HB2354

SECTION 1. The purpose of this Act is to declare that the State indemnifies, defends, and holds harmless the owner of an irrigation system, dam, or reservoir under certain conditions. The legislature finds this Act is necessary to encourage the continued operation and maintenance of irrigation systems, dams, and reservoirs that deliver water for agricultural use.

SECTION 2. Chapter 663, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:

"§663- State indemnification of owner of irrigation system, dam, or reservoir. (a) For the purposes of this section:

"Agricultural land" means land in the agricultural district under chapter 205.

"Dam" means the same as defined under section 179D-3.

"Irrigation system" means a system of intakes, diversions, wells, ditches, siphons, pipes, reservoirs, and accessory facilities established to provide water for agricultural production or other use.

"Reservoir" means the same as defined under section 179D-3.

(b) Except as otherwise provided under subsection (c) or (d), the State shall indemnify, defend, and hold harmless an owner of an irrigation system, dam, or reservoir for personal injury or property damage caused by the owner's act or omission if:

(1) The land use commission, after receipt of a petition from the owner, designates all agricultural land owned by the owner and irrigated by the irrigation system, dam, or reservoir as "important agricultural land" pursuant to chapter 205; and

(2) The attorney general, after consultation with the chairperson of the board of agriculture, finds in writing that the condition of paragraph (1) has been met. The attorney general shall not unreasonably delay making this finding after notification from the owner or land use commission that the condition under paragraph (1) has been met.

(c) Subsection (b) shall apply only as long as all of the agricultural land designated as "important agricultural land" pursuant to subsection (b)(1) remains in that designation, whether or not the land or applicable irrigation system, dam, or reservoir continues to be owned by the owner originally indemnified.

The State shall not be responsible for indemnifying, defending, or holding harmless any person when subsection (b) is inapplicable. No express declaration to this effect from the attorney general, any other state officer, or any court shall be necessary to remove the State's responsibility as soon as the "important agricultural land" designation is removed from any parcel initially designated under subsection (b)(1).

(d) Subsection (b) shall not apply when personal injury or property damage is determined by the attorney general to have been caused by the gross negligence or wanton act or omission of the owner of an irrigation system, dam, or reservoir. When the attorney general makes such a finding, the State shall have no duty to indemnify, defend, or hold harmless the owner for the personal injury or property damage and the State shall have no liability, jointly or severally, to any person or the owner for the owner's act or omission or for the attorney general's finding of inapplicability. The finding by the attorney general shall be conclusive in any court action, except if a party shows by the preponderance of the evidence that the finding resulted from the attorney general's clear abuse of discretion or wilful misconduct."

SECTION 3. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	2354
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII