Staying Safe When Working Near Other Utilities

By Cristi Bruns, HYMAX Training and Technical Field Support Manager for Mueller Water Products

Utility lines for electricity, phone, cable TV and many others are increasingly being buried underground, making repairs to water pipelines more and more complicated. While putting lines in the ground helps protect utilities from storms and for aesthetic reasons, it means that there is a lot to avoid while utilities and contractors do their jobs. Statistics show that on average there are more than 300,000 incidents each year related to utilities being struck during repairs and installation of new services in the water and wastewater industry. These incidents cause millions of dollars in terms of costs incurred by lost time, damages, loss of service, and loss of fire suppression services. Not long ago, workers building a new section of I-4 in Orlando, Florida struck a natural gas line. The ensuing excavation and repair closed this busy East-West corridor for over 12 hours, causing serious delays and closures of local businesses. As you could imagine, there was a lot of anger from the travelling public and businesses seeking damages.

Here’s a list of things to do to ensure that you stay safe and minimize the chances of causing damage during excavation.

Call 811

811 is nationwide service that will give you all the information you need to make a request to locate pipes and other underground infrastructure. When you call 811, you can find out if it’s safe to dig with

Color Codes for Markings This is a legend of color codes that you will find on the ground indicating the location of utilities.

Red: Electric power lines, cables, conduit and lighting cables Orange: Telecommunication, alarm or signal lines, cables or conduit Yellow: Natural gas, oil, steam, petroleum or other gaseous or flammable material Green: Sewers and drain lines Blue: Drinking water

As a safety precaution, it pays to develop relationships with the other utility companies in your area to discuss issues, and ongoing or future projects.

requests usually completed within two to three days, and a locate lasting 30 days. This process can also be done online – simply google 811 with your state and the appropriate website will most likely be at the top of the search.

Make sure that you wait for the locate to be completed before you dig – it’s the law. Almost all utilities are a member of 811 and will be willing to come to your dig to help ensure that their lines don’t get hit. In case of an emergency repair, it is also critical to call 811 before you start. The staff can quickly provide info and provide service around the clock. If you uncover an issue or hit a utility line during a dig, 811 staff have the contact information to reach the right people at any time to help find someone who can make the repair. You might have to pay the repair costs depending on many factors but regardless, the repair must be made and can’t be ignored.

Take Notes and Pictures

Make sure that you take plenty of pictures before, during and after the excavation is done. Note the locate marks and flags prior to digging, but keep in mind that occasionally the actual location of the utility and the marks are very different. Take pictures of where lines are actually located. Is the natural gas line underneath the water line or next to it?

Gas lines have a minimum bury depth of 24 inches, while water has a 36-inches minimum bury depth, however, it’s not uncommon to find some strange things in the trench such as lines that cross over top of yours at intersections or T’s. Take lots of notes and use them to update your utility maps, and share this information with other workers and management to foster safety in the field.

Use the Right Tools

How are you going to excavate the area around the repair? Be sure to choose the right tools for your excavation. Vacuum (or vac) trucks or trailers are the go-to tools for both identifying other utility lines and safely excavating the area that you need to work in. Some companies now make vac units specifically for excavation. There will be exceptions, mostly for new construction when you could use backhoes and mini-excavators. In every other case, however, the ground has been previously disturbed so a vac unit will be the best, safest and most economical way to go. Using a probe while looking for other utilities during your dig is necessary but be careful. Use your experience and common sense when probing for utilities to avoid lines being struck.

Before you start to dig, be sure to call 811 to get all the information you need to make a request to locate pipes and other underground infrastructure.

Using products that are easy to install will help make repairs quickly to minimize time in the ditch and help minimize risks.

Communicate with Other Utilities

With so many utility lines now in the ground, the issue of other utilities attempting to make their repairs at the same time happens more frequently and has resulted in many changes, including the need to schedule repairs, new businesses being formed to located utilities, and 811 laws. Consider having a representative of a specific utility on site to assist your dig. If you’re the utility that is required to be on-site, this will be time well spent to protect your assets. An ounce of prevention is worth a pound of cure, and a little precaution before a crisis is better than a huge repair afterwards.

Get to know the other utility companies in your area and consider having monthly or quarterly meetings to discuss issues, and ongoing or future projects. Use the photos and notes from your previous repairs to point out issues and problems to other utilities. If you build friendships with these other folks, you will more likely be able to reach them after normal business hours since this is when most of our emergencies take place.

Working near utilities is complicated business and the lack of space underground will become further complicated as utilities get replaced. If you take the steps above, you will be in a much better position to excavate more effectively, avoid striking other utility lines, and save time and money.

Cristi Bruns has more than 25 years’ experience in operations, sales and training with hands-on experience in daily water system operations. At HYMAX, she provides field and installation support to customers, offers educational training, and leads lunch and learn training sessions for engineers and operators.

Ask Larry

A Q&A column with TRWA Technical Assistance Director Larry Bell

Q:Our tariff allows us to charge customers a “groundwater district production fee.” Can you explain what this fee is and how it works?

A: This fee should only be in your tariff if you obtain water from a groundwater conservation district (GCD). In most cases, when a utility obtains their water from a GCD, the GCD will charge the utility a fee associated with producing that water from the aquifer. The utility may then pass this fee along to its customers in the form of a “groundwater district production fee,” as you see in your tariff. This fee is usually passed through in total to the ratepayers on a monthly or quarterly basis based on how much water each customer uses.

This is the fair way to distribute the costs of obtaining groundwater to those customers who ultimately use it. For calculation purposes, most water systems’ billing programs have a feature that takes the number of gallons of water used by each customer and multiplies those gallons used by the cost per unit of the groundwater production fee, which may change from month to month or quarter to quarter.

For example, if the average monthly groundwater production fee charged by the GCD to your utility is $2,893.02, then that total fee is divided by the number of gallons of water sold that month. Each ratepayer would then pay that amount for each gallon of water they used. Note that ratepayers with zero usage in a given month should not be assessed any portion of the groundwater production fee, as they did not use any of the water produced. You should check with your billing software company to see if their software can accept the monthly fee amount and complete the internal calculations for each customer based on their meter readings.

Finally, it is important to note that the groundwater production fee is only supposed to allow the utility to recover the amount it is being charged by the GCD. The system should not make any kind of profit from passing it through to their ratepayers.

Q: What should we consider to be best prepared if a situation arises that leaves our water system without electrical power?

A: In November, the United States Environmental Protection Agency (EPA) held Infrastructure Security Month to promote the vital role of critical infrastructure and the importance of strengthening the security and resilience of that infrastructure. As part of that initiative, the EPA put out a 49-page guide covering topics that utilities and their staff should consider when planning for power outage events. The guide can be found at https://bit.ly/376StJqm, and addresses eight areas in which water sector utilities can increase their power and resilience:

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7. Communication – Establish capability to communicate with electric providers, local agencies and the public to help your utility respond more quickly and efficiently to a power loss. Power Assessments – Conduct a power assessment to understand your essential equipment energy needs. Emergency/Standby Generators – Learn how to select, maintain and register requirements for a fixed or portable emergency generator for your utility. Fuel – Develop plans to ensure you have enough fuel for your generator during a power outage emergency. Energy Efficiency – Increase your energy efficiency to allow you to operate on backup power longer during emergencies and to reduce your electricity bills during normal operations. On-site Power – Consider options for generating your own power. Black Sky Planning – Prepare for longduration, widespread power outages.

8. Funding – Learn about possible funding sources for resilience measures.

presence of fire hydrants at various locations within our system. How should we explain the use of hydrants for other purposes, such as flushing?

A: One way to explain the presence of hydrants without accompanying fire flow is to educate your customers on flushing as a primary function of hydrants within a distribution system. Most folks automatically consider the purpose of a hydrant is to allow fire departments to access water to use in fire suppression operations, but many hydrants have never actually been used for this purpose. Rather, the day-to-day main reason for installing in-line hydrants is to assist in maintaining potable water throughout the distribution system on a year-round basis.

While most water systems work in partnership with their local volunteer fire departments by allowing them to fill their tanks at the system’s fire hydrants, often at no cost, many folks would probably be surprised that the vast majority of hydrants have never been used for fire suppression activities. This is because there are several potential problems that can occur when using rural fire hydrants for traditional fire suppression. First, when tanker trucks are filled up in rural areas, this is typically accomplished by drafting from the hydrant at its given pressure. Water lines in rural areas typically aren’t big enough to accommodate the pressure created when a truck hooks up to a hydrant and pulls water at a vacuum. I know of at least one system who ended up with roughly a mile of busted line after a fire department tried to pull as much water as quickly as possible by hooking up to one of their rural hydrants in this way.

Another issue is that some systems are not hydraulically adequate to open a large hydrant all the way. When fully opened, these hydrants can pull water from residents in higher elevations or even create a vacuum effect from residential services. If a resident has improper plumbing, which is very likely in the rural areas where plumbing permits aren’t required, it can cause issues with water heaters and even create contamination from cross-connections. Most of the time your water operator is aware of the pressure issues in the surrounding areas and knows what rate they can flush at that site, but volunteer fire departments typically do not know of this issue.

Lastly, water hammer is an issue. Operators are trained to turn on and off valves at a slow, steady rate, but the excitement of many firemen during an emergency situation often causes them to forget about that. When a valve is turned off quickly, all the water that was flowing that direction abruptly stops and often creates line leaks and breaks. This water hammer can also carry through to residential meters and cause the same issues. Because of these issues, many people don’t realize that the most common use of distribution hydrants is to flush water after leak repairs, to maintain disinfection residuals, and during a free chlorine conversion (burnout) to remove bio-film from the water mains.

Flushing is more necessary when there happens to be fewer active customers along a stretch of the distribution system. In a subdivision that has looped lines, it is also necessary to do unidirectional flushing to make sure the water is not becoming stagnant in some areas where water is being fed from two or more interconnections. Many times, there is a point or two in a subdivision where there is equal pressure from both ends of a cross street and only when a fire or other flushing operations occur, the water in the middle of that cross street tends to be stored for several more days than other areas of the water pipelines.

Flushing programs are complex for field crews to coordinate. They require complex sequential coordination among crews. They work across the entire network with process disruptions and need timely cooperation from multiple crews.

Water mains need to be flushed to extend their useful life – whether by conventional or unidirectional flushing methods. Proper flushing helps a distribution system stay compliant, reduces consumer complaints, improves water quality, removes bacterial growth, sediments, and biofilms, restores flows and pressures, and identifies missing/broken valves/ hydrants.

In addition to flushing and fire suppression, hydrants can also be used for bulk water sales. Water systems will often have a designated hydrant to allow for the quick fill up of tank trucks for that purpose, though they should ensure that they have the proper backflow prevention in place before connecting to those types of tanks. The presence of hydrants has also been known to lower homeowners’ insurance rates within city limits, regardless of whether they are actually used for fire suppression, so sometimes cities will request that systems install hydrants in those areas.

Keep It Legal

Answers to Members’ Questions by TRWA Assistant General Counsel Trent Hightower

Q:Can employers require their employees to get the COVID-19 vaccine once it becomes available?

A: The answer appears to be yes, but employers need to be aware of a couple notable exceptions and other things to consider. Since employment in Texas is generally at-will, employers can terminate employees for almost any reason, including refusal to obtain the vaccine. However, if an employee has a medical condition or sincerely-held religious belief that prevents them from taking it, employers must provide a reasonable accommodation for their situation, if doing so doesn’t pose an undue burden on the employer.

Reasonable accommodations include things many water systems are probably already doing to some extent, such as allowing employees to work from home, requiring them to wear a mask or providing them with a separate workspace away from other people. If an employee claims a medical condition or sincerely-held religious belief that prevents them from taking the vaccine, TRWA advises our members to take them at their word since the cost of proving otherwise could be greater than the burden of simply making an accommodation.

Another thing to consider is potential legal liability for employers who make taking the vaccine a condition of employment. If an employee is required to take the vaccine and has a bad medical outcome from doing so, such as an allergic reaction, the employer could be the subject of a Workers’ Compensation claim. We have seen some articles that stress that this could be a slightly greater concern for these vaccines due to the compressed timeframe of their creation and distribution relative to previous vaccines.

All of these factors together indicate that the best course of action is to strongly recommend that employees obtain the vaccine on a voluntary basis. Systems might also consider a more targeted approach by requiring the vaccine for front-line workers such as operators (subject to the exceptions discussed above) while recommending it for other personnel.

Q: Our practice is to obtain and record easements from new owners every time a property changes hands, even if we already have a recorded easement from the previous owner. Is this the best practice? We were recently told that doing this “clogs up the deed records.” Also, will a subsequent easement nullify any previous easements we may have?

A: As a general practice, I would rather have too many easements than too few. Further, I am not sure how getting a new easement from a subsequent purchaser would "clog" the deed records or what the negative ramifications of that could be. County clerks are more than capable of maintaining the additional documentation in their deed records, and with more and more of them switching to electronic filing systems, this seems like an outdated concern. However, even for counties that maintain paper deed records, they should have the resources in place to maintain these records, which are essential to preserving the rights of all parties, including utilities.

There are several reasons utilities should obtain a new easement every time a property changes hands. First, if your policy is to always require an easement when a new owner requests service, you will never find yourself in the position of discovering later that you don’t have the easement you need. As I have discussed in this column before, you can require an easement as a condition of service up front, but once you begin serving a customer you lose that leverage because the Public Utility Commission (PUC) will not support disconnecting service later for failure to secure necessary documentation. Requiring an easement from all new applicants also cuts down on the need for your administrative staff to research the deed records for each piece of property to determine whether your interests are adequately protected by the easements already in place.

Further, while recorded easements are enforceable against subsequent purchasers, if you fail to obtain an easement from a new owner you are at the mercy of the language contained in the old easement. This means that if a court finds the old easement to be defective or invalid, or if the

easement doesn’t meet your system’s current needs, your utility would be out of luck. An easement from 1970 is better than nothing, but what if it doesn't accurately describe the current location of your lines on the property, or what if it doesn't let you do certain things you need to do?

For example, let’s say an intermediate property owner and the utility agreed to move your lines to another location on the property in the 1980s, but they never recorded a new easement. Without a recorded easement documenting that change, your line is technically trespassing on the current owner’s property. Similarly, what if an old easement doesn't give you adequate room to physically work on your lines? You should think of getting a new easement when property changes hands as your chance to update your easements so that they provide you with the exact location and access that you need for your current operation. Also, even if the easement from the new owner is identical to the one from the old owner, I see no downside to obtaining it. As I mentioned earlier, recorded deeds are enforceable against subsequent owners, but most attorneys would prefer to have a document signed by the person they want to enforce against right now. Finally, if landowners insist, utilities can file a release of old easements with the county clerk along with the newly-executed easement.

As for whether subsequent easements nullify older easements, in general it would only do so to the extent that the new easement clearly conflicts with the older one. If they can both be read concurrently, they both remain valid and enforceable. For example, if you have a recorded easement from 1990 allowing you to place a line across the east side of a property, and a new owner in 2020 grants an easement for a line across the west side, both easements are valid and enforceable because they are for separate, distinct lines. However, if the 2020 easement states that the parties want to move the 1990 line somewhere else on the property, the old easement is superseded. It all just depends on the language of your easement documents, which will vary from case to case depending on your negotiations with landowners.

Q: I have heard some boards conduct “workshops” to discuss certain topics rather than holding meetings under the Texas Open Meetings Act (TOMA). Is this allowed, and if so, when?

A: The Legal Department has received several questions on this recently, and in almost all cases once I delved into the system’s goals for the proposed workshop, I have discovered that what they are describing would in fact be an illegal meeting in violation of TOMA. Most questions I get in this area involve common misconceptions about TOMA. Some people think that calling a gathering a “workshop” instead of a “meeting” lessens or dispenses with the procedural requirements of TOMA. Others are under the impression that if a board simply discusses a topic without acting upon it, or if they don’t discuss it in much detail, they can call it a workshop without having to comply with TOMA. Neither of these are correct.

TOMA has a complicated definition of “meeting,” but essentially any gathering in which a quorum of your board is present where they discuss official system business is a meeting fully subject to the Act’s many requirements. One thing that I think trips people up is that TOMA goes on to state that “attendance by a quorum of a governmental body at a regional, state, or national convention or workshop. . . if formal action is not taken and any discussion of public business is incidental. . . to the workshop” is not a meeting. It is critical to understand that “workshop” has a very specific context here. The primary example I use is our TRWA conferences. Your board is free to attend one of our conferences as a group to receive training, and they can even incidentally engage with presenters and vendors about your official business as part of that training. Further, note how the discussion of workshops specifically refers to their “regional, state, or national” nature. To me, this implies that educational opportunities that also include people outside your utility’s board or customer base best fit within this exception.

One member recently asked if they could bring this type of training to their board on a local level without calling an open meeting. In other words, can a system invite a consultant to their office to discuss human resources issues with their board or give them training on compliance with various laws and regulations? The answer is yes, as long as you are careful not to tread into actual discussions of official business or policy. For example, your board could receive training on the need for a policy to implement TOMA’s requirement that the public be allowed to speak at your meetings. Once your board starts discussing what goes in that policy and how to implement it, however, they have begun discussing

official business without convening an open meeting. In many cases, this will be a very fine line to walk, so all board members and staff participating in such sessions should be vigilant at all times as to the substance of their sessions.

Q: Our water supply corporation held our 2020 annual meeting before COVID-19 began shutting things down. With the pandemic still going on, we expect our 2021 annual meeting will be impacted. Do you have any tips for us on how to handle our annual meeting during the pandemic? What lessons did systems who were impacted this year learn that could help us this time around?

A: While the COVID-19 pandemic only affected water supply corporations who held their annual meetings in March or April of 2020, it is likely that the majority of TRWA members will have their annual meetings impacted by the pandemic in some fashion in 2021. When the pandemic first hit, the TRWA legal department advised our members to hold their meeting on their scheduled date, if at all possible. This advice continues into 2021 for a few reasons. First, though there is promising news about a vaccine, we still don’t know how long the pandemic will last, so it is unclear when a rescheduled meeting would be able to take place free of coronavirus concerns. Also, based on the experiences of systems who postponed their 2020 meeting, we know of a few complications that can arise from postponement, such as determining when directors’ terms end or begin, and determining which members of your corporation are eligible to vote when the meeting eventually occurs.

Additionally, since the scale of the pandemic took us by surprise in 2020, it was unlikely that a WSC would get in very much trouble if they moved their meeting while attempting to comply with the law to the greatest extent possible. While that is still probably the case, it could more of a concern in 2021 now that systems have had almost a year to adjust to life with COVID-19. The governor’s order allowing for online and phone-based meetings remains in effect, so systems have alternative methods for holding meetings at their disposal that may not have been available to them in 2020. These are factors that courts or the PUC could take into consideration if a board’s decision to postpone its annual meeting were challenged.

With that in mind, TRWA continues to recommend the following best practices for conducting your annual meetings in 2021: • Meetings should be short, to the point, and free of unnecessary social activities. While some systems use fun activities like meals or door prizes to generate attendance, TRWA recommends that systems refrain from this practice once again in 2021 to promote social distancing and to ensure compliance with any gathering restrictions that may be in place statewide or locally. Members should be strongly encouraged to vote ahead of time, rather than in person. State law and TRWA Model Election Procedures allow members to mail their ballots or drop them off at a designated location before the date of the annual meeting. Systems might consider promoting and encouraging these voting methods while letting people know that the meeting itself will be a short event. Establish safe voting procedures for those who wish to vote in person at the meeting. Since the law allows people to vote in person at your meeting, we do not recommend denying them that option altogether. Instead, many systems in 2020 came up with creative ways for members to safely vote in person, including utilization of drive-through voting, outdoor voting in a parking lot or other structure, or giving voters access to the voting station on a one in, one out basis. Members should be encouraged to view the meeting online. As discussed above, Governor Abbott has relaxed Open Meetings Act requirements for the duration of the pandemic, which means you can broadcast your annual meeting online. If you have the capability to do so, promote the online option to discourage people from gathering in a large group.

If you have a legal question you would like answered, please email legal@trwa.org.