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The Vermont Statutes Online
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.)