Experts tell Vermont committee adding ‘trespass’ to right-to-farm bill could trigger takings claims

A Vermont law professor warned a legislative committee on S.45 on Oct. 12 that adding trespass immunity to the state’s right-to-farm statute could amount to a government-authorized physical invasion of downstream land and lead to successful takings claims.

John Echeverria, a law professor testifying on his own behalf, told members the takings clause ‘‘draws an important distinction’’ between regulatory limits on property use and ‘‘physical invasions or physical occupations’’ that require compensation. He said, ‘‘it’s just common sense that you shouldn’t dump your water on your neighbor’s land.’’

Echeverria’s testimony focused on two legal doctrines. He described Vermont common-law drainage rules that generally allow water to flow naturally downslope but prohibit artificial increases or redirection that harm downstream neighbors. He contrasted those rules with constitutional takings law, saying the courts treat government-authorized physical occupations—temporary or intermittent—as a category that typically requires compensation.

Committee members and other legislators questioned how those principles would apply under the current draft of S.45. Representative Richard Nelson said the bill has evolved through the Legislature and that the House Judiciary Committee recommended removing an explicit trespass provision earlier this session. Nelson said the state’s current approach ‘‘puts us right in the middle of the pack of the 50 states’’ on agricultural protections.

Witnesses and lawmakers pressed on technical points raised in the draft. Echeverria flagged two provisions as especially concerning: a broad definition of ‘‘nuisance’’ that could allow trespass claims to be recharacterized as nuisance claims and barred by immunity, and a clause that limits suits for runoff or flooding except where the runoff was not caused by an extreme ‘‘25-year, 24-hour’’ rainfall event. He called that 25-year exception ‘‘confusing’’ and said liability under drainage law turns on whether flow was artificially increased, not the absolute size of a storm.

Members discussed tile drainage—subsurface tile systems installed to remove water from fields—as an example of an agricultural practice that can increase peak flows to downstream properties. Echeverria described tile drains as ‘‘an activity that artificially increases some of the water’’ and said technical solutions include flowage easements, on-site infiltration basins or private agreements to compensate downstream landowners.

Lawmakers also raised common-law concepts such as prescriptive rights and inverse condemnation. Echeverria explained that if the government or a law effectively authorizes continuous invasions of private land, affected owners might pursue inverse-condemnation claims to obtain just compensation instead of ordinary nuisance or trespass remedies.

The committee scheduled additional expert testimony later in the week on related agricultural practices and drainage. Echeverria noted the House Judiciary Committee had previously removed an explicit trespass provision from its version of S.45, but he warned that recent drafting choices ‘‘reintroduce trespass into the bill by the back door’’ and urged the Legislature to keep trespass and nuisance distinct.

If the final bill broadens immunity to cover trespass-by-water in practice, Echeverria said, many downstream landowners could be left with no practical remedy unless they have resources to litigate takings claims against the state.

Ending: The committee heard technical follow-up questions and signaled more testimony and drafting work to clarify whether S.45 will preserve nuisance immunity only or will also, explicitly or effectively, shield actions that courts could treat as trespass and potential takings. Further witnesses scheduled this week include a University of Vermont expert on agricultural drainage.