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TRWA Annual Convention - Fire Flow Presentation

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Powerpoint presentation to Texas Rural Water Association Annual Convention regading issues related to fire hydrants and fire flow

Powerpoint presentation to Texas Rural Water Association Annual Convention regading issues related to fire hydrants and fire flow

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  • October 18, 2003
  • October 18, 2003
  • Transcript

    • 1. 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
    • 2. Issues Regarding Fire Flow for Rural Water Systems• Impact on system operation/construction? – Business Decision• Liability? – Legal Issue 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 3. 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? 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 4. 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? 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 5. 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. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 6. Statutory Fire Flow Service 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) 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 7. Statutory Fire Flow Service 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 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 8. 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 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 9. Limitations on Liability• Cities, Districts & Emergency Services – Local Governments (inc. SUDs)(§ 101.23(b), Civil Practice & Remedies Code) • max. $100,000 for each person • max. $300,000 for each single occurrence for bodily injury or death and • max. $100,000 for each single occurrence for injury to or destruction of property 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 10. Limitations on Liability• Cities, Districts & Emergency Services – Emergency Services Organization (inc. VFDs and VEMS entities)(§ 101.23(d), Civil Practice & Remedies Code) • max. $100,000 for each person • max. $300,000 for each single occurrence for bodily injury or death and • max. $100,000 for each single occurrence for injury to or destruction of property 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 11. Limitations on Liability• Cities, Districts & Emergency Services – Governmental Functions – Immunity is not waived for “failure to provide or the method of providing … fire protection.” • Civil Practice & Remedies Code, §101.055(3) 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 12. Limitations on Liability• 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.“ 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 13. Limitations on Liability• 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. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 14. Limitations on Liability• 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. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 15. Statutory Fire Flow Service 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. “ 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 16. Statutory Fire Flow Service 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? 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 17. Statutory Fire Flow Service 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.” 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 18. Statutory Fire Flow Service 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) 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 19. Statutory Fire Flow Service 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) 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 20. Statutory Fire Flow Service 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.” 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 21. 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 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 22. 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? 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 23. 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? 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 24. 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. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 25. 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? 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 26. 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. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 27. 83rd LegislatureBill Relating to Fire Flow 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 28. 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 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 29. 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 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 30. 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 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 31. 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 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 32. 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 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 33. 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 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 34. 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 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 35. 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. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 36. 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. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 37. 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. 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 38. • http://www.capitol.state.tx.us/ 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013
    • 39. Questions? John J. CarltonThe Carlton Law Firm, P.L.L.C. 2705 Bee Cave Road Suite 200 Austin, Texas 78746 (512) 785-8355 john@carltonlawaustin.com 2705 Bee Cave Road, Suite 200 Austin, Texas 78746 (512) 614-0901 www.carltonlawaustin.com ©2013