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Title

10

:
Conservation and Development






Chapter

048

:
GROUNDWATER PROTECTION






Subchapter

004
:
GROUNDWATER CAUSE OF ACTION










 

§

1410. Groundwater; right of action

(a) Findings and

policy. The general assembly hereby finds and declares that:

(1) surface and

subsurface water are inherently interrelated in both quality and quantity;

(2) groundwater

hydrology is a science that allows groundwater quality and quantity to be

mapped and forecast;

(3) groundwater

is a mobile resource that is necessarily shared among all users;

(4) all persons

have a right to the beneficial use and enjoyment of groundwater free from

unreasonable interference by other persons; and

(5) it is the

policy of the state that the common-law doctrine of absolute ownership of

groundwater is hereby abolished.

(b) Definitions.

As used in this section:

(1)

"Groundwater" means water below the land surface.

(2) "Surface

water" means any water on the land surface.

(3)

"Person" means any individual, partnership, company, corporation,

association, unincorporated association, joint venture, trust, municipality,

the state of Vermont, or any agency, department or subdivision of the state,

federal agency, or any other legal or commercial entity.

(c) Cause of

action. Any person may maintain under this section an action for equitable

relief or an action in tort to recover damages, or both, for the unreasonable

harm caused by another person withdrawing, diverting or altering the character

or quality of groundwater.

(d) Scope of

liability. Notwithstanding the provisions of subsection (c) of this section, a

person who alters groundwater quality or character as a result of agricultural

or silvicultural activities, or other activities regulated by the secretary of

agriculture, food and markets, shall be liable only if that alteration was

either negligent, reckless or intentional.

(e) Factors in

determining reasonableness. Factors to be considered in determining the

unreasonableness of any harm referred to in subsection (c), above, shall

include, but need not be limited to, the following:

(1) the purpose

of the respective uses or activities affected;

(2) the

economic, social and environmental value of the respective uses, including

protection of public health;

(3) the nature

and extent of the harm caused, if any;

(4) the

practicality of avoiding the harm, if any;

(5) the

practicality of adjusting the quantity or quality of water used or affected and

the method of use by each party;

(6) the

maintenance or improvement of groundwater and surface water quality;

(7) the

protection of existing values of land, investments, enterprises and productive

uses;

(8) the burden

and fairness of requiring a person who causes harm to bear the loss; and

(9) the burden

and fairness of requiring a person to bear the loss, who causes harm in the

conduct of reasonable agricultural activities, utilizing good agricultural

practices conducted in conformity with federal, state and local laws and

regulations.

(f) Effect on

other remedies. Nothing in this section shall be construed to preclude or

supplant any other statutory or common-law remedies.

(g) Presumption

of compliance. For the purposes of this section, a person who obtains and

complies with a withdrawal permit issued pursuant to the requirements of

section 1418 of this title shall be presumed to be engaged in a reasonable use

of groundwater and not to cause unreasonable harm under subsection (b) of this

section. (Added 1985, No. 69, §§ 1, 2; amended 1989, No. 256 (Adj. Sess.), §

10(a), eff. Jan. 1, 1991; 2003, No. 42, § 2, eff. May 27, 2003; 2007, No. 199

(Adj. Sess.), § 3, eff. June 9, 2008.)