On May 6, the Pagosa Fire Protection District (PFPD) Board of Directors unanimously approved the release of a memorandum from the district’s attorney regarding Pagosa Area Water and Sanitation District’s (PAWSD’s) fire hydrant system.
Following an executive session, the board voted to release the memo when it was ready. No additional discussion took place in the open portion of the meeting prior to the vote.
The four-page memo prepared by Dino Ross of Ireland Stapleton, released on and dated May 15, outlines information relating to the obligation of a water district to maintain its fire hydrants and be responsible for the costs.
In the memo, Ross explains the memo is being provided to the PFPD with the understanding that it would be shared with the Pagosa Area Water and Sanitation District (PAWSD), Town of Pagosa Springs and Archuleta County.
“The purpose of this memorandum is to provide general information regarding the obligation of a water district or a water and sanitation district (collectively, a ‘Water District’) to maintain its fire hydrants in compliance with the applicable fire code and to be responsible for the associated costs,” it states. “This memorandum is not intended, and shall not be construed, as providing legal advice to PAWSD, the Town, or the County, each of which should consult their own legal counsel in evaluating the information set forth in this memorandum.”
The memo then discusses fire codes, explaining, “a fire district cannot apply and enforce a fire code within a municipality or a county unless the municipality or county, as applicable, has adopted the fire code. “
It further explains that the fire district currently applies and enforces the 2015 edition of the International Code Commission’s model international fire code with local amendments within the town and the 2009 edition of the international fire code in the county.
It notes the town adopted its version of the code via ordinance in 2017, and the county adopted its code by resolution in 2013.
“So, when the Fire District applies and enforces the Adopted Fire Codes within the Town or unincorporated portions of the County, it is using the fire code adopted by the Town or the County, as applicable,” it states. “As such, the Adopted Fire Codes carry the status and authority of a County code or a Municipal code, and not just the Fire District’s fire code.”
The memo then delves into a fire district’s ability to enforce codes through fire districts, citing examples from case law.
“The Town’s legal status as a home rule municipality means it has the authority through its police powers to enforce, through the Fire District, the Town Fire Code against PAWSD,” it states, later adding, “The County, which has the same police powers, has the same power to apply and enforce, through the Fire District, the County Fire Code against PAWSD.”
It then explains, “The Adopted Fire Codes set forth specific requirements that the owner of a fire hydrant system must meet, including minimum flow rates and annual maintenance and testing requirements. My understanding is that PAWSD owns its water system and hydrants. This memorandum focuses on the fire code requirements for fire hydrants as a system (‘Hydrant System’). Neither the Adopted Fire Codes nor this memorandum are concerned with the other operational aspects of PAWSD’s water system.”
It adds that PAWSD, like the PFPD, is a Title 32 district under Colorado law and makes the distinction that PAWSD is not a public utility subject to the Colorado Public Utilities Commission, meaning it is “subject to the laws applicable to a special district and more generally to the laws of Colorado relating to local governments.”
It then states, “Under Colorado law, a Water District is responsible for maintaining its Hydrant System, regardless of whether a fire district1 uses water from the Hydrant System for fire suppression,” before delving into related case law.
The memo also indicates that cases have determined that a water district cannot charge for water used for fire suppression.
“Through its rate setting, the Water District can account for the historical annual use of water for fire suppression,” it notes.
The memo then delves into prior hydrant testing involving the two districts.
“I understand that a number of years ago, the Fire District had an agreement with PAWSD to perform annual testing of PAWSD’s Hydrant System,” Ross wrote. “Due to a damaged pipe during the Fire District’s annual testing, PAWSD stopped having the Fire District perform the annual testing. I further understand that PAWSD has not performed annual testing of the Hydrant System since that time, and some of the hydrants are not operable. As stated earlier in this memorandum, PAWSD is responsible for the annual maintenance and testing. Moreover, its failure to properly maintain and test its Hydrant System may make it liable to a landowner whose residence or building is damaged or destroyed when the Fire District is unable to draw water from the Hydrant System.”
The memo then cites a 1989 case in which the Colorado Court of Appeals ruled in a case where a hydrant was dry when firemen attempted to use it in fighting a fire just outside of the water district’s boundary, with the court ruling the water district assumed a duty to the fire district to have water available at the hydrant.
“The Court’s reasoning in Wheatridge Lumber would apply equally the current situation, where PAWSD installed a Fire Hydrant System that the Fire District would rely upon for water to protect neighboring residences and buildings,” Ross wrote. “If PAWSD’s hydrants are inoperable or cannot provide adequate water, it may be liable to a neighboring landowner for damage to or loss of their home or building due to a fire. Under Wheatridge Lumber PAWSD has a duty to ensure its Hydrant System is maintained and tested.”
The memo then concludes that a water district “is responsible for complying with the applicable fire code, which in the current case is the Adopted Fire Codes of the County and the Town. The Adopted Fire Codes impose specific requirements on the owner of a Hydrant System, including minimum flow rates and annual maintenance and testing requirements. Under Colorado law, a Water District is responsible for meeting these requirements, not the fire district. Further, the Water District cannot charge a fire district for use of water through the hydrants for fire suppression purposes.”
In an email to The SUN, PFPD Chief Robert Bertram indicates there have also been questions related to the responsibility for new construction fire suppression water supply, which was not address in the memo.
“The Fire District utilizes the adopted fire codes to determine fire suppression water supply requirements,” he explains. “These requirements can included needed fire flow and fire hydrant placement. Buildings requiring automatic sprinkler systems have additional fire flow requirements.
“PAWSD does not have any obligation to fund the installation of new fire hydrants for developers or provide higher flow rates in areas that it is not available. If the infrastructure can only support a flow of 750 [gallons per minute, or gpm], there is very little that can be done to make it flow 1,500 gpm without completely rebuilding the infrastructure.”
randi@pagosasun.com
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