BILL REQ. #:  H-0452.1 

Read first time 01/24/2003.   Referred to Committee on Agriculture & Natural Resources.

     AN ACT Relating to compensating property owners for damages caused by conditions in hydraulic project approvals; amending RCW 64.40.010 and 64.40.020; adding a new section to chapter 64.40 RCW; adding a new section to chapter 77.55 RCW; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 64.40.010 and 1982 c 232 s 1 are each amended to read as follows:
     As used in this chapter, the terms in this section shall have the meanings indicated unless the context clearly requires otherwise.
     (1) "Agency" means the state of Washington, any of its political subdivisions, including any city, town, or county, and any other public body exercising regulatory authority or control over the use of real property in the state.
     (2) "Permit" means any governmental approval required by law before an owner of a property interest may improve, sell, transfer, or otherwise put real property to use.
     (3) "Property interest" means any interest or right in real property in the state.
     (4) "Damages" means reasonable expenses and losses, other than speculative losses or profits, incurred between the time a cause of action arises and the time a holder of an interest in real property is granted relief as provided in RCW 64.40.020. Damages must be caused by an act, necessarily incurred, and actually suffered, realized, or expended, but are not based upon diminution in value of or damage to real property, or litigation expenses.
     (5) "Regulation" means any ordinance, resolution, or other rule or regulation adopted pursuant to the authority provided by state law, which imposes or alters restrictions, limitations, or conditions on the use of real property.
     (6) "Act" means a final decision by an agency which places requirements, limitations, or conditions upon the use of real property in excess of those allowed by applicable regulations in effect on the date an application for a permit is filed. "Act" also means the failure of an agency to act within time limits established by law in response to a property owner's application for a permit((: PROVIDED, That)). There is no "act" within the meaning of this section when the owner of a property interest agrees in writing to extensions of time, or to the conditions or limitations imposed upon an application for a permit. "Act" shall not include lawful decisions of an agency which are designed to prevent a condition which would constitute a threat to the health, safety, welfare, or morals of residents in the area.
     ((In any action brought pursuant to this chapter, a defense is available to a political subdivision of this state that its act was mandated by a change in statute or state rule or regulation and that such a change became effective subsequent to the filing of an application for a permit.))

Sec. 2   RCW 64.40.020 and 1982 c 232 s 2 are each amended to read as follows:
     (1) Owners of a property interest who have filed an application for a permit have an action for damages to obtain relief from acts of an agency which are arbitrary, capricious, unlawful, or exceed lawful authority, or relief from a failure to act within time limits established by law((: PROVIDED, That)). The action is unlawful or in excess of lawful authority only if the final decision of the agency was made with knowledge of its unlawfulness or that it was in excess of lawful authority, or it should reasonably have been known to have been unlawful or in excess of lawful authority.
     (2) The prevailing party in an action brought pursuant to this chapter may be entitled to reasonable costs and attorney's fees.
     (3) No cause of action is created for relief from unintentional procedural or ministerial errors of an agency.
     (4) Invalidation of any regulation in effect prior to the date an application for a permit is filed with the agency shall not constitute a cause of action under this chapter.
     (5) In any action brought pursuant to this section, a defense is available to a political subdivision of this state that its act was mandated by a change in statute or state rule or regulation and that such a change became effective subsequent to the filing of an application for a permit.

NEW SECTION.  Sec. 3   A new section is added to chapter 64.40 RCW to read as follows:
     (1) In addition to the action authorized by RCW 64.40.020, an owner of a property interest in public or private property has an action for harm resulting from a condition imposed by the department of fish and wildlife in an approval issued according to chapter 77.55 RCW for a hydraulic project or other work if implementation of the condition:
     (a) Is a requirement of the approval issued by the department under chapter 77.55 RCW for a hydraulic project or other work on the owner's property or on property affected by operation of the tide gate;
     (b) Results in a change in the operating characteristics of a tide gate; and
     (c) Harms the property interest of either the owner obtaining the approval or the owner of property affected by the operation of the tide gate.
     (2) Before filing an action under this section, an owner shall file a written complaint with the department and the owner of the tide gate if owned by another person. The department shall investigate the complaint and shall respond within thirty days of receipt of the complaint.
     (3) If the department finds that harm has occurred on the owner's property as a result of the change in the operating characteristics of the tide gate, the department shall make an offer of compensation to the owner. If the department finds that the change in the operating characteristics of the tide gate is likely to result in future harm to the owner's property, the department's offer of compensation shall include compensation of future losses or a provision to revise its approval to eliminate the change in the operating characteristics of the tide gate determined to be causing the harm.
     (4) If the department fails to respond within the time required by subsection (2) of this section or if the owner determines that the department's offer of compensation is insufficient, the owner may file an action in the superior court in the county in which the owner's property is located.
     (a) The owner may seek a writ of mandamus according to chapter 7.16 RCW regarding the department's failure to respond within the time required by subsection (2) of this section or the department's determination regarding the condition specified in subsection (1) of this section.
     (b) The owner also may seek damages resulting from the conditions specified in subsection (1) of this section, including:
     (i) Damages as defined in RCW 64.40.010(4);
     (ii) Current or future decrease in property value;
     (iii) Other current or future reasonable expenses and losses; and
     (iv) Reasonable attorney fees and costs.
     (5) For purposes of this section:
     (a) "Change in the operating characteristics of a tide gate" means any change in the operation of the tide gate that impacts the flow or bed of any salt or fresh waters of the state and includes, but is not limited to, increasing the elevation of the water surface behind the tide gate, reducing the reservoir capacity behind the tide gate, decreasing the ability to drain the area behind the tide gate, and increasing the intrusion of saltwater into the area above the tide gate.
     (b) "Department" means the department of fish and wildlife.
     (c) "Harm" means negative impact to property and includes, but is not limited to, flooding, increased soil saturation, or reduced drainage; loss in production of growing agricultural crops; change in characteristics or quality of ground water or surface water affecting the owner's ability to use the water; impediment to the operation of drain fields for septic systems; increase in soil toxicity; and reduction of soil productivity.

NEW SECTION.  Sec. 4   A new section is added to chapter 77.55 RCW to read as follows:
     An owner of a property interest in public or private property may file an action pursuant to section 3 of this act for harm resulting from a condition imposed by the department of fish and wildlife in an approval issued according to this chapter. Any offers of compensation made pursuant to section 3 of this act and any damages awarded in an action filed pursuant to section 3 of this act shall be paid from the current funds appropriated to the division of the department that imposed the condition in the approval issued according to this chapter.

NEW SECTION.  Sec. 5   This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.