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Last session the Legislature passed a law requiring all fire hydrants with a flow of less than 250 gallons per minute be painted black to avoid hook-ups to inoperative hydrants, but now the Green Valley Special Utility District has decided to paint all of its hydrants black because it cannot guarantee this flow level, even citing the possibility of a terrorist attack that could make it liable for reduced flows. The cost – $70 each for painting several thousand hydrants and a lot of upset local fire departments. If there are 3,000 hydrants, that’s $210,000 for no improvement in fire service.

The full story from the Seguin Gazette-Enterprise is below. Hopefully, next session the Legislature will clarify this law – in retrospect it probably would have been better to instruct local utility districts and fire departments to come up with a standard, recognizing that flows may be different, particularly in some rural areas, than they are in other places. It is just another example showing how government one-size-fits-all solutions paint with too broad a brush.

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Fire officials say plan puts lives in danger

By Ron Maloney
The Gazette-Enterprise

Published April 13, 2008

https://www.wfaa.com/sharedcontent/dws/bus/stories/092306dnbusinmates.31d889c.html

MARION — A Marion-based water district that serves 25,000 customers in Guadalupe, Comal and Bexar counties has interpreted a new law in a way that has it painting all of its hydrants black — and has county officials and volunteer fire chiefs seeing red.

House Bill 1717 is only a few paragraphs long, and says any fire hydrant that does not work must be painted or tarped over in black so firemen know it doesn’t work.

But the Green Valley Special Utility District began the practice, officials say, because of concerns they could be held civilly liable for any malfunctioning hydrant — defined in the law as one that didn’t flow at least 250 gallons-per-minute — that was not painted black.

So they’ve decided to paint them all — just in case.

Green Valley Special Utility District General Manager Pat Allen confirmed the policy Friday and said it was initiated because of the law, which took effect last Sept. 1.

He said a rural water utility often deals with issues that can create reduced flow or other problems, and as a result, Green Valley couldn’t guarantee the adequate flow all the time.

“It’s different in a rural district from the type of system in a municipality and a lot of things can affect flow rate,” Allen explained. “I have the flow now. But I might not have it in an hour, and we can’t guarantee it.”

Allen said even though painted black, the hydrants are there for firefighters, if they wanted to use them.

“Even though those valves are black, it is still available to any fire department out there,” Allen said. “That’s been our policy ever since day one.”

In a written statement released to the newspaper at 6:20 p.m. Friday, the utility elaborated on its position.

“The standard is a sustained flow of 250 gpm, well below the most lenient standard under state insurance regulations,” the statement said. “If the valve does not meet this standard, by law, the valve must be painted black. No exceptions. If the valve is damaged and cannot meet this minimum flow, it must be wrapped in black plastic for up to 10 days for repairs. If repairs take longer, the valve must be painted black.”

Green Valley, it went on, does not provide or accept responsibility for fire protection.

“Since GVSUD does not provide, or accept responsibility for fire protection, GVSUD must paint every valve on its system that the ordinary citizen might perceive as a fire hydrant. The paint must be black.”

As Allen said, that doesn’t mean the hydrants — the utility prefers the term “valves” — cannot be used for firefighting.

“A black valve only represents that the utility does not accept firefighting liability or that the available water flow may be less than 250 gpm. This is consistent with GVSUD’s official policy that fire departments may use district water supplies on a ‘where is, as is’ basis.”

The water system, the statement continued, was designed and built to provide drinking water.

“It was not overbuilt at members’ expense to provide fire flows.”

Guadalupe County’s top emergency preparedness official and some of the fire chiefs whose volunteers provide fire coverage in the utility’s service area say Green Valley’s overreacting and creating a potentially dangerous situation where firefighters won’t know which hydrants to depend on and which to ignore.

They say that is likely to create additional legal liability for them — and lead to increased rates for homeowners insurance.

Guadalupe County Emergency Management Coordinator Dan Kinsey is a former firefighter who coordinates this county’s disaster planning and emergency response.

“I can’t fathom interpreting the law this way,” Kinsey said. “It’s clearly not the intent of the Texas Legislature to have all the hydrants in the state painted black. The legislature is just trying to increase safety by identifying inoperative hydrants. How can you identify an inoperative hydrant if they’re all painted black?”

Kinsey said officials at Green Valley Special Utility District told him they had decided to paint their hydrants on the recommendation of their attorney.

His response was blunt.

“They need to get a second opinion,” Kinsey said. “I think the safety of our residents and our firefighters is at stake, and they’re asking for liability.”

McQueeney Volunteer Fire Department Chief Tim Bogisch said his understanding of the spirit of the law was to enhance the safety of the public in rural areas.

“Basically, the intent of the law was that if a hydrant was inoperable, on too small a main or used for other purposes, such as a flush valve, it needed to be painted black. If the problem was temporary, it needed to be bagged with a black bag until it’s fixed,” he said.

Bogisch was surprised recently when he noticed a hydrant across from the convenience store along FM 725 just south of Terminal Loop was painted black — even though it’s on a large water main.

He called a Green Valley official to ask why, as Bogisch personally knew the hydrant had plenty of push. The answer was even more surprising than seeing a perfectly adequate and well-maintained hydrant painted black.

Bogisch said he was told because the utility couldn’t guarantee the flow under all possible conditions — such as during a system failure or perhaps a terrorist attack — they all had to be black.

“He said, ‘Yes, I know. We have to paint them all black, but we encourage you to still use them,’” Bogisch said.

From the fire department’s perspective, Bogisch said, there are plenty of concerns with the policy.

“I’ve got this statement from Green Valley that they’re going to paint them all black, but by all means, continue to use them,” Bogisch said, shaking his head. “If the law says they’re supposed to be painted black because they don’t work, what happens if I accidentally grab the wrong one and someone loses their house or dies when I could have gone down half a block and hooked up to a good one. I think the water supply company’s attorneys are overreacting, and I see a potential liability question for the fire department.”

Another issue that’s particularly important is the way Guadalupe County’s rural departments fight fires. A fire of any real size brings out a mutual aid response.

“Number one, a black hydrant’s harder to see, and it makes them harder to find, even if they are usable,” Bogisch said.

This county’s unpaid rural fire departments rely on donations and other fundraising to pay for much of their equipment, and part of the sales pitch they use is reducing the rates for homeowners insurance.

New Berlin Volunteer Fire Department Chief Kurt Strey is familiar with the insurance industry, both as a firefighter and as an insurance salesman. His family owns La Vernia’s Strey Insurance Agency, which offers life, commercial, home, mobile home, auto, motorcycle, boat and recreational insurance.

Insurance companies use something called a Public Protection Class code (PPC) as part of the rating criteria for writing a homeowners insurance policy.

The codes, which run on a reverse scale of 1-10 (with one being the best and cheapest in terms of cost of coverage and 10 the worst) and the PPC relies heavily on the availability of water to fight a fire.

“The next time a particular fire department and its water resources are inspected and black hydrants are found, the PPC code will go up and so will the premiums,” Strey said. “I personally think that the water companies are going way overboard on deciding to paint all hydrants black ‘just in case.’ That is not the intent of the law.”

Strey and Bogisch said they would seek to have the law changed so that a water purveyor is not allowed to paint a functioning hydrant black.

Bogisch said he thought the utility, if concerned about squandering members’ money in “overbuilding” a system to support firefighting, should probably more carefully consider the potential financial impacts of the policy, let alone the potential liability.

“I’ve read the law,” Bogisch said. “I think with materials and labor, it’ll probably cost $70 or more to paint each hydrant, and they probably have several thousand of them. I think the question, were I a member, is how much of my money will they spend painting them — and how much will they spend if they have to paint them back?”

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