Responsibilities for controlling artesian flow under the Water Sustainability Act

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1 Feb 22, 2017 sent via Lynn Kriwoken Executive Director, Water Protection & Sustainability Branch BC Ministry of Environment PO Box 9362 Stn Prov Govt Victoria, BC V8W 9M2 Re: Responsibilities for controlling artesian flow under the Water Sustainability Act Dear Ms. Kriwoken, The British Columbia Ground Water Association was inaugurated 1970 as the British Columbia Water Well Drillers Association, and since then has evolved to include almost 300 members working in the groundwater industry, including well drillers, well pump installers, engineers and geoscientists, government officials, academics, and manufacturers and suppliers. We have a long history of working together with the Province on various initiatives of common interest, including formulating the Ground Water Protection Regulation when it was first introduced in 2004, hosting the Well Owner Workshop series in 2011, and establishing the Industry Training Authority certification program for well drillers and pump installers in We applaud many aspects of the new Water Sustainability Act (WSA) and the supporting Groundwater Protection Regulation (GWPR), and hope to continue to play an active role in developing regulatory policy for the protection of groundwater resources. OBJECTIVES This letter is written to express the BCGWA s perspective on the responsibilities set out under the WSA with regard to flowing artesian wells. The letter reviews what these responsibilities are, highlights specific aspects that raise concern amongst our members, and invites further engagement with the Province on how to address these concerns. 1

2 REGULATORY CONTEXT Section 48 (1) of the WSA defines a person responsible with respect to constructing a well as: (a) If the activity is supervised by a professional, that professional (i.e. professional engineer or professional geoscientist registered or licensed under the Engineers and Geoscientists Act, or holder of a limited licence under the Engineers and Geoscientists Act), or (b) If (a) does not apply and the activity is supervised or performed by a well driller or well pump installer who is qualified to supervise that activity, that well driller or well pump installer, When flowing artesian conditions are encountered at a job site, Section 52 (1) of the WSA states that: If a well driller or a professional encounters artesian conditions while constructing a well or supervising the construction of a well, the well driller or professional must ensure, as soon as practicable, that (a) any artesian flow is stopped or brought under control, or (b) if the artesian well is likely to flow periodically, steps are taken to ensure that that artesian flow will be stopped or controlled during those periods. As per Section 52 (1) of the WSA, the flow from a flowing artesian well is under control when (a) the artesian flow: (i) is clear of sediment, (ii) is entirely conveyed through the well's production casing to the wellhead, if the well has a production casing, (iii) may be mechanically stopped for an indefinite period in a manner that prevents leakage onto the surface of the ground or into another aquifer penetrated by the well, and (iv) does not pose a threat to property, public safety or the environment, Or (b) if it cannot be controlled in accordance with the above, the well is decommissioned (i) in accordance with the regulations, 2

3 (ii) by a [well driller who is qualified to do so, or under the direct supervision of another driller who is qualified to do so or a professional with competency in the field of hydrogeology or geotechnical engineering], and (iii) in a manner that allows no artesian flow at the surface of the ground or leakage into another aquifer penetrated by the well. Section 52 (6) provides some opportunity for alternatives in managing flowing artesian wells, namely: If the comptroller or a water manager is satisfied, based on the report of a professional, that because of exceptional circumstances it is not practicable to bring artesian flow under control in accordance with subsection (1) (a) or (b) but the artesian flow can be managed in another manner without posing a threat to property, public safety or the environment, the artesian flow may be brought under control in accordance with the directions of the decision maker. OUR POSITION We recognize that well drilling is a restricted activity in BC that requires the responsible party to carry certain qualifications, and to perform the work in compliance with minimum standards specified in the GWPR. Only a water well driller, geoexchange driller, and geotechnical or environmental driller whose name is listed on the BC Register of Well Drillers is qualified to construct wells in the province of British Columbia. We acknowledge that flowing artesian wells left in an uncontrolled condition have the potential to pose a long term liability to property, public safety, and/or the environment. Flowing artesian wells can cause flooding, land subsidence, sediment deposition, and erosion, as well as the depletion, degradation, and/or destruction of surface and groundwater resources. We concur that uncontrolled flowing wells should be brought under control at the time of well construction. However, the most practicable and cost effective time to achieve control is at the design stage, before drilling begins. The likelihood of success in controlling the flow in unanticipated circumstances, particularly to the standards set out in the WSA (i.e. no entrained sediment, no leakage) is much reduced after the well has been constructed. OUR CONCERN We are concerned about the regulatory obligation placed on well drillers, qualified professionals, and well pump installers to control or stop artesian flow at the time of well construction irrespective of the situation at hand. That is, irrespective of when the artesian conditions were identified, the pressures encountered, the costs to control the flow, or the responsible party s financial capacity to recover those costs. A high pressure flowing artesian 3

4 well can be much more costly to control than a low pressure flowing artesian well, thereby potentially placing our members at serious financial risk. According to Section 48 of the WSA, an individual well driller, qualified professional, or pump installer can be held personally responsible for controlling artesian flow. We are concerned that placement of this responsibility on the individual, rather than the company they work for, also enhances our members financial vulnerability. Our ability to mitigate this risk effectively as an industry is encumbered by three major gaps between what is expected and what is achievable or current practice. These include gaps in perception (amongst industry practitioners and regulators), gaps in practice (how wells are constructed and how they should be constructed in artesian areas), and gaps in financial capacity (who is required to pay for well control scenarios and what they can afford). These gaps are discussed in more detail in the following sections. For simplicity, an artesian well control scenario will henceforth refer an unanticipated flowing artesian well that requires some additional course of action (e.g. control, decommissioning, or managed diversion) after some or all of the major well components are installed (i.e. casing, screen, surface seal). Also, the well driller or the professional overseeing the work of the well driller at the time of well construction will be referred to henceforth as the responsible party. THE PERCEPTION GAP In this section, we present various statements in bold that illustrate the disparity between what some policy makers and professionals may envision, and what constitutes an industry reality. It is very difficult to anticipate the existence or intensity of flowing artesian conditions at any given location. Flowing artesian conditions are not always foreseeable, due to the inherent uncertainty in working with a buried natural resource. To suggest that they are implies that one should be able to pre-determine the level to which the water will rise in a well within a few metres accuracy. The geological complexity of British Columbia s mountainous backbone and the heterogeneous sequences of glacial sediments that overlie it creates flowing artesian conditions in numerous and unexpected places. Existing well records, whether sparse or dense in an area, are not perfect tools for predicting flowing artesian conditions at any given depth or location. Currently, there are only two well drilling advisories for flowing artesian conditions across entire province: one in the Lower Mission Creek area in Kelowna, and the other in Chetwynd. Most of the notorious flowing artesian wells in BC were drilled in areas lacking anecdotal or documented information on flowing artesian conditions. Even where flowing artesian wells are 4

5 reported, it is very difficult to ascertain what pressure to expect, due to the inherent risks in measuring and reporting high shut-in pressures. There is no guarantee that any measures taken to control a flowing well will be 100% effective, indefinitely. Artesian well control scenarios are often technically challenging, and may not be successful upon the first attempt. The Coldstream well closure near Vernon is a notable example. Multiple attempts to close this well were made over 50-year period, and the successful closure of the well in the summer of 2015 cost at least $3.9 million. Successful closure is rendered more difficult when targeted endpoints are set so high that they are very difficult to achieve or measure. These include the requirement that there be no leakage around the well casing, or no sediment in the well discharge. Furthermore, in some areas there is not enough aquifer monitoring data to support that these are necessary in order to meet the fundamental objectives of protecting the sustainability of the groundwater resource. It is very unlikely that a responsible party having experience in controlling or decommissioning flowing artesian wells would ensure or guarantee that the approach taken would indefinitely stop or control the flow. Rather, they would more likely place a probability of success on various options. THE PRACTICE GAP There is no minimum standard for designing wells in flowing artesian conditions in BC. For most well construction projects, the responsible party defaults to the minimum standards for well construction set out in the GWPR: a minimum 2.54 cm (1-inch) annular surface seal around the well production casing to a depth of at least 5m. This minimum surface seal requirement is intended to stop the downward migration of surfacesourced contaminants into an aquifer along the outside of the well casing. It is not intended to stop the upward movement of water from an artesian aquifer into overlying aquifers or onto the ground surface. In fact, the GWPR surface seal design, if installed using a bentonite grout (30% solids) with density of 10.4 lbs/usgal, could theoretically counterbalance a downhole hydrostatic head of up to 6.2m (equivalent to an at-grade hydrostatic head of 1.2m). At any greater hydrostatic head, the surface seal could fail and flow could appear outside of the casing. We know from experience that at-grade hydrostatic heads can greatly exceed 1.2m, reaching even 10 or 20m. However, many drillers and QPs default to constructing well seals using bentonite, mistakenly assuming that this offers a reasonable degree of protection if the well is flowing artesian. In practice, any at-grade hydrostatic head exceeding 1.4m and any artesian flow exceeding 1.3 L/s can be very costly to control or decommission. 5

6 Emplacing a 5.1cm (2-inch) annular surface seal to a depth of 5m using a neat cement slurry with density of 15.0 lbs/usgal could substantially improve the likelihood of maintaining control of a flowing artesian well. In theory, such a surface seal could withstand a downhole hydrostatic head of 9.0m, or an at-grade hydrostatic head of 4.0m. Furthermore, allowing a 5.1cm (2-inch) annular space facilitates the utilization of a tremie line to place the sealant. Much could be gained by creating a simple standard for well construction in artesian areas. THE FINANCIAL GAP The cost of an artesian well control scenario can range from less than one thousand to hundreds of thousands (or even millions) of dollars. In a recent survey distributed by the BCGWA, drilling contractor members were asked, in their experience, what was highest cost to control artesian flow. To this, 60 percent answered less than $10,000, 25 percent answered between $10,000 and $50,000, and 15 percent answered over $100,000. Therefore, the incidence rate of costly ($>100,000) well control scenarios is significant. In the past five years, there have been three well documented artesian well closure scenarios in BC that have cost in excess of $250,000 (the Coldstream well in Vernon, the Collins well in Chetwynd, and the Beechwood well in Vancouver). There are likely several more known to members which have not been disclosed. When escalating degrees of government intervention are undertaken (advisory, warning, order) the costs to control or manage the artesian flow also increase. In these situations, the responsible party must retain the services of another well driller, qualified professional, and/or legal counsel to formulate, obtain approval of, and/or oversee a particular course of action. When an alternative method of controlling the flow is proposed (e.g. a managed diversion into a nearby creek) a decision on whether or not to accept this measure can be very difficult to come by if the regulatory team lack the technical experience to evaluate the options presented, and thereby also drive up costs. The Beechwood artesian well control scenario in Vancouver required over a year of on-site investigation and negotiations between responsible parties and government agents in order to reach a consensus on the work plan and measures for success. The likelihood that a responsible party will recover his costs for an artesian well control scenario is low. Sixty-two percent of the drillers who responded to the BCGWA survey indicated that most of their clients are private landowners in rural areas (i.e. domestic well owners). Like most homeowners, the $10,000 to $30,000 required to construct a typical new well constitutes a substantial investment. If a costly artesian well control scenario were to arise, most well owners would not have the means to pay. 6

7 The BCGWA have contacted several insurance companies to determine whether such costs would be reimbursed by a Commercial General Liability policy (for driller) or a Professional Liability policy (for qualified professional). In general, coverage is triggered only when a third party (e.g. the well owner) takes civil action against the insured (i.e. well driller or qualified professional) for compensatory damages suffered as a result of negligence or faulty workmanship in the work performed or services rendered. Such compensatory damages include property damage, bodily injury or financial loss suffered on the part of the third party. In the absence of any civil action against the insured, or proof of negligence or faulty workmanship on the part of the insured, additional expenses incurred by the responsible party in order to meet their statutory obligation to bring a well under control would likely not be reimbursed by their insurance provider. Such expenses would be considered a result of poor project planning or the cost of doing business. Similarly, an Order placed under the WSA dictates who must carry out the work and assume all associated costs. To the insurer, the cost of complying with an Order would likely not be considered compensatory damages, and would also not be reimbursed. If there is a pre-existing contractual agreement between the responsible party and the well owner that states that the owner would assume these costs, his/her ability to do so may be quickly exhausted and he may be forced to default on the contract. In this case, the responsible party would still not recover his costs, as damages due to breach of contract are not covered in third party liability insurance policies. Under common law, the courts would most likely rule in favour of the well owner, since the responsible party is deemed an expert and is expected to have constructed the well in compliance with some minimum industry standard. In all cases mentioned above, the financial responsibility for controlling the flow at the time of well construction would likely fall on the well driller or professional overseeing the work of the well driller, regardless of the protective measures taken via insurance or contract. Placing responsibility on the individual, and not the company they work for, may cause significant financial harm. It may also be counterproductive to the objectives of the WSA. To our knowledge, there are very few trades or professionals who are held personally responsible for correcting situations that arise on the job, such as a ruptured water line, transformer meltdown, or engine failure. Even when the cause is deemed to be poor workmanship or professional negligence, costs to remedy such situations are typically dealt with at a corporate level to protect the personal assets of the individual(s) involved. Only providers of personal services, such as doctors, attorneys, accountants and financial professionals are prohibited from operating as a corporate entity in order to shield themselves from personal liability. In the context of well drilling, it is rarely the individual driller or qualified professional at the well construction site who negotiates the job, signs the contract with the client, or carries the commercial general liability or professional liability insurance coverage. Rather, it is the 7

8 company that they are employed or directed by. However, the wording of the WSA may expose employees to personal financial risk should their employer decide to limit the amount they are willing to pay for a costly artesian well control scenario. Fear of financial ruin can be a serious disincentive to taking on jobs in potentially artesian areas, doing the right thing when artesian conditions arise, or even to entering the well drilling industry in the first place. The current wording of the WSA may lead to a more litigious work environment for our members, and potentially drive the reporting and handling of flowing artesian wells underground. Such can be the unintended consequence of placing a responsible party in the position of deciding between protecting the environment or his own financial security. OUR COMMITMENT We as an Association are committed to helping our members continue to protect groundwater resources in BC, while at the same time maintaining viable businesses and minimizing their exposure to liabilities associated with flowing artesian wells. We will continue to advise that they: 1) Conduct and document pre-drilling assessments at all drilling sites. This may involve using the Province s groundwater mapping tools (e.g. BC Water Resources Atlas and/or imapbc), and contacting local drillers, landowners, and hydrogeologists who are familiar with hydrogeological conditions in that area. 2) Fully explain to their clients the financial risks associated with flowing artesian wells, and where there is potential for flowing artesian conditions to exist, recommend a more robust well design, such as a thicker, heavier, or longer surface seal. Emphasis will be made that a well over design is less costly to control artesian flow than a well under design. 3) Include contingency planning for unexpected artesian conditions. These could include a strategy for safely diverting flow away from the wellhead, having extra materials and equipment available to control the flow, and maintaining a contact list of experienced individuals who could be called on for advice. 4) Transfer all personal and financial liability for controlling the flow onto the well owner by means of a contract. Naturally, this would be done before the well is drilled, and after the potential costs of an artesian well control scenario are discussed with the owner. However, it will only be effective as the owner is willing and able to assume these costs. 8

9 OUR REQUEST There exists considerable gaps in perception, practice, and financial capacity which make it very difficult for our members to fulfil their statutory responsibilities under the WSA in all flowing artesian well scenarios. We are asking the Province to work with the Association on how to proactively and pragmatically narrow these gaps. The Association has formed a Flowing Artesian Well Working Group (FAWWG) and we ask that two representatives from the Ministry of Forests, Lands, and Natural Resource Operations, and/or the Ministry of Environment participate in this group. Until measures to address these gaps can debated, we ask that flowing artesian well closure scenarios be handled in a sensitive manner at a policy enforcement level. We believe that costly artesian well control scenarios require collaborative action on the part of responsible parties and government decision makers, as is the case for other unforeseen natural events that threaten public health, safety, or the environment (e.g. forest fires, bridge washouts, earthquakes). Such a responsibility should not be placed solely on the unlucky individual who designed or constructed the flowing artesian well. We thank you for this opportunity to express our concerns and look forward to continuing to work together with the Province to protect our groundwater resources and the livelihoods of those who rely on them. Respectfully submitted, Kathy Tixier, PEng. GENERAL MANAGER BC Ground Water Association Blaine Matuga PRESIDENT BC Ground Water Association cc: Mike Wei, Head, Groundwater & Aquifer Science, BC Ministry of Environment 1334 Riverside Road, Abbotsford, BC, V2S 8J2 T: