale or exchange of real estate that includes a well that supplies ground water for domestic purposes.” The law kicks the authority to require tests over to the Oregon Health Authority and mandates that sellers submit the results of tests to OHA and the Buyer within 90 days of receiving the test results [failure to provide the test results to OHA will not invalidate the sale, but will get you in trouble with OHA]. OAR 333-061-0325 creates additional requirements and restrictions by rule. Possibly the most important element of this rule: “the lab tests required by ORS 448.271 cannot be waived, even if the buyer agrees not to have the well tested.” Sellers must test their wells for arsenic, nitrate and total coliform bacteria statewide, and in special areas designated as areas of public health concern, OHA can mandate additional testing. Generally these localized areas of concern will be noted on OHA’s website, alongside recommendations of other tests. For example, OHA currently advises property affected by wildfires consider testing for lead, and depending on damage assessment results, also Benzene, Toluene, Ethylbenzene, and Xylenes.
OHA rules note that “lab tests for arsenic, nitrate, and coliform bacteria are considered valid for one year if they are associated with the sale of the property,” which creates an ambiguity that has never been definitively clarified. If you begin a transaction with a Buyer, ORS 448.271 requires Seller to test that well. If the deal falls through and another Buyer arises within a calendar year, the law appears to strictly require a new set of well tests for the next buyer, but the enforcement body [OHA] appears to consider the previous tests “valid” and would likely accept them as sufficient proof of testing. Until OHA provides further clarity, it is an ambiguity.
Another significant facet to consider is what it means for a transaction for the sale/exchange of real estate to include a well. Generally this is understood as the property either contains a well upon it, or has a faucet or spigot on the land that draws from a well on a neighboring parcel [as that real estate transaction would “include a well” through the shared/neighboring well]. If the property does not contain or use a well [e.g. contract with neighbor that allows landowner to truck water in from neighboring well for storage, but the draw of the well water is completely off the parcel], no well testing requirement applies absent a very literal and broad interpretation of what it means for a transaction to “include a well”. If the property draws water in from the neighboring property’s well or if the property has a well somewhere in the back 40 – that transaction certainly includes a well.
The last of the primary turning points on the well testing requirement tends to be “what are domestic purposes?” OAR 333-061-0020(45) defines “domestic” as “provided for human consumption.” A separate rule promulgated by the Water Resources Department, OAR 690-300-0010(14) defines “Domestic Water Use” as “use of water for human consumption, household purposes, domestic animal consumption that is ancillary to residential use of the property or related accessory uses.” This leaves us in a somewhat curious spot of statutory conflict over the term. Water Resources Department is the agency charged with assuring water supplies are used properly [including groundwater wells], while OHA is charged with testing wells. ORS 448 largely grants authority to OHA, rather than WRD, so the reasonable interpretation at law would be to use the rule created by OHA, not the one from WRD. Therefore, if you have a well that supplies water for domestic animals or for watering non-commercial use of horses, but not for people, ORS 448 does not appear to apply a well testing requirement on that horse-water well. The safe bet would be to test the water for putrefactions though, largely to avoid lawsuits that could arise after the fact if a horse or family dog becomes ill or dies shortly after the sale from drinking tainted well water.