BP BHEAD INT S [atlas:bill]

AN ACT Relating to limiting the liability of utilities for efforts undertaken to protect their facilities from adjacent vegetation; amending RCW 64.12.040; and creating a new section.

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

NEW SECTION. Sec. 1. (1) The legislature finds:

(a) Utilities that provide service for the public necessity and convenience, particularly electric, water, and sewer utilities, maintain facilities in rights of way and where easements, both acquired and implied, exist;

(b) Vegetation growth on state lands and private properties adjacent to utility facilities can cause damage to utility facilities and pose public safety concerns where such vegetation grows or falls into these facilities;

(c) When vegetation from adjacent land or property causes damage to utility facilities, utility service to customers might be disrupted, collateral damage might occur to other properties, and the general public might be placed in imminent danger;

(d) In Sherrell v. Selfors, 73 Wn. App. 596 (1994), the court delineated appropriate and specific damages to be awarded for damages to different forms of trees, timber, and shrubs; and

(e) In Birchler v. Castello Land Co., 81 Wn. App. 603 (1996), the court awarded damages for emotional distress for a violation of RCW 64.12.030, the timber trespass statute.

(2) The legislature declares:

(a) Utilities have a dual interest in protecting their facilities from potential damages caused by vegetation on adjacent lands or properties and preserving service continuity and reliability for the customer;

(b) The cutting or removal of trees, timber, and shrubs by a utility from adjacent lands or properties is often done to protect the utility's facilities, to maintain service continuity and reliability, and to protect the general public, not for commercial or profit-motivated purposes;

(c) Utilities should not be liable for treble damages and special damages for emotional distress when the utility removes or cuts vegetation in order to protect their facilities and maintain service reliability;

(d) Utilities should be immune from liability for cutting or removing from adjacent lands or properties vegetation that has encroached upon or damaged utility facilities; and

(e) Allowable damages as set forth in Sherrell v. Selfors should be codified.

Sec. 2. RCW 64.12.040 and Code 1881 s 603 are each amended to read as follows:

(1) If upon trial of such action it shall appear that the trespass was casual or involuntary, or that the defendant had probable cause to believe that the land on which such trespass was committed was his or her own, or that of the person in whose service or by whose direction the act was done, or that such tree or timber was taken from uninclosed woodlands, for the purpose of repairing or maintaining any public highway, utility facility, or bridge upon the land or adjoining it, judgment shall only be given for single compensatory economic damages.

(2) A utility is immune from any liability under RCW 64.12.030 and this section when it:

(a) Cuts or removes any trees, timber, or shrubs that have damaged or pose an imminent threat to damage utility facilities and the utility makes a reasonable effort as soon as practicable to notify and secure agreement from an adjacent land or property owner of record, or the resident of the property, with respect to the disposal of any trees, timber, or shrubs that have been cut or removed by the utility; or

(b) Cuts or removes any trees, timber, or shrubs that have encroached upon utility facilities after making a reasonable effort to notify and secure agreement from an adjacent land or property owner of record, or the resident of the property, with respect to the removal and disposal of any trees, timber, or shrubs located on land or property adjacent to utility facilities.

(3) For the purposes of this section:

(a)(i) "Compensatory economic damages" means restoration and replacement value, stumpage value, production value, or lost profit, as appropriate and applicable to residential and recreational property, commercial timber, commercial productive fruit trees, or Christmas trees intended to be sold at market unless the damage is caused to natural vegetation.

(ii) Compensatory economic damages allowable for natural vegetation loss are stumpage value only;

(b) "Natural vegetation" means a tree indigenous to the area in which it has grown and is of such age and condition that it can be reasonably determined to have grown naturally in its present location and it was not planted for the purposes of residential aesthetics, or commercial, production, or retail sale; and

(c) "Utility facility" means lines, conduits, ducts, poles, wires, pipes, conductors, cables, cross-arms, receivers, transmitters, transformers, instruments, machines, appliances, instrumentalities, and all devices, real estate, easements, apparatus, property, and routes used, operated, owned, or controlled by an electric, water, or sewer utility, natural gas, or telecommunications company, for the purposes of manufacturing, transmitting, distributing, selling, or furnishing electricity, water, sewer, natural gas, or telecommunications services.