BILL REQ. #:  H-3414.1 

Prefiled 12/28/2005. Read first time 01/09/2006.   Referred to Committee on Natural Resources, Ecology & Parks.

     AN ACT Relating to riparian flood damages; amending RCW 4.24.470 and 4.24.490; adding a new section to chapter 77.55 RCW; and adding a new section to chapter 4.24 RCW.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 77.55 RCW to read as follows:
     (1) The department shall, when reviewing applications for hydraulic projects under RCW 77.55.021 specifically intended by the applicant to eliminate or reduce damages to upland properties caused by potential floods, give equal consideration to protecting fish life, public safety, and private property.
     (2) Any denial or conditioning by the department of a hydraulic project approval specifically intended by the applicant to eliminate or reduce damages to upland properties caused by potential floods must be accompanied by a written analysis, signed by the director, explaining the denial or condition of the hydraulic project in terms of fish life, public safety, and private property protection.

NEW SECTION.  Sec. 2   A new section is added to chapter 4.24 RCW to read as follows:
     (1) Any person who suffers damages to his or her property due to flooding of a riparian area may bring an action against the department of fish and wildlife as a state agency, along with a personal action against the director of the department of fish and wildlife, in a court of competent jurisdiction for exemplary damages of up to three times the actual damages sustained in the flooding event, plus reasonable fees for attorney expenses and expenses incurred in proving flood damages, if the department of fish and wildlife had, in the ten years preceding the flood event, denied or unreasonably conditioned a hydraulic project approval under chapter 77.55 RCW for a hydraulic project that would have prevented or lessened the flood damage. The person bringing the action under this section is not required to be the same person who applied for the denied or conditioned hydraulic project approval.
     (2) The person bringing an action under this section must prove by a preponderance of the evidence both the value of damages caused directly or indirectly by the flood event, as well as whether the completion of the project for which the denial was issued would have prevented or lessened the flood damage.
     (3) In actions where both the department of fish and wildlife as a public agency and the director of the department of fish and wildlife as an individual are found liable under this section, both the department and the director shall be held jointly and severally liable.
     (4) All damages due to the person bringing a successful action under this section by the department of fish and wildlife must be paid within thirty days of final judgment exclusively from the state wildlife account created in RCW 77.12.170.

Sec. 3   RCW 4.24.470 and 1987 c 212 s 401 are each amended to read as follows:
     (1) Except as provided in section 2 of this act, an appointed or elected official or member of the governing body of a public agency is immune from civil liability for damages for any discretionary decision or failure to make a discretionary decision within his or her official capacity, but liability shall remain on the public agency for the tortious conduct of its officials or members of the governing body.
     (2) For purposes of this section:
     (a) "Public agency" means any state agency, board, commission, department, institution of higher education, school district, political subdivision, or unit of local government of this state including but not limited to municipal corporations, quasi-municipal corporations, special purpose districts, and local service districts.
     (b) "Governing body" means the policy-making body of a public agency.

Sec. 4   RCW 4.24.490 and 1989 c 413 s 3 are each amended to read as follows:
     (1) Except as provided in section 2 of this act, the state shall indemnify and hold harmless its employees in the amount of any judgment obtained or fine levied against an employee in any state or federal court, or in the amount of the settlement of a claim, or shall pay the judgment, fine, or settlement, if the act or omission that gave rise to the civil or criminal liability was in good faith and occurred while the employee was acting within the scope of his or her employment or duties and the employee is being represented in accordance with RCW 4.92.070.
     (2) For purposes of this section "state employee" means a member of the civil service or an exempt person under chapter 41.06 RCW((, or higher education personnel under chapter 28B.16 RCW)).