§ 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.)