Washington’s New Fire Suppression (Hydrant) Law—SHB 1512

Thanks to concerted and cooperative action by a coalition of public and private water purveyors, cities, counties, trade organizations, and fire fighting agencies (FIRE PALS), Washington now has a new fire suppression (hydrant) law. This new law resolves issues resulting from two court cases, [Lane v. City of Seattle, 164 Wn.2d 875 (2008) and City of Tacoma v. City of Bonney Lake, 173 Wn.2d 584, 592 (2012)]. The Lane case concluded that providing fire hydrants is a governmental function that provides a general benefit and must be paid for out of the general fund, which applies (arguably) to all municipal water utilities (cities, counties, special purpose districts) with fire hydrants and fire suppression service. The Tacoma case applied RCW 43.09.210, which requires a government entity to pay for any services it receives from another government entity at their ‘true and full value,’ to the provision of fire suppression services. The provisions of this bill go into effect 7/28/2013.

• Substitute House Bill (SHB) 1512 contains this (paraphrased) declaration of purpose:
  Governmental and nongovernmental water purveyors play two key public service roles: providing safe drinking water and providing water for fire protection. This dual function enables purveyors to provide these critical public services in a cost-effective way that protects public health and safety, promotes economic development, and supports appropriate land use planning.
• Provision of integrated, dual function water facilities and services benefits all customers of a purveyor.
• Water purveyors plan, construct, acquire, operate, and maintain fire suppression water facilities in response to many regulatory requirements, both utility-related and building/fire codes.
• The availability of infrastructure and water to fight fires allows for the development and habitability of property, increases property values, and benefits customers and property through lower casualty insurance rates.
• Recent Washington Supreme Court decisions have created uncertainty and confusion as to the role, responsibilities, cost allocation, and recovery authority of water purveyors and, if left unresolved, the absence of legal clarity will adversely affect the availability and condition of fire suppression infrastructure necessary to protect life and property.
• The legislature intends to clarify the authority of water purveyors to provide fire suppression water facilities and services and to recover the costs for those facilities and services.
• The legislature also intends to provide liability protections appropriate for water purveyors engaged in this vital public service.

Section 2 of the bill defines the following terms:

1. "Fire suppression water facilities" means water supply transmission and distribution facilities, interties, pipes, valves, control systems, lines, storage, pumps, fire hydrants, and other facilities, or any part thereof, used or usable for the delivery of water for fire suppression purposes.
2. "Fire suppression water services" or "services” mean operation and maintenance of fire suppression water facilities and the delivery of water for fire suppression purposes.
3. "Municipal corporation" means any city, town, county, water-sewer district, port district, public utility district, irrigation district, and any other municipal corporation, quasi-municipal corporation, or political subdivision of the state.
4. "Purveyor" has the same meaning as set forth in RCW 70.116.030(4).

Other provisions of the bill include:

Cost Allocation and Recovery
A purveyor may allocate and recover the costs of fire suppression water facilities and services from all customers as costs of complying with state laws and regulations, or from customers based on service to, benefits conferred upon, and burdens and impacts caused by various classes of customers, or both.

Contracts to Provide for Facilities and Services 
A city, town, or county may contract with purveyors for the provision of fire suppression water facilities, services, or both. The contract may take the form of a franchise agreement, an interlocal agreement pursuant to chapter 39.34 RCW, or an agreement under other contracting authority, and may provide for funding or cost recovery of fire suppression water facilities, services, or both, as the parties may agree.

Payment by Counties
A county is not required to pay for fire suppression water facilities or services except: (1) as a customer of a purveyor; (2) in areas where a county is acting as a purveyor; or (3) where a county has agreed to do so consistent with section 4 of this chapter (previous section).

Liability Protection for Fire Suppression Water Facilities and Services
(1) A purveyor that is a municipal corporation is not liable for any damages that arise out of a fire event and relate to the operation, maintenance, and provision of fire suppression water facilities and services that are located within or outside its corporate boundaries.

(2) A purveyor that is not a municipal corporation is not liable for any damages that arise out of a fire event and relate to the operation, maintenance, and provision of fire suppression water facilities and services if the purveyor has a description of fire hydrant maintenance measures. The description of fire hydrant maintenance measures must be kept on file by the water purveyor and be available to the public and may be included within the purveyor's most recently approved water system plan or small water system management program.

(3) Consistent with RCW 36.55.060 with respect to counties and notwithstanding the provisions of subsections (1) and (2) of this section, agreements or franchises may, as the parties mutually agree, include indemnification, hold harmless, or other risk management provisions under which purveyors indemnify and hold harmless cities, towns, and counties against damages arising from fire suppression activities during fire events. Such provisions are unaffected by subsections (1) and (2) of this section.

Liberal Construction
This chapter is exempted from the rule of strict construction and must be liberally construed to give full effect to the objectives and purposes for which it was enacted.

Powers Conferred by Chapter are Supplemental
(1) The powers and authority conferred by this chapter are supplemental to powers and authority conferred by other law, and nothing contained in this chapter may be construed as limiting any other powers or authority of any municipal corporation or other entity under applicable law.
(2) As to water companies that are regulated by the utilities and transportation commission under Title 80 RCW, nothing in this chapter is intended to change or limit the authority or jurisdiction of the utilities and transportation commission.

Ratification of Prior Acts 
To the extent that they provide for or address funding, cost allocation, and recovery of fire suppression water facilities and services, all ordinances, resolutions, and contracts adopted, entered, implemented, or performed prior to the effective date of this section are hereby validated, ratified, and confirmed. This chapter must not affect or impair any ordinance, resolution, or contract lawfully entered into prior to the effective date of this section.

In the SHB 1512 House Bill Report summary of testimony in favor of the bill are these comments:

The fundamental thrust of the bill is to allow cities, counties, and utilities to do what has been working for them for the past 100 years. Charging ratepayers was a mode of doing business that everyone was comfortable with and it worked well for everyone.

The liability provisions of the bill will help address the current problem of nonmunicipal water purveyors not maintaining their fire suppression systems. These purveyors will be required to put into effect a hydrant maintenance plan, which will help ensure that firefighters can actually use the facilities in a fire event. The liability provisions will also help ensure that water purveyors continue to provide fire suppression services. Given the uncertainty regarding liability, some purveyors have said that they will no longer provide hydrant service. This bill will bring some certainty back to the process and will encourage investment in fire suppression facilities and services.

The bill is consistent with existing case law, but resolves the confusion created by Lane and Bonney Lake.

The difference between a ratepayer and a taxpayer is very small, and the shift in cost will be minimal.