What Do You Do When the Well Runs Dry?

 In Environmental Law

In the province of Ontario, dug or drilled wells that are no longer in use are required to be properly decommissioned.  Wells are regulated under the Wells Regulation, R.R.O. 1990, Regulation 903, under the Ontario Water Resources Act.  The Regulation applies not only to wells installed for the purpose of drinking water, but also to wells installed for the purpose of monitoring groundwater quality.

Section 21 of the Regulation sets out when a well must be abandoned and by who.

A well must be abandoned if:

  1. during construction, it is discontinued before completion of the well’s structural stage (abandonment by the person constructing the well);
  2. it is a new well that is dry (abandonment by the well purchaser, unless the owner of the land on which the well is situate agrees in writing to maintain it for future use);
  3. it is not being used or maintained for future use as a well (abandonment by the well owner);
  4. it produces water that is mineralized (abandonment by the well owner);
  5. it produces water that is not potable, unless directions by the local officer of health are followed (abandonment by the well owner);
  6. it contains natural gas or other gas, unless measures are taken to manage the gas to avoid any potential hazard (abandonment by the well owner);
  7. it permits any movement of natural gas, contaminants or other materials such that water quality is impaired, unless the movement can be prevented (abandonment by the well owner); and
  8. it is constructed in a manner that contravenes the Regulation and efforts to rectify the contravention by the well owner fail (abandonment by the well owner).

There are exceptions to some of these rules depending upon the circumstances, such as the use that is put to the well (for groundwater monitoring or for agricultural purposes) or if permission of the Director is obtained.  For example, a well that contains water that is mineralized or non-potable may not need to be abandoned if it is for agricultural purposes or if it is not going to be used as a source of water for human consumption.

It is important to note that the obligation to abandon a well does not only fall on the owner of the property.  Under the Regulation, a well owner is the owner of land on which a well is situate and includes a tenant or lessee and a well purchaser (which is a person who enters into a contract for the construction of a well).

The work to decommission a well is to be undertaken by the holder of a well contractor license unless: (a) the person who works on the well is the owner of the lands or a member of the owner’s household; (b) the person who works on the well works without remuneration on another person’s well; (c) the person working on the well holds a license for Well Drilling; or (d) the well is a test hole or dewatering well.

In all, there are nine sequential steps that must be taken to decommission a well, as set out in s. 21.1(1) of the Regulation.  These must be followed unless the well is being overdrilled or excavated in its entirety in the course of excavation for another purpose.

It is important to understand the requirements applicable to the specific circumstances of the subject well.  If a well is being plugged and sealed at the ground surface, there are requirements that address methodology, the substance to be utilized, the degree of porousness in the cement, and other technical issues.

Once the well is physically decommissioned, the person who abandons a well is required to deliver a well record to the owner of the land on which the well was decommissioned and to file that well record with the Director.  There are timing deadlines for the completion of both of these steps.  The well tag must also be removed and returned to the Director within 30 days.

It is essential to know the rules applicable to a well before undertaking any steps to remove one. Contravention of the Regulation is an offence under the Ontario Water Resources Act.

This blog post was written by Cheryl Gerhardt McLuckie, a member of the Environmental Law team.  Cheryl can be reached at 613-369-0365 or at cheryl.mcluckie@mannlawyers.com.

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