TRWA Annual Convention - Fire Flow Presentation

Fire Flows: What’s Next for
Rural Water Utilities?
Is that a Fire Hydrant?

John J. Carlton
TRWA 44th Annual Convention
March 22, 2013
Austin, Texas
2705 Bee Cave Road, Suite 200
Austin, Texas 78746
(512) 614-0901
www.carltonlawaustin.com
©2013

Issues Regarding Fire Flow for
Rural Water Systems

• Impact on system operation/construction?
– Business Decision
• Liability?
– Legal Issue

Austin, Texas 78746
(512) 614-0901
©2013

The Fire Flow Debate - Liability

• Statutory/Regulatory Duty to Provide Fire
Flow?
• Contractual Duty to Provide Fire Flow?
• Common Law Duty to Provide Fire Flow?

Austin, Texas 78746
(512) 614-0901
©2013

Statutory Fire Flow Service
Requirements
• There are limited statutory obligations to
provide fire flow in Texas, BUT….
• There are limitations on liability for some
types of water providers.
• There are some statutory requirements if a
water provider attempts to provide fire flow
or has devices that look like fire hydrants.
Austin, Texas 78746
(512) 614-0901
©2013

Requirements
• Water Districts “… may engage in fire-fighting
activities and may issue bonds or other
indebtedness for fire-fighting purposes...” Tex.
Constitution Art. XVI, §59(f)

Austin, Texas 78746
(512) 614-0901
©2013

Requirements
• SUDs may provide “fire-fighting facilities to
perform all fire-fighting activities within the
district.” Water Code §65.012(b)

• WSCs may supply water for fighting fires.
Water Code, Chapter 67

Austin, Texas 78746
(512) 614-0901
©2013

Limitations on Liability
• Cities, Districts & Emergency Services
– §101.023, Civil Practice & Remedies Code
– Cities (§101.23(c), Civil Practice & Remedies
Code)
• max. $250,000 for each person
• max. $500,000 for each single occurrence for bodily
injury or death and
• max. $100,000 for each single occurrence for injury to
or destruction of property

Austin, Texas 78746
(512) 614-0901
©2013

– Local Governments (inc. SUDs)(§ 101.23(b), Civil
Practice & Remedies Code)
injury or death and

Austin, Texas 78746
(512) 614-0901
©2013

– Emergency Services Organization (inc. VFDs and
VEMS entities)(§ 101.23(d), Civil Practice &
Remedies Code)
injury or death and
Austin, Texas 78746
(512) 614-0901
©2013

– Governmental Functions
– Immunity is not waived for “failure to provide or
the method of providing … fire protection.”
• Civil Practice & Remedies Code, §101.055(3)

Austin, Texas 78746
(512) 614-0901
©2013

• Civil Practice & Remedies Code §93.002(a)
– “It is an affirmative defense to a civil action for
damages brought against a defendant who is an owner,
lessee, or occupant of real property who permits a
fire-fighting agency to connect a dry fire hydrant to a
source of water on the property or to install a dry
fire hydrant on the property that the damages arise
from:
• the condition or use of the dry fire hydrant;
• the installation or maintenance of the dry fire hydrant; or
• the failure of the water source to contain an adequate supply
of water during a fire.“
Austin, Texas 78746
(512) 614-0901
©2013

• WSCs – Water Code §67.0105 allows a WSC to
contract with a governmental entity or volunteer
fire department to supply water to the entity-
owned or WSC-owned fire hydrants for use in
fire suppression by the government entity’s fire
dept. or the volunteer fire dept.
– Once a WSC enters into this type of contract,
its liability is capped at the same liability limits
as the entity the WSC has contracted with.

Austin, Texas 78746
(512) 614-0901
©2013


• WSCs (w/out §67.0105 contract) & IOUs
• What is the liability of these WSCs and IOUs
for failing to provide fire flow?
• Have option to protect from potential liability
by obtaining insurance coverage.

Austin, Texas 78746
(512) 614-0901
©2013

Requirements
• Health & Safety Code §341.0357(a)
– “The owner of any device having the appearance of a
fire hydrant … shall paint the device black if the
device is nonfunctioning or otherwise
unavailable for use …. The owner may place a black
tarp over the device instead of painting the device
black … if the device is temporarily nonfunctioning, or
temporarily unavailable for use in a fire emergency, for
a period not to exceed seven days. “

Austin, Texas 78746
(512) 614-0901
©2013

Requirements

• Health & Safety Code §341.0357(b)
– “For purposes of this section, a device is
considered to be nonfunctioning if the device
pumps less than 250 gallons of water per minute.”
• Liability for violation?

Austin, Texas 78746
(512) 614-0901
©2013

Requirements
• “Under §341.0357, an owner is not required
to first determine that the flow of a device
having the appearance of a fire hydrant is less
than 250 gallons per minute in order to paint
the device black, if the owner determines that
the device is otherwise unavailable for use by
an entity providing fire suppression services in
a fire emergency.”
Austin, Texas 78746
(512) 614-0901
©2013

Requirements
• “Additionally, if the owner determines that all
devices within a system are otherwise unavailable
for use for fire suppression services other than
on a temporary basis, an owner is required to
paint all the devices black under this section even
when the flow from certain of those devices
exceeds 250 gallons per minute.”
– Tex. Atty. Gen. Op. No. GA-0710 (April 2009)

Austin, Texas 78746
(512) 614-0901
©2013

Requirements
• Health & Safety Code §341.0358(b)
– “The regulatory authority for a public utility
(IOUs) shall by rule or ordinance adopt standards
for installing fire hydrants and maintaining sufficient
water pressure for service to fire hydrants adequate
to protect public safety in residential areas in a
municipality with a population of 1,000,000 or more. “
• Effective 9/1/2007, amended 2009
• Also applies to city of 36,000-41,000 population located in
two counties – one of which has more than 1.8 million
population
• See Also 30 TAC 290.46(x)
Austin, Texas 78746
(512) 614-0901
©2013

Requirements
• Local Government Code §232.109
– “In a subdivision that is not served by fire hydrants as part
of a centralized water system certified by the Texas
Commission on Environmental Quality as meeting
minimum standards for water utility service, the
commissioners court may require a limited fire
suppression system that requires a developer to construct:
• (1) for a subdivision of fewer than 50 houses, 2,500 gallons of
storage; or
• (2) for a subdivision of 50 or more houses, 2,500 gallons of storage
with a centralized water system or 5,000 gallons of storage.”

Austin, Texas 78746
(512) 614-0901
©2013

Regulatory Fire Flow Service
Requirements
• TCEQ regulations address what pressure and
other infrastructure capacity requirements
must be in place IF a utility chooses to provide
fire flow
– 30 TAC Sec. 290.46(r) provides that a system shall
maintain a pressure of 20 psi during fire fighting

Austin, Texas 78746
(512) 614-0901
©2013

Contractual Fire Flow Service
Requirements

• What does the Service Agreement Say?
30 TAC §290.47(b)
• What does the Tariff Say?
30 TAC §291.21
• What does the Rate Order Say?

Austin, Texas 78746
(512) 614-0901
©2013

Contractual Fire Flow Service
Requirements
• House v. City of Houston, 88 Tex. 233, 31 S.W.
179 (Tex. 1895)
– Private suit for damages resulting from fire and
lack of water for fire fighting against utility that
contracted with a city to provide water.
– “As a general rule, no person can sue on a
contract, except he be a party to or in privity with
it.” at 179.
Austin, Texas 78746
(512) 614-0901
©2013

Common Law Fire Flow Service
Requirements
• None currently recognized in Texas cases.
• Does fact that fire hydrant exists create duty
to public?
– House and its line of cases imply that it does not,
but….
– the case did not squarely address the issue, and
– water systems and society expectations have
changed since then.

Austin, Texas 78746
(512) 614-0901
©2013

83rd Legislature

Bill Relating to Fire Flow

Austin, Texas 78746
(512) 614-0901
©2013

2013 Legislation
• HB 1768 by Canales
– Companion to SB 1374
• HB 1973 by Lucio III
• HB 2677 by Moody
• HB 3813 by Howard
• SB 1374 by Hinojosa
– Companion to HB 1768
• SB 1801 by Watson
Austin, Texas 78746
(512) 614-0901
©2013

2013 Legislation
• HB 1768 by Canales & SB 1374 by Hinojosa
– Amends H&S Code 341.0357
– Changes Application to Counties
• Bordering Mexico and adjacent Counties;
• Has population of 400,000 or adjacent county with
population > 20,000; and
• Within 200 miles of Gulf of Mexico
– Eliminates Statewide Application
Austin, Texas 78746
(512) 614-0901
©2013

2013 Legislation
• HB 1768 & SB 1374 (cont)
– Applies to Fire Hydrants and Flush Valves that appear
to be hydrants (construction and locations)
– Paint All or Cap White if only for filling
– Paint All or Cap Black if unavailable
– Use Black Tarp, or other means of cover, if temporarily
unavailable
• Period of 45 Days
• After 45 days must remove tarp or paint Black

Austin, Texas 78746
(512) 614-0901
©2013

2013 Legislation
• HB 1768 & SB 1374 (cont)
– Hydrant is unavailable if
• Delivers less than 50 gpm based on most recent test in
normal conditions, or
• Public water system is not obligated to provide fire
flow or chooses not to provide fire flow

Austin, Texas 78746
(512) 614-0901
©2013

2013 Legislation
• HB 1768 & SB 1374 (cont)
– Does not apply
• within government entity that uses its own system of
color coding, or
• If system has contracted to provide fire flow
– Adds immunity from liability for failure to provide
fire flow and failure to paint black is not a
guarantee of fire flow

Austin, Texas 78746
(512) 614-0901
©2013

2013 Legislation
• HB 1973 by Lucio III
– Authorizes Regulatory Authority to impose
standards for fire hydrants and water pressure on
water supply corporations (H&S Code 341.0358)
• Authority already exists for investor owned utilities
• Extends authority to ETJ in addition to City Limits
• Expands authority to all Cities (originally just Cities
over one million population

Austin, Texas 78746
(512) 614-0901
©2013

2013 Legislation
• HB 2677 by Moody
– Provides that Hydrants may NOT be painted black
if functioning
– Allows municipality to establish standards for
retail public utilities related to fire flow
– Authorizes those standards to be the same as the
standards that apply to the municipality

Austin, Texas 78746
(512) 614-0901
©2013

2013 Legislation
• HB 3813 by Howard
– Authorizes cities of less than 4,000 population in
Travis County to require a Water Control &
Improvement District to comply with fire flow and
water pressure standards adopted by the city.

Austin, Texas 78746
(512) 614-0901
©2013

2013 Legislation
• SB 1801 by Watson
– Authorizes cities of more than 2,500 population in
wildland-urban interface to adopt regulation regarding
fire flow and pressure for ALL fire hydrants within the
city
– Wildland is an area in which there is virtually no
development except for:
• roads, railroads, transmission lines, and similar transportation
facilities; or
• development related to use of the land for park purposes or
for timberland or other agricultural purposes.

Austin, Texas 78746
(512) 614-0901
©2013

2013 Legislation
• SB 1801 (cont.)
– Wildland-Urban Interface is defined as:
• a place where an urban area and wildland meet and
that:
– is designated by the director of the Texas A&M Forest Service
to be an at-risk area for wildfires;
– is an area within one-half mile of a place described by
Paragraph (A); or
– is located in a county with an outdoor burn ban in effect for
at least 100 days during the past two years.

Austin, Texas 78746
(512) 614-0901
©2013

Questions?

John J. Carlton
The Carlton Law Firm, P.L.L.C.
2705 Bee Cave Road
Suite 200
Austin, Texas 78746
(512) 785-8355
john@carltonlawaustin.com
Austin, Texas 78746
(512) 614-0901
©2013

TRWA Annual Convention - Fire Flow Presentation

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