Decision Date: April 14, 2015

Panel: Maureen Baird, Q.C., Monica Danon-Schaffer, R.G. Holtby

Keywords: Water Act – ss. 77(1)(a), 88(1); order; domestic water well; artesian flow

A landowner hired John Vlchek, doing business as Cariboo Water Wells Ltd., to drill a domestic water well on her property located in Chetwynd, B.C. On August 30, 2012, Mr. Vlchek began drilling the well, and he encountered artesian conditions involving a high flow of pressurized groundwater. On that day and during several days that followed, Mr. Vlchek took steps to control the artesian flow, including casing the well and installing valves to control the flow. On September 11, 2012, after the valves had been closed for 14 hours, Mr. Vlchek visited the site and found no leakage. He then opened two valves to allow water to flow along property of the landowner and a neighbouring property towards a settling pond, as agreed by the landowner and the neighbouring property owner.

In early October 2012, Ministry staff inspected the site and observed turbidity in the water flowing from the valves, an indication that subsurface erosion was occurring. The Ministry staff also noted that the water flowing over the properties was not in a defined channel, and could pose a hazard to property or a nearby railway. In November and December 2012, Ministry staff again visited the site and noted potential safety concerns. However, those observations were not communicated to Mr. Vlchek or the landowners.

In early March 2013, a large sinkhole developed on the landowner’s property. The sink hole appeared to be caused by underground flow from the well. Also, the surface water flow from the well appeared to be causing other problems or potential problems for the properties, the railway, power poles, and a nearby stream.

On March 28, 2013, the Ministry’s Regional Water Manager (the “Regional Manager”) issued an interim order requiring Mr. Vlchek to retain a qualified professional to prepare and submit a site remediation plan for the Regional Manager’s approval, and to supervise carrying out measures to stabilize the area around the well and install a ditch or drainage course to drain the flow from the well to a stream. The order required the work to be completed by April 17, 2013.

On April 8, 2013, Mr. Vlchek appealed the interim order, and requested a stay of the order pending a decision from the Board on the merits of the appeal. On April 16, 2013, the Board denied the stay application (John Vlchek v. Regional Water Manager, Decision No. 2013-WAT-009(a)). Before the Board issued its decision, Mr. Vlchek complied with the interim order.

On August 30, 2013, the Regional Manager issued a second order to Mr. Vlchek, requiring him to permanently close the artesian well, and construct at least one relief well to reduce the groundwater pressure sufficiently to allow permanent closure of the well.

Mr. Vlchek appealed the second order, and requested a stay of that order pending the Board’s decision on the merits of the appeal. On October 13, 2013, the Board granted the stay application subject to certain conditions (Decision No. 2013-WAT-025(a)).

The Board conducted a joint hearing of the two appeals. Mr. Vlchek submitted that the second order was based on a misunderstanding of the facts and a misapplication of section 77(1)(a) of the Water Act. In particular, he argued that he had taken sufficient steps to ensure that the artesian flow was “stopped or brought under control” as required by section 77(1)(a) of the Water Act. He also argued that the second order was not necessary to protect the public, the environment, or groundwater resources.

First, the Board considered whether the appeal of the interim order was moot. The Board found that the two appeals engaged many of the same questions of fact and law, and therefore, the appeal of the interim order was not moot. The Board also found that no inefficiencies arose from hearing the appeals together.

Next, the Board considered whether the artesian flow was “stopped or brought under control” as required by section 77(1)(a) of the Water Act. The Board applied the principles of statutory interpretation to determine the meaning of “stopped or brought under control” in section 77(1)(a). The Board noted that the word “stopped” is followed by the word “or”, which indicates that a well driller is obligated to either stop the artesian flow, or bring it under control, but not both. After considering section 77(1)(a) in the context of the Water Act as a whole, the Board found that it does not impose long-term liability on a well driller for artesian flow; rather, a well driller must stop or bring under control the artesian flow while the driller is constructing, or supervising the construction of, the well. Under the Water Act, the landowner is responsible for the well once its construction is completed.

Based on the facts in this case, the Board found that Mr. Vlchek stopped the flow of the well for 14 hours during September 10 to 11, 2012, when the valves were turned off and the flow stayed within the well casings. The Panel further found that, even if the flow was not stopped permanently at that time, it was brought under control, because it could have been capped then and for several months thereafter, but the landowner and her neighbour chose to let the well water flow onto their land. The well was the landowner’s responsibility once Mr. Vlchek brought the flow under control. In these circumstances, the Board concluded that there was no basis for the Regional Manager to issue either of the orders.

The orders were reversed, and the appeals were allowed.