Quench – March/April 2018

Strategies for Texas Utilities Facing Decertification of CCN Service Areas

by Cities and Developers

Also Inside:

South Rains SUD Conducts Fundraiser to Support Rural Water Irrigation Systems and Backflow Prevention — What is the Correct Call?

March / April 2018 www.trwa.org

TRWA Today

TRWA Board of Directors

Officers Brian Macmanus President Cameron (Dist. 6)

Chris Boyd Vice-President Denton (Dist. 3) Bruce Alexander Secretary Medina (Dist. 2)

Barry Miller Treasurer

Gonzales (Dist. 5)

Pat Allen Immediate Past President Guadalupe (Dist. 9)

District Directors Mark Gardenhire

Shackelford (Dist. 1)

Delores Atkinson Lampasas (Dist. 4)

Clay Hodges Hunt (Dist. 7) Charles Beseda Hill (Dist. 8)

Kent Watson Brazos (Dist. 10)

Kevin Spence Franklin (Dist. 11)

Vickie Armstrong Kaufman (Dist. 12)

Robert Nettles Walker (Dist. 13)

Rhonda Shaw Rusk (Dist. 14)

Established in 1969, the Texas Rural Water Association (TRWA) is a statewide nonprofit trade association with an active membership consisting of approximately 750 nonprofit water supply corporations, water districts, small-town water departments and investorowned utilities. In addition, more than 200 water industry suppliers participate in TRWA activities as associate members. TRWA members provide water and wastewater service to 2.5 million customers throughout Texas.

TRWA is dedicated to helping directors, managers, operators and office professionals provide efficient service and clean, safe drinking water to their customers. Through onsite technical assistance, education and information exchange, TRWA helps its members better meet their needs as well as the needs of their customers.

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Quench — March / April 2018

Leadership Team

Lara Zent

Allison Kaminsky

Lisa Adams

Larry Bell

Celia Eaves

Janice Gibbs, CPA

Jason Knobloch

Angela Russell, CMP

Executive Director and General Counsel Deputy Executive Director Foundation Development Director Technical Assistance Director Professional Development and Training Director Finance Director Environmental Services Director Member Services Director

Office Staff

Melody Bennett

Pam Cantrell

Kelsey Copeland

Patti Flunker

Angela Harris

Ross Brookbank

Ariane Walker

Amanda Wilson

Project Support Specialist Accounting Support Specialist Communications Assistant Executive/Legal Assistant Project Support Specialist Assistant Projects Manager, Environmental Services Training Support Specialist Administrative Assistant

Field Staff

Thomas Acker, Jr.

Michael Beadnell

Nathan Cantrell

Alex Eaves

Paul King

Deborah McMullan

Steven Mindt

Charles Perkins

Bruce Pearson

Refugio Rodriguez

James Smith

Quentin Turner

William White

Instructor Instructor Wastewater Technician Wastewater Technician Circuit Rider Source Water Protection Specialist FMT Specialist Circuit Rider Instructor FMT Specialist Circuit Rider FMT Specialist Assistant Technical Assistance Director

Contact the Editor

Editorial and advertising inquiries may be directed to the Editor, Allison Kaminsky, at 512-472-8591 or editor@trwa.org.

Join the conversation at: www.facebook.com/TexasRuralWaterAssn Find us at @TexasRuralWater and @TRWALegislative for industry and legislative news relevant to you!

s exa Ton Tap

W in te r2

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Features:

Published in Partnership with

8 10

Investing

in Our Community

Also Inside: Harmful Algal Blooms What Does a Superior Rating Mean for Your Water System

17 26

Your Texas Rural Water News Source

Texas Rural Water Association | www.trwa.org | (512) 472-8591

Letter from the Executive Director Ask Larry Answers to your technical questions

Classified Ads Advertiser Index Plan Ahead

TRWA’s Calendar of Events

The First State Flood Assessment for Texas

8

Congratulations to TRWA's Emerging Leaders

8

TRWA to Produce Consumer Magazine in 2018

By Peter Lake, Texas Water Development Board The Texas Water Development Board is leading the charge by developing the first State Flood Assessment.

TRWA is proud to present the graduates of its inaugural leadership development class!

Learn more about this new direct-to-consumer magazine we're developing for TRWA members!

Rains SUD Conducts Fundraiser to Support 10 South Rural Water

In Every Issue: Letter from the President

7

4 5 14 30 31 31

On the Cover: "Tapping in with Great Expectations," Caroline Salinas PH 2OTOSTREAM 2018 Grand Prize Winner

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By Rachel Webb, South Rains SUD Read about how this system recycled their scrap metal to support the Texas Rural Water Foundation.

Technical Assistance Corner: Irrigation Systems and Backflow Prevention – What is the Correct Call?

By Bruce Pearson, Texas Rural Water Association Learn the facts about irrigation systems and backflow prevention from one of TRWA's Instructors.

17

Meet the Winners of TRWA's Awards of Excellence

21

RuralWaterCon 2018 Photo Recap

22

From the Hole: Tales from the Road

24

Strategies for Texas Utilities Facing Decertification of CCN Service Areas by Cities and Developers

29

The 2018 winners of TRWA's most prestigious awards were announced at RuralWaterCon 2018. Read more about what our winners did to shine above the rest.

A picture is worth a thousand words! Relive a few key moments from this year's annual convention.

By Michael Beadnell, Texas Rural Water Association TRWA Instructor Michael Beadnell shares his stories from a Valve and Hydrant Maintenance class he taught at Shady Grove SUD in March.

By Paul Terrill, III and Shan Rutherford, Terrill & Waldrop Two attorneys offer an in-depth look at CCN decertification issues.

TRWA Briefs

TRWA Welcomes New Board Director and Alternate Directors; Announcing the Winners of our PH2OTOSTREAM Contest Quench — March / April 2018 3

President’s Message Howdy Texas Rural Water Association! I am humbled and truly excited to serve as your new TRWA President. I have many people to thank for the honor to serve on the TRWA Board and as President of TRWA, but I want to focus on the following: Our God; my wife, children and parents; the East Rio Hondo WSC members, Board of Directors and staff; and the TRWA members, Board of Directors and staff.

“We have proven with history that when rural water stands united and strong, we can accomplish great, positive change.”

I used my Fight'n Texas Aggie greeting "Howdy" as it rings a tone that is true to rural. As my two-year term as President begins, I challenge each of you to stay true to rural. We have proven with history that when rural water stands united and strong, we can accomplish great, positive change. The challenges facing rural water are unlimited. I ask you to pray for the TRWA leadership and staff to maintain our focus and energy on the issues that truly make the most impact on rural water, and that we are true to rural.

Accolades to our TRWA staff for a well-run RuralWaterCon 2018 in Fort Worth. Our membership is often unaware of the significant efforts behind planning and executing these complex events in a quality fashion, and our TRWA staff has us conditioned to always expect the best. Start planning now to attend the Office Professionals Conference in San Antonio in June and the Technical Conference in Galveston in July.

Several of our members have made great strides in pushing back the expedited CCN decertification process. 1926(b) federal debt protection has been the key in these efforts. This is great news for those systems with federal debt. However, I caution all systems to utilize this tool in a very reasonable and fair fashion. We don't want an accelerated battle at the federal level over 1926(b).

I want to encourage all member systems to increase their focus on customer service and leadership development. If rural water maintains superb customer service and continues to develop leaders that treat our members like people and not numbers, we will always outshine our urban neighbors. TRWA's recent graduating class from the Emerging Leaders Program were recognized at our 2018 RuralWaterCon Congratulations to all of you for a job well done! Don't ever stop growing in your leadership development.

Until our next publication, stay true to rural.

Be Good,

Brian Macmanus President Texas Rural Water Association 4

Quench — March / April 2018

Letter from the Executive Director

I welcome change and new ideas at Texas Rural Water Association. I’m interested in what new programs we can offer and what we can do to better to serve our members.

This year, we are offering two new services if we have enough member interest – a consumer magazine and GIS mapping. At RuralWaterCon, we tried out several new ideas based on feedback we received from attendees.

A few changes included holding the Annual Business Meeting separate from the Opening General Session and fitting in extra educational sessions the first morning, holding a second general session on Day 2 where we heard from Senator Charles Perry, providing presentation handouts in spiral-bound pamphlets, and including tables and seating in the Exhibit Hall.

We received a lot of positive feedback about these changes, and we know there are things we can do even better at our future conferences from input we received this year.

The Texas Rural Water Foundation Board decided to change the way we give out professional scholarships. They will be awarded year-round (up to two each quarter) to employees of small member systems that may not otherwise be able to attend a conference or training. We will be promoting these scholarship opportunities on the Training and Conference Registration pages of our website, and on the Foundation's website as well.

This Spring, we also have a change in our Association leadership. Every two years at Convention, our board elects new officers. Brian Macmanus from East Rio Hondo WSC just became our new Board President. The rest of our executive committee includes Chris Boyd from Mustang SUD as Vice President, Bruce Alexander from East Medina SUD as Secretary, Barry Miller from Gonzales County WSC as Treasurer and Pat Allen from Green Valley SUD as Immediate Past President. I’m looking forward to working with our new officers, learning from them and hearing their new ideas for the Association.

“Your ideas help us ensure that TRWA is a dynamic association that meets its members' needs and attracts new members.”

Allison Kaminsky has taken on a new leadership role at TRWA. She was promoted to Deputy Executive Director in early April. She will continue to oversee the Communications Department and will take on additional responsibilities assisting me in my role. We will also be welcoming a new attorney to our team this May. We will introduce him in our next issue of Quench.

Finally, please respond to our electronic member survey that we will send out early this summer. Your feedback on how we are doing is very important to us. Your ideas help us ensure that TRWA is a dynamic association that meets our members’ needs and attracts new members. Please feel free to call or email me any time with your input!

Warm regards,

Lara Zent Executive Director and General Counsel Texas Rural Water Association

Quench — March / April 2018 5

O

ne of the numerous benefits of a membership with the Texas Rural Water Association you hold in your very hands — our bimonthly magazine, Quench.

Year by year, our magazine has become more and more popular, thanks to you, our loyal readers!

To ensure the continued success of Quench, we have decided to implement a new subscription process for 2017. This will help us speak to the increased demand and associated production costs by ensuring an accurate and manageable distribution list.

Your membership with TRWA will continue to include complimentary subscriptions to Quench: •

Regular Utility Members — Up to five (5) complimentary subscriptions

•

Associate Members — One (1)

•

Use our online form: TRWA's website now has an online subscription form, accessible by clicking the “Publications” tab on our menu. With this form, you can update your system's list to reflect who you'd like to receive the included subscriptions, as well as purchase any additional subscriptions you may want to add to your account.

•

Download a form: You may also download the form from our website, fill it out and send it to editor@trwa.org, or fax it to (512) 472-5186.

We will issue your system’s complimentary copies of Quench to the main mailing address for your utility, beginning with our January/February issue, until any updates are received.

If you have any questions or if this new subscription process creates a financial hardship for your system, please contact us at editor@trwa.org or call (512) 472-8591.

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Quench — March / April 2018

The First State Flood Assessment for Texas

By Peter Lake, Chairman, Texas Water Development Board

F

looding is a major challenge in Texas—and like we do with most challenges, Texas is taking it head on. With dedicated funding from the Texas Legislature in 2017, the Texas Water Development Board (TWDB) is leading the charge by developing the first State Flood Assessment.

While the TWDB will be the primary state agency directing this effort, the experience and expertise of local stakeholders will be critical to the success of the State Flood Assessment.

The goals of the State Flood Assessment are to 1) assess risks and roles of various stakeholders, 2) estimate flood mitigation costs and 3) determine the future of flood planning in Texas. The final result of these efforts will be a report due to the legislature in December 2018 that will include a history of flooding in Texas; the roles of local, state and federal agencies relative to preparing for, mitigating and recovering from floods; a summary of planning and infrastructure needs; and stakeholder input on how flood planning should proceed in the state. The report will not include funding recommendations for specific strategies or projects related to flood planning, mitigation, warning or recovery, but it will include an estimate of flood mitigation costs based on estimated costs of current and future projects. Most importantly, the assessment will help determine the future of flood planning in Texas.

stakeholder input is critical. If your community has a floodplain administrator or other officials and individuals with flood-related responsibilities, we need to hear from them. Local stakeholders best know the ways flood impacts their communities and how to plan and mitigate flood in their area.

The most effective way to have a voice in this process is to participate in one of our ongoing engagement opportunities, including an online survey available through the end of April at www.

TexasFloodAssessment.com. The survey will provide us with a better understanding of community-specific flood risks; current and prospective flood planning, mitigation and protection activities; the financial needs tied to those activities; and more.

We are holding stakeholder workshops at locations across the state, culminating at the end of April. I encourage you to attend, if you’re able. Once the draft report is finished this summer, we will post it for public comment to provide another opportunity for input before delivering the final assessment to the legislature.

To learn more about the TWDB’s State Flood Assessment, schedule, and ways to get involved, visit www.TexasFloodAssessment.com. Help us become a state that’s proud of and known for our proactive flood planning and preparedness.

Peter Lake was appointed Chairman of the TWDB There are many factors to consider when

by Governor Greg Abbott on February 22, 2018. He approaching the future of flood planning. How has served as a Board member of the TWDB since should planning efforts be organized—by city, December 2015. The TWDB's mission is to provide county, disaster district, river basin or regional water leadership, information, education and support for planning group, for example? How often should planning, financial assistance and outreach for the planning be conducted? What type of infrastructure, conservation and responsible development of water policies and technology should be put in place to for Texas. implement planning efforts, and how would Stakeholder Surveys Conferences Public Comment we prioritize projects?

Workshops/Webinars State and Federal Meetings These are some of the Ends August 3 Ends April 30 many tough questions Stakeholder Public that will need to be Outreach Review answered in order to determine the best way Jan. Feb. March April May June July Aug. Sept.

Oct. Nov. Dec. to plan for flooding in Document Review Data 2018 Texas. and Finalization th

To better inform those decisions and several others, local

rd

Assessment

Compile Datasets Review Stakeholder Input Develop Memorandums

TWDB Recommendations Final Assessment Report

Quench — March / April 2018 7

Congratulations to TRWA's Emerging Leaders

I

n 2017, TRWA launched its new professional development and networking program, TRWA Emerging Leaders, to enhance individual leadership skills and prepare participants to be active and engaged community leaders and advocates for rural water issues.

The inaugural class started with 17 participants who began the program last June and spent the subsequent nine months earning leadership development credit hours for attending live training sessions and webinars, interacting through an online forum, and completing monthly reading assignments and coaching sessions. Participants also were required to plan and execute an individual leadership project.

At RuralWaterCon in April, we announced our 12 graduates who completed the program in its entirity. They are: Jaleesa Auzenne, Executive Director of Harris County MUD #50; Helena Carroll, GIS/Capital Projects at Mustang SUD; Kyle Eppler, Assistant General Manager of Wickson Creek SUD;

Eric Haydon, Assistant Operations Manager of East Rio Hondo WSC; Morgan Massey, Customer Service/ New Accounts at Rockett SUD; Amanda Ramos, Administrative Services Manager of East Rio Hondo WSC; Robert Rodriguez, Operations Manager of North Alamo WSC; Johnny Rudisill, General Manager of Nevada SUD; Daniel Smith, General Manager of Bandera FWSD #1 and The Oaks WSC; Karen Theiss, Office Manager of Wickson Creek SUD; Markey Thomas, Operator at Walker County SUD; and Rachel Webb, General Manager at South Rains SUD. We will feature articles on our Emerging Leaders and their individual projects throughout the year in Quench, the first appearing on page 10 of this issue!

We will begin accepting applications for our 2019-20 class this winter. You can reach out to our Association staff by calling the office at 512-472-8591 or emailing leadership@trwa.org if you are interested in participating.

TRWA to Produce Consumer Magazine in 2018

T

RWA is developing a new service for members that would provide a direct-to-consumer magazine for participating utilities. This magazine would be used to communicate with and educate utility customers with the goals of building public support for the local water utility and for the industry as a whole. The model would be similar to the electric coop magazine but for the water industry.

Subscribing systems could choose from a standard eight-page version with universal content, or a customized 12-page version that would include universal content plus four additional customized pages with system content and branding.

We have estimated production costs to be approximately $0.79 per piece (utility customer) for the standard version and $0.99 per piece for the customized version. This includes production, mailing and handling costs. All content would be driven by an editorial board comprised of a representative of each subscribing system and key 8

Quench — March / April 2018

Association staff, and chaired by the TRWA Deputy Executive Director. Editing, arrangement, design, assembly and mailing would be conducted in-house by the TRWA Communications Department.

The TRWA Board has approved us to offer this service to our members if we can get enough commitments to make it financially feasible for us to do so. Although we have received a lot interest thus far, we need firm commitments from systems in order to move forward.

Our Communications team is currently building a list of systems that have committed to subscribe to this new service. If we receive enough commitments

by July 31, 2018, we plan to launch this publication in the third quarter of 2018. Interested systems may submit a commitment form by visiting www.trwa.org/ consumer. If you have questions or would like to see a sample, please contact the Communications Department at: editor@TRWA.org or by calling 512472-8591.

Quench — March / April 2018 9

South Rains SUD Conducts Fundraiser to Support Rural Water

By Rachel Webb, General Manager, South Rains Special Utility District

S

outh Rains Special Utility District was proud to participate in the “Salvage Your Scrap” campaign, a fundraising campaign in support of the Texas Rural Water Foundation’s mission to serve all Texas rural water and wastewater utilities.

Under Salvage Your Scrap, systems are called upon to gather all their scrap metal and recycle it locally, then donate the proceeds to TRWF. Funds gathered through Salvage Your Scrap allow the Foundation to: • • •

Support rural students and water personnel’s education through the Student and Professional Scholarship Programs Train and place veterans into new careers in the water and wastewater industry through the Veteran Employment Program Continue to expand programming to further empower rural water and wastewater utilities throughout the state.

South Rains SUD held this fundraising campaign at their office from September 25 through September 30, 2017. People were able to bring their unwanted and unused scrap metal to donate during that time. There were several people who were affected by the tornadoes in April 2017 and still had debris needing to be cleaned up. Most people did not think taking a small load of scrap metal to the scrapyard was worth the time and effort, but when 10

Quench — March / April 2018

they found out they could donate it to a worthwhile program they were excited. With help from their loyal customers, South Rains SUD was able to take six loads to the scrapyard and donate the proceeds of $1,281.35 to TRWF. South Rains General Manager Rachel Webb said, “I am very pleased with the turnout and contributions made by our great customers. We have received a lot of positive feedback and plan to make this an annual event.”

South Rains spread the word about their program by publishing a flyer that was posted at area businesses, sent out with their annual newsletter to all their customers, published it on the district’s website, posted a notice in local newspaper and had the local Chamber of Commerce send out a notice with their weekly emails. South Rains SUD had a yard sign made to put at the edge of their driveway to show people where to go to donate. One of their board members donated a trailer to use so that the district’s trailer was not tied up and hindering them from fulfilling their normal duties. Each person who donated was presented with a South Rains goody bag as a way to say thank you for contributing to the cause. There were a variety of items donated which included old lawnmowers, tillers, old farming equipment, old tin, metal gates, water heaters, horseshoes, car parts, lawnmower blades, washers, dryers, barbed wire, antenna towers and so much more. The district’s field crew were able to use the backhoe to unload anything that was too heavy to pick up by hand. This program also provided a way for the district to clean up around their shop and get rid of unused parts that collect dust. Several meters were broken down and the brass from this was donated to the cause as well.

There have been several customers that have called South Rains recently, asking when they are going to do this again. Plans are already in the works for this year’s drive and preparing how to get the word out to even more people.

Webb has been delighted with the positive feedback received from customers and community members. “I see this as great community outreach program. We get to help clean up our community and

donate to a great cause at the same time. It’s a winwin situation,” she said.

Webb led the system’s participation in the fundraising campaign as part of TRWA’s new leadership development program, TRWA Emerging Leaders. As part of the program, each participant was expected to lead a community project in support of their individual development and the rural water industry. Webb graduated the program in April 2018 at RuralWaterCon in Fort Worth.

Name of Project: Montgomery Mud Location: Texas Customer: Schier Construction

“I would like to thank the TRWA for the opportunity to be involved with the Emerging Leaders Program, which has empowered me to get more involved with my community by providing programs like this,” said Webb.

For more information of Salvage Your Scrap or any of the Foundation’s programs, visit www. texasrwf.org or email foundation@texasrwf.org. For more information on TRWA’s Emerging Leaders Program, visit www.trwa.org or email leadership@ trwa.org.

Name of Project: Azle Avenue Location: Texas Customer: City of Dallas

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Technial Assistance Corner: Irrigation Systems and Backflow Prevention — What is the Correct Call?

By Bruce Pearson, Instructor, Texas Rural Water Association

F

or years now, the debate concerning irrigation systems and backflow prevention measures has continued among industry professionals and the public at large. Regulatory and recognized guidance documents at the federal, state and local levels have addressed this issue on numerous occasions. To understand this ongoing discussion, a few pertinent facts must be explored from the historical, regulatory and industry standard perspective.

A Bit of History Decades ago, dating back to the 1960s, some irrigators in Texas recognized the need for backflow preventers on the systems they were installing at the time. One system in Central Texas was found to have a “hand-made” type of Atmospheric Vacuum Breaker on a system that was installed in 1961. This device consisted of a dual swing check installed backward holding against pressure from the water source. Downstream of the dual swing check was a riser above ground that vented to atmosphere. The principle that it was intended to operate under was one similar to the Atmospheric Vacuum Breaker, meaning in a backflow condition the air would be taken in to the piping system, preventing the backflow of water into the potable water supply. Later some professionals began to install spring-loaded check valves to prevent “backflow.”

Regulatory From the regulatory perspective, several water purveyors across Texas began producing Backflow Prevention Program Manuals in the mid to late 1970s and into the 1980s. The Uniform Plumbing Code has addressed irrigation systems and backflow prevention since the 1970s. This code, and more recently the International Plumbing Code, have long designated an irrigation system as “health" hazard, meaning there's a risk to the public and/or the customer if a backflow incident occurs.

The Texas Commission on Environmental Quality (TCEQ) first incorporated the call for backflow preventers on certain potable water services over 12

Quench — March / April 2018

20 years ago when they produced a list of certain facilities with common hazards that may be found connected to public water systems. The list, which includes the assessment of the hazard and its required assembly, can be found in Title 30 Chapter 290 Subchapter D Appendix F, “Assessment of Hazards and Selection of Assemblies” and is in support of Title 30 Chapter 290 Water Distribution (h) and (B). This list is broken up into two types of considerations. One is “Premises Isolation” (Containment) and the other is “Internal Protection.”

Premises Isolation (Containment) dictates that a backflow preventer be installed at the meter and before any tap or “T” off of the supply line to the facility. Internal Protection dictates that a backflow preventer be installed on the branch of the supply line leading to the equipment in question.

Irrigation systems can be found in the “Internal Protection” section, and have a "non-health" designation unless they have chemical additives, in which case a “health” designation is given to the system.

Industry Standards At the national level, the American Water Works Association (AWWA) designates an irrigation system as a “health” hazard in its 3rd Edition AWWA M-14 Manual, 2004.

An independent organization highly recognized in the cross connection and backflow prevention industry is the University of Southern California (USC) Foundation for Cross Connection Control and Hydraulic Research. This organization has long produced their “Manual of Cross Connection Control.” This document’s latest 10th edition is recognized by the TCEQ as a training manual for the instruction of 40-hour Backflow Testing Classes. The 40-hour course is a prerequisite for testing to obtain a backflow testing license and obtain continuing education credits from our state agency as well.

USC, for many years, has defined an irrigation system as “health” or “hazard.”

Health or Non-Health

A “health” or “non-health” designation of an irrigation system dictates the type of backflow preventer that can be installed on that system. In a “health” designation, the TCEQ states that a Reduced Pressure Principle Backflow Prevention Assembly (RPBA) shall be installed at the irrigation branch, or at the meter if the system has a dedicated service.

The RPBA has a “health” designation and can withstand both backpressure and backsiphonage.

This type of assembly must be tested after installation and annually by a Backflow Prevention Assembly Tester recognized by the TCEQ. In a “non-health” designation, the TCEQ states in the Appendix that a Double Check Valve Assembly (DCVA), an Atmospheric Vacuum Breaker (AVB) or a Pressure Vacuum Breaker (PVB) shall be installed at the irrigation service branch or at the irrigation meter, whichever the case may be. It must be noted that the AVB and the PVB have “health” designations, but can only withstand backsiphonage and not the backpressure that could be posed by an irrigation system.

Who Makes the Call?

The local authority having jurisdiction on irrigation systems is varied based on the location and setting. In the corporate limits of a municipality,

agreements between water purveyors and plumbing inspectors dictate the authority over these systems.

Outside the municipal boundaries of a city, the authority rests solely with the water purveyor as designated by the TCEQ. The water purveyor clearly has the ultimate responsibility to protect the public health of its customers, but this responsibility is shared with plumbing inspectors licensed by the State Board of Plumbing Examiners.

Recent Developments Recently, the TCEQ has hosted stakeholder meetings around the state to gather information from industry professionals on landscape irrigation.

One of the items under consideration is to change an irrigation system's designation to “health." These meetings were held in January of this year, and an open comment period ran through February, where over 200 comments and written statements were received. We expect to know more about the decision in the fall, and the Texas Rural Water Association will update our members as we learn more.

If you have questions about this article, please contact bruce.pearson@trwa.org or call 512-4728591.

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Ask Larry

Q:

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

My understanding is that there are two types of easement forms to use for our system with our members. How do we know which one to use?

A: There are two different easement forms the United States Department of Agriculture (USDA) accepts for systems to use that give the systems the proper wording for protecting the system’s interests and providing for the land owner's protection. Form 442-8 is the specific location easement form, which allows a system and land owner to designate the exact location of a future water line. Normally, there would be a plat, map or drawing to show the exact position of this new easement and subsequent water and/or sewer main. Form 442-9 is the general easement form that does not designate which part of the land the easement will be located on, but rather leaves the exact location up to the system to designate. There are occasions when a system will use both types of easements on the same line improvement project, based on the property owner’s needs.

Q: It seems that several years ago, it may have been the Texas Natural Resource Conservation Commission (TNRCC) then, the state gave some latitude for certification experience when operators worked for small systems that had both water and wastewater.

Do you know what the prevailing attitude on the experience requirement is with TCEQ? A: In the past, TCEQ (previously TNRCC) did tend to lump all work experience together and individuals were able to use their 8 years of experience to be able to obtain both an “A” water and “A” wastewater license. However, more recently, the licensing section at TCEQ has been carefully checking the experience of applicants and questioning them about how much time they spent doing specific work tasks.

The current methodology is more along the following: If an operator is seeking a “B” water and “B” wastewater license, then they would have to show or document that they have obtained 5 years of experience working on water treatment and operations, plus 5 or more years working on 14

Quench — March / April 2018

wastewater-related job duties. If they are seeking a distribution or collection license, then those 10 years of total experience must have been spent working in the distribution and collection systems. Yes, in the old days, once a person worked 2 years for a “C,” 5 years for a “B,” or 8 years for an “A” license, then they would have been qualified to test for both a water and a wastewater license, but under the new policies this is now not acceptable.

If you go to the TCEQ website at www.tceq.texas. gov/licensing and look for the form “Water Operator Licensing Program Application Supplement,” it shows exactly how the TCEQ determines whether a person has the necessary experience to qualify to test for another license or not.

Q: An overhead pipe froze and burst, and water was running out of my office this morning when I went to work. The water was about 4 – 6 inches deep, the ceiling and insulation were falling in and a lot of records and equipment may have been damaged. I brought the office computer to my house to keep up with year-end reports, etc. Is this allowable? Do we need to notify TCEQ? Our customers? Are there any other requirements we should be aware of?

A: There are no regulations which would prohibit you from keeping the computer at your home. Many systems operating today don’t have a public office building and all their records and business are taken care of at the bookkeeper’s or office manager’s home. As for advice on what to do in this situation, the first thing is to put up a sign at the office stating the office is closed for repairs and state where or how customers can still pay bills, request water service, and any other of the day-to-day business.

A phone number and email address on the sign will help direct your customers on how to contact the system. Once you have discussed this with the board, it may be that instead of having them meet at your home, an alternate location can be arranged.

Maybe the local church, community center or location could work as an alternate office location until another location is secured. The board may want to consider purchasing a portable building as the temporary office.

During these next few days, someone will have to go into the office and recover all the board minutes, tariff, personnel policies, contracts, records, filing cabinets, maps, and other system records and equipment. This recovered material will need to be cleaned and dried, if possible, for future use. The longer these paper records remain wet, the less likely they can be salvaged.

Try to recover or order additional billing cards for getting the bills sent out as regularly as possible.

It may be that another water system could be contracted to “print the bills” for you this month if the printer was damaged during this water break.

The board should call a special meeting to discuss how to get the repairs started and what place to secure as a temporary location.

Someone will need to contact the TCEQ to see if there are any required records that need to be sent to TCEQ like the Disinfectant Level Quarterly Operating Report or other sample and monitoring records. It will also be necessary to check to see if the long-term records required by the TCEQ to be maintained at the system office are still usable. If these records are unrecoverable, then the TCEQ will need to be notified to check if they have any past records that can be sent to you.

Q: We ran across something unexpected yesterday. We received a call about a homeowner with a busted pipe and how he couldn’t shut off his water. The property owner had water overflowing at his barn. When we arrived, we found a buried flush valve that had been re-routed to the barn. The property is served from the opposite side of the county road. It's not a dead end, so I didn't know there was even a flush there. We just cut the elbow off and jerked out a section of pipe headed to the barn. I plan to dig up both sides of the road and use the water line as a carrier pipe for a 3/4" poly tube to the single meter so there isn't anything there that can be tapped into. Can we charge this customer for doing this and all the time spent messing with it yesterday? I don't have any idea how long this situation has existed, but it has to be around 20 years. The customer acted as if they had no knowledge of this line to the barn.

assembly. It appears to me that the intent was to steal water and not get caught because they buried the flush valve at some time in the past.

Did this customer suggest there was a valve on the other side of the road? How did he or anyone know where the illegal line was connected to the system with it being buried? If either of these questions were answered by this customer, that could be evidence of wrong-doing.

Regardless of whether the system wants to file charges for theft of the water and the illegal connection, the system can at least charge for the labor, parts, time to find and make repairs, and remove the illegal connection(s) to the system. This expense would never have happened if there had not been an illegal connection and subsequent theft of water by someone tying onto the flush valve and then burying it to keep it a secret from the system.

You may also want to investigate when the line across the road was extended and why the flush valve was left in place. Did the previous manager, operator or a contractor do this connection at the property owner’s request in the past? You may want to do some digging to find out what year a water main was extended to serve other customers down that road.

It is easier to bill this customer for the actual time spent to find the source of the illegal tap, labor, equipment and parts, as well as any remediation necessary to keep this theft from continuing. System staff should write down separate accounts of what they witnessed throughout this whole ordeal.

The bottom line is that the system will need to document how much time was spent and all other expenses and send a bill, then hope they pay it.

The board may want to estimate the water loss and/or theft. If they elect not to press charges for stolen water, then use that action as leverage to encourage this customer to pay this current bill.

If you have a technical question you would like answered, please email larry.bell@trwa.org.

A: You are correct in that this property owner is responsible for actions that occur on their property.

It would be very hard to prove or document how much water they’ve stolen over the years or who actually installed this line and buried the flush valve Quench — March / April 2018 15

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Meet the Winners of the TRWA Awards of Excellence

T

he TRWA Awards of Excellence program is designed to honor excellence within our membership of rural utilities across Texas.

Our individual awards are meant to recognize the shining stars of our member utilities, and this year’s system-wide awards are designed to recognized both small and large systems for their efforts in system improvement. We announced our winners at RuralWaterCon in early April, and presented our winners with their plaques and checks, and we are proud to now be able to share their stories with you!

Excellence in Administration Barbara Cowie – Office Manager, Bolivar Peninsula SUD Barbara was nominated by Jo Ball, General Manager of Bolivar Peninsula SUD, where Barbara has worked for 26 years. Barbara serves as Office Manager for Bolivar Peninsula SUD, where she manages a small staff and is constantly working to ensure her office runs efficiently. According to Ball, Cowie “has been an outstanding employee who’s always one of the first to arrive and most times last one to leave.” In fact, their contracted audit firm says due to Barbara’s accounting abilities, their district is one of the easiest firms they audit because everything is exactly where it belongs.

Barbara is always eager to learn new things and attend various classes to improve her skills, and she encourages her staff to do the same. She is very active in her community and her church and is

Left to right: TRWA Immediate Past President Pat Allen, Barbara Cowie, TRWA Executive Director Lara Zent, TRWA President Brian Macmanus and TRWA Board Director Kevin Spence.

always eager to help any way she can at work or in her community. Mrs. Cowie loves her grandchildren, spending time with them and attending their school activities. Congratulations to Barbara on her welldeserved achievement!

We also extend a special thank you to Rural Water Impact/Municipal Impact for sponsoring this award!

Excellence in Operations John Crow – Operator, Forney Lake WSC John was nominated by Steven Davis, Board Director for Forney Lake WSC. John has been at Forney Lake WSC for 11 years, starting on a part-time basis in 2006, and evolving to a full-time employee in 2007. From the beginning he has strived to learn the system and its infrastructure as well as state laws and requirements. As the testing and reporting rules have multiplied he has steadily studied and worked to keep abreast of these and to implement them into his work routine. He became the sole system operator in early 2017, which has increased his work load significantly, resulting in longer hours and near 24/7 availability and response to problems and issues. He also must interact with and accommodate developers, engineers and contractors much of the time as FLWSC is in a rapidly growing area. He has performed his duties with much professionalism and diligence.

His dedication was recently exemplified by his beyond the call response to a weather-related emergency in which lightning struck the station at the systems elevated storage tower during a violent storm late one night. After trying to access the site performance remotely, he traveled to the location and discovered that the auxiliary power generating system was not operable and the commercial power was also out. He contacted the generator technical support and the power company, but issues were multiplied by the need to refill the water tower. An electrical explosion and fire in the control house further contributed to the complications in filling the tower.

Because of his tireless and imaginative actions, there was no interruption of water to the 1000+ homes adjacent to the tower or system-wide as people awakened to the day's needs and schedules.

Continued on page 18 Quench — March / April 2018 17

Continued from page 17

Award winner John Crow's nominator Steven Davis, Forney Lake WSC's Board Director, accepts his award on his behalf.

Roark Rohe accepts his award for Excellence in System Management at RuralWaterCon in April.

John has since developed plans and procedures to improve readiness and capacity to safely attend to future situations that might occur, and obtained the needed supplies and storage components to quickly and safely respond to them.

device and knew that with a little work, water bills could be posted, calculated, sorted and printed on this machine. The little water system became the first in the area to computerize billing.

“John is arguably one of the company's greatest assets and all the while remains at all times approachable and diligent in keeping customers, suppliers, legal and other requirements satisfied to the best of his ability. He is tasked with the unending testing, meter reading, leaks, maintaining and upkeep of storage and pumping facilities and responding to various onsite customer issues,” said Davis in his nomination.

John is highly deserving of TRWA's attention and this significant award and recognition, congratulations!

Excellence in System Management Roark Rohe – Manager, Phelps SUD Long ago in East Texas, Roark Rohe was concerned about his future. Although he had graduated from college following his term of enlistment and time in Vietnam, his cattle did not show much respect for his degree in animal science.

Money was tight, and he and his wife were expecting their first child in the spring. A Christmas miracle appeared in the form of a local part-time job. Putting a shovel and meter tool in the back of his truck, he went to work for Phelps SUD. For several years, he read the meters and he and his wife spent several days each month logging the readings, sorting from one form to another, calculating the usage, posting the ledgers and finally writing and mailing the bills — all by hand.

In the early 80s, the computer was developed for home use. He immediately saw the value in this 18

Quench — March / April 2018

Before long, he installed remote read meters a few at a time, through careful budgeting over a period of several years. Always seeking innovation, he found a telemetry system to help him monitor the wells and provide constant oversight, and a commercial billing program was added. He spearheaded the conversion from a Water Supply Corporation to a Special Utility District. Through frequent training, he was able to instantly answer board members' questions on distribution systems production, operations or issues, public meeting, finance, management practices and election laws, as well as fostering their growth and engagement within the industry.

As the water system grew, so did the responsibilities and requirements by government entities. After operating from an uninsulated construction trailer in the back yard for 35 years, he built an office at his home for the water system and began hiring staff as needed, although Rohe is still the only employee of the water system.

His customers will tell you he is fair and honest with them and treats them all with respect. He is constantly seeking new and innovative ways to improve service and personally oversees all aspects of the water system. He frequently assists other systems with billing and service advice and his water system has consistently been rated a Superior Water System.

It was January 1, 1978 when Roark Rohe was hired to be the "water man" at Phelps Water Supply.

This January marked the beginning of his 40th year as manager of what is now Phelps Special Utility

District. His efforts to constantly improve systems, develop innovative ideas in management and his total dedication to the job have earned Roark this well-deserved recognition.

Excellence in System Improvement, Small System (1,500 or fewer connections) View-Caps WSC

Acquisition (SCADA) system, three other pump stations and an upsized 2.1 mile line. Additionally, View-Caps replaced the residential water meters with electronic lead-free meters, developed a more userfriendly website and relocated their administration office to become more visible within the community.

Congratulations to View-Caps WSC for taking a proactive stance in meeting their future needs.

We would like to thank Core & Main for sponsoring this award!

Excellence in System Improvement, Large System (more than 1,500 connections) Canyon Regional Water Authority Canyon Regional Water Authority (CRWA) exemplifies how regional water entities can successfully work together to share capital costs, share risks, improve operating efficiency and share water resources to meet their current and future water needs.

TRWA and Core & Main are proud to present an Excellence in System Improvement award to View-Caps WSC.

View-Caps WSC was a quiet, routine water system, but when a Cattle Feeders Association in their service area closed their facility, it created a growing interest in two of their three communities.

As developments and the pace of growth became quicker, View-Caps realized the need to make the system operate more effectively and efficiently to make labor on the facilities and in the office more productive.

“We needed to make the system self-controlled and better monitored, to reduce the labor effort, make office billing mostly self-completing, and simply prepare for future growth,” said Dennis Reiling, former View-Caps WSC Board President, who nominated the system for this award. “We needed to plan where we needed to be in the future and make ourselves more noticeable.”

Plans were made with consideration of the military airport adjacent to us and the expected growth areas. Long range plans were developed, and the short-range plans supported the larger picture.

Efforts to improve included an engineering study of the plans, preparation construction steps, updated requirements, upgraded equipment and the birth of a new construction project: a strong new pump station with three heavy capacity pumps and a 125,000-gallon ground storage tank.

This project included their first ever eightinch water line, a Supervisory Control and Data

Providing wholesale treated water to one of the fastest growing rural areas in the country has been the mission of CRWA since its inception in 1989.

Today, CRWA’s 11 members and customers use water from CRWA as means to provide 20,000 acre feet of water, serving an estimated 150,000 citizens in a 1,700-square mile area within the I-35 corridor. The initial shared vision of four small rural water systems resulted in the creation of CRWA as a “Special District” by the State of Texas in 1989.

This diverse supply and the first regional cooperation from water supply entities within the I-35 corridor, encapsulates the fundamental vision of CRWA. One of the first challenges faced by each individual entity, prior to the creation of CRWA, was the 1981 Edwards Aquifer Act that lead to discussions of the original four members to work together to develop alternative water supplies. As growth in the I-35 corridor accelerated in the 1990s and into the 2000s, CRWA faced and conquered additional challenges: securing additional water supplies for its current membership and obtaining a non-surface water supply.

CRWA eventually developed a groundwater supply project that would bring additional supplies to the region through a 20-mile long water transmission main and join the existing surface water transmission line, resulting in the ability to blend supplies and provide redundancy. As demand for additional supplies continued to grow, CRWA expanded Wells Ranch into its second phase (Phase 2) and obtained Continued on page 20 Quench — March / April 2018 19

Continued from page 19

TRWA and CoBank are proud to present an Excellence in System Improvement award to the Canyon Regional Water Authority.

additional permitted water. To make this expansion more affordable for CRWA, CRWA took advantage of the newly created State Water Implementation Fund for Texas (SWIFT) and became the first entity within Region L to seek and obtain SWIFT funding in the amount of $42 million.

As CRWA began to introduce two different water supplies with two different disinfectants, chloramines and chlorine, the were aware of the pending challenge. CRWA implemented the first project in the region to utilize ozone to reduce the potential for disinfection by-product formation in its long water transmission mains.

While the future holds more challenges for everyone in the water industry, CRWA story illustrates how having a shared vision and regional group of individuals can identify challenges and meet those challenges by joining in regional water supply projects that lower capital cost, share risk, improve operating efficiency and enable sharing of water resources to meet the water needs of a thirsty Texas.

Congratulations to CRWA for their Excellence in System Improvement – Large System award! Special thank you to CoBank for sponsoring this award. *** A big thank you to everyone who helped spread the word about this program and even went so far as to nominate outstanding individuals and systems.

Without you, these programs would not be possible.

The nomination period for the 2019 awards will open in August! More information can be found at www. trwa.org.

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Quench — March / April 2018

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RuralWaterCon 2018 Photo Recap

Before RuralWaterCon officially kicked off, teams were invited to participate in a shooting clays tournament in support of the Texas Rural Water PAC.

The convention officially began with a Welcome Reception on Wednesday evening, complete with appetizers, snacks and a live auction supporting the Texas Rural Water PAC.

College Mound SUD enjoys the Welcome Reception on Wednesday, April 4.

NRWA Treasurer Glen Womack accepts a Texas-sized gift from TRWA leadership at the opening general session.

TRWA staff visit with the Mayberry Deputy, who provided entertainment at the President's Banquet on the evening of Thursday, April 5.

TRWA Board Director Kent Watson accepts a token of our appreciation for 30 years of service on the TRWA Board of Directors during his luncheon on April 6.

To see more photos from this event, visit our Facebook page at www.facebook.com/ TexasRuralWaterAssn.

Quench — March / April 2018 21

From the Hole Tales from the road by Michael Beadnell, Instructor for Texas Rural Water Association

S

hady Grove Special Utility District water comes from reservoirs on the north side of Greenville and from Lake Tawakoni. Shady Grove retails the water to over 450 residents and businesses east of Greenville. Established in 1964, they are a non-profit, member-owned corporation.

Fully embracing the conveniences of modern technology and keeping up with the growing needs of customers, updates were done recently on the pump station. In 2012, they tore down the old building that used to be a church and built a new one followed by a top-notch maintenance building. Their service department maintains around 45 miles of water lines in approximately 49 square miles.

Located between state highway 183 and interstate highway 30, nestled under the shade of the tall oaks, I arrived to find a fully equipped classroom.

The General Manager Jeremy Whitson greeted me and even started helping me set up tables.

Just about the time I started to get a feeling that Shady Grove was a laid-back place to work, the emergencies started pouring in, and I realized things weren’t any different here than any other water utility that I’ve been to on a Monday. I told Jeremy not to worry, it wasn’t my first rodeo.

introductions and goals — and then we delved into lecture, book work and demonstrations. There were 20 students in class, and not everyone learns and comprehends things the same way. To some, you just explain it once and they get it; others need pictures to be drawn. Valve and Hydrant Maintenance is a required course for the “B” water distribution license.

Prior to my career as a wastewater and water instructor, I possessed the distribution license for several years before going to the army base Fort Hood where I earned my “A” license. When it comes to testing, the best advice I can give is, “Always rely on the best bet and comprehend what it takes to be a good operator.” By close of business Tuesday night, I had taken the class through the types of valve and hydrant maintenance programs, inspections and classifying valves by function and by design.

Wednesday, we broke the class into four small teams according to their experience with valves for some friendly competition. The teams were tasked to come up with a team name, a team leader and the tasks each would perform in this exercise. I went over the list of tasks each would perform to ensure

I finished setting up all the tables and chairs, put out the Valve and Hydrant Manuals and registration forms and filled the baskets with the usual pens, pencils, erasers, pencil sharpeners, highlighters and calculators. Getting to a host system location a day early is a good time to go over last-minute details such as commandeering equipment you don’t have and making sure there is digital compatibility.

Valve and Hydrant Maintenance doesn’t have a lot of math, but to calculate force and understand the fire hydrant formula, a basic understanding of area and pressure need to be revisited. My white board is just a sheet of shower board cut to fit the bottom of the truck bed, but it works well and is just the right size for a class to get a visual subject understanding.

I arrived back to the training room Tuesday morning around 7:30 am and the room was open, coffee was made and Mr. Whitson had snacks laid out. Class started in the usual way — paperwork, 22

Quench — March / April 2018

Students get hands-on training during the Valve and Hydrant Maintenance class taught in early March.

everyone would get an opportunity to be involved with some type of hands-on procedure. I explained the first task, which was to disassemble change stems, reassemble and torque to specs or to rebuild the resilient wedge gate valve. The second task was to assemble a 2� gate valve out of the box of bits and pieces. The tasks were done behind doors so none of the other teams could get an advantage over another.

Each team filled out a risk assessment, documented the tasks and tools needed and listed who was performing what duties. Finally, I issued a quiz on valves and just in case any of the teams started to get bored, they were expected to work on chapter 5 together.

The only casualties in the last hands-on class I taught were 10 broken bolts. It was in a very large municipality and the city was equipped with a complete machine shop, so broken bolts were a quick fix. However, Shady Grove is a small SUD and as far as I could tell we didn't have backup machine parts. To ensure there were no broken bolt casualties, I gave special instruction on the proper use of the foot pound torque wrench.

The teams were graded on how well they worked together, how they performed on the quiz, how well they filled out the risk assessment and how quickly they assembled and rebuilt the valves. For the first time ever in my experience teaching this class, there was a tie between third place and honorable mention.

More information on our training courses, including our current course schedule, can be found at www.trwa.org. If you are interested in hosting a TRWA class, please email training@trwa.org or call 512-428-5754.

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I took the class through chapter 5, Backflow Prevention Devices, then released the class with a field exercise homework assignment to find a backflow prevention device and explain its function, limitations and purpose.

Thursday morning, the class took turns sharing their homework. There were some fascinating examples of cross-connections, and sadly, one student got theirs eaten by the dog.

We spent the rest of the day on chapter 6, which focuses on fire hydrants, including a brief history of the hydrant, its purpose, different types of hydrants, the internal and external parts, and installation and operation.

At the end of the day, I issued, corrected and went over a final exam for students to keep and use as a study guide on what a good operator needs to know about valves and hydrant maintenance.

Shady Grove SUD is a wonderful place to teach.

Thank you to Mr. Whitson and his team for being good hosts!

Quench — March / April 2018 23

Strategies for Texas Utilities Facing Decertification of CCN Service Areas by Cities and Developers

By Paul Terrill, III and Shan Rutherford, Terrill & Waldrop *Note from the editor: In lieu of our regular "Keep it Legal" column, this issue of Quench features a contributed article from attorneys Paul Terrill and Shan Rutherford offering an in-depth look at CCN decertification issues.

T

he Problem: Steady Erosion of Rural Water Utility Service Areas

The Texas Legislature and the Public Utility Commission of Texas (PUC) have made it increasingly easy for landowners (primarily developers) and municipalities to remove or “decertify” portions of a water or sewer utility’s certificate of public convenience and necessity (CCN) while providing no compensation in return. Where holding a CCN has traditionally provided protection against developer and municipal encroachment in return for imposing a statutory obligation to provide “continuous and adequate service” to retail customers within the CCN holder’s service area, rural water utilities are now facing the loss of their most valuable, high-growth areas due to these changes in “decertification” processes. These “decertification” processes are set out in Chapter 13 of the Texas Water Code at sections 13.254 (landowners/ developers) and 13.255 (municipalities).

For many years, decertification by landowners was limited to situations where the CCN holder: (1) never provided or was incapable of providing service to an area; (2) provided written consent to amendment of its service area; or (3) failed to timely file a cease and desist action upon discovery that another utility was providing service in the area. In 2005, the Legislature began whittling away at CCN protection with the introduction of the “expedited release” process. Under that process, a landowner of 50 acres not currently receiving service could file a petition for release of the land so another retail public utility could provide service. The expedited release process required the landowner to request service from the current CCN holder and, after 90 days, to file an expedited release application if the CCN holder either refused to serve, was not capable of serving within the landowner’s requested timeline, 24

Quench — March / April 2018

or imposed unreasonable costs that were not directly allocable to the service to be provided to the landowner. The 2005 legislation required a finding that the alternative provider had the capability to provide service to meet the landowner’s needs within the same specified time frame.

In 2011, facing a developer lobby that did not view the 2005 expedited release amendments as having gone far enough, the Legislature further eroded CCN service area protection. First, for expedited release, the alternative service provider requirements were reduced, and the timeline for granting an expedited release was also shortened. Second, the 2011 legislation created a new “streamlined expedited release” procedure for landowners holding at least 25 acres who are “not receiving water or sewer service” and are located in one of 33 suburban counties. This streamlined process eliminated the requirements under the 2005 expedited release process that the landowner request service from the CCN holder and secure an alternative service provider. The law also prohibits denying a streamlined expedited release on the grounds that the CCN holder is a borrower under a federal loan program, as discussed further in the next section. Third, the compensation provisions were significantly changed with the net result that the utility could rarely be compensated for the lost CCN service area.

State agency and state court decisions interpreting the decertification legislation have further accelerated the erosion of CCN service area rights by adopting a very narrow interpretation of “not receiving water or sewer service” under the streamlined expedited release processes. The PUC has also adopted an extremely narrow view of what constitutes adequate and just compensation for the decertified utility.

The Austin Court of Appeals decision in Texas General Land Office v. Crystal Clear Water Supply Corp. illustrates the narrow view adopted as to what constitutes “not receiving water or sewer service” for purpose of expedited release decertification.

The General Land Office (GLO) sought streamlined expedited release for five contiguous tracts of land,

each containing more than 25 acres, which did not contain active meters, but which were surrounded by existing utility infrastructure such as water lines and a storage tank. The GLO excluded from its request 150 acres of contiguous property it owned that had Crystal Clear WSC utility infrastructure and active meters. The court of appeals found that nothing in the streamlined expedited release provisions prohibited the GLO from seeking decertification of selected portions of its property if those portions were not “receiving water service.” In other words, despite significant utility infrastructure committed to serve the property, the court allowed the GLO to cherry pick the sections to decertify on the grounds that those portions did not have an active meter and, thus, deem those tracts as “not receiving service.”

The Austin Court of Appeals recently reached a similar conclusion in Mountain Peak Special Utility Dist. v. Public Utility Commission of Texas, where the City of Midlothian originally sought expedited release of an entire 104-acre tract and then later amended its petition to exclude a 6.7-acre piece of the tract that contained a Mountain Peak lift station. The court denied Mountain Peak’s appeal, reasoning that “[t] he existence of water lines on or near the [property] does not necessarily mean that the [property] was ‘receiving water service.’” In reaching its Crystal Clear and Mountain Peak decisions, while not expressly so stating, the Austin court effectively construed “receiving water service” very narrowly to mean only property with an active water meter.

Recent PUC decisions adopt an extremely narrow interpretation of what constitutes “property rendered useless or valueless” for purposes of identifying and valuing CCN holder property interests that will be affected by decertification. The PUC gives lip service to the Texas Supreme Court’s expansive definition of “property” which includes “everything to which is the subject of ownership…tangible or intangible, visible or invisible, real or personal.” But the PUC’s decisions exclude monetary investments in design and planning that have not resulted in active service on the specific tract subject to release.

The PUC has also determined that, in considering a claim for compensation to make the utility whole following decertification, if there is any remaining value to the CCN holder’s remaining property, then no compensation will be awarded. The PUC has adopted a definition for “tract of land” for use in expedited release cases that allows landowners to piece together multiple parcels under different prior ownership to meet the 25-acre minimum requirement.

Finally, the PUC has developed a complicated,

lengthy and expensive compensation process that has the effect of discouraging CCN holder challenges to city and landowner decertification petitions.

The practical effect of the statutory amendments to the decertification process, and PUC and court decisions interpreting those amendments, is that either a developer (who has 25 acres or more in the high-growth suburban counties) or a city (virtually anywhere in the state) that seeks to decertify the CCN holder’s service area on a tract of land on which there is no active meter will walk away with that service area at no cost. TRWA’s tracking of expedited release proceedings bears out this conclusion. As of March 12, 2018, 196 expedited release petitions have been filed with the PUC or its predecessor, the TCEQ. Of those petitions that were not withdrawn, voluntarily dismissed or remain pending, all but two were granted. One denial occurred in a case where the CCN holder submitted billing statements establishing that actual current water service was in fact being provided to the tract.

The other was denied because the petitioner failed to submit accurate mapping information.

A Solution: Federal Protection for the CCN Service Area of a Federally-indebted Utility While the PUC and state courts have uniformly favored developers and cities in decertification proceedings brought against CCN holders, federal court precedent, including very recent decisions involving Texas utilities, offer hope to rural water and sewer utilities that hold federal debt issued or backed by the United States Department of Agriculture, Rural Development (USDA – RD). Under this federal financing, a lien is placed on the service area and infrastructure of the utility. To further guarantee repayment of this federal debt, Congress enacted 7 U.S.C. §1926(b), which provides: The service provided or made available through any such association [as described in § 1926(a)] shall not be curtailed or limited by inclusion of the area served by such association within the boundaries of any municipal corporation or other public body, or by the granting of any private franchise for similar service within such area during the term of such loan...

Thus, when a utility holds federal debt under § 1926(a), the utility’s service area may not be curtailed or limited in any area to which the utility makes service available. The determination of Continued on page 26 Quench — March / April 2018 25

the Bear Creek holding that a water association’s state law duty to provide “continuous and adequate service” in its CCN area was the legal equivalent to “making service available” under § 1926(b). The North Alamo court upheld district court injunctions prohibiting the city from providing any further water service in North Alamo’s service area and specifically ordered the transition of water service from the city to North Alamo.

Continued from page 25

what constitutes “making service available” is important to understanding the applicability of federal protection. A key case in the Fifth Circuit (the federal appeals court with jurisdiction over disputes arising in Texas or involving Texas parties) explaining § 1926(b) protection is Madison v. Bear Creek Water Association. In Bear Creek, a city attempted to condemn a large portion of Bear Creek’s service Together, North Alamo and Bear Creek stand area. The Fifth Circuit determined that federal law for the propositions that a water association with a prohibited municipal condemnation of a federallyCCN and USDA debt is protected from the loss of indebted water association’s certificated service its service area and that the grant of an injunction is area, including the infrastructure assets. The court a proper remedy. Because federal law is supreme rejected the city’s argument that condemnation is not over state law, these decisions would ordinarily stop specified in § 1926(b) and found that the language state agency CCN decertifications. Yet, the PUC of § 1926(b) “indicates a congressional mandate that has continued to routinely grant expedited release local governments not encroach upon the services and municipal decertification petitions even though provided by such associations, be that encroachment the utility has USDA debt and, thus, its services are in the form of competing franchises, new or additional protected under § 1926(b). The PUC has declared permit requirements, or similar means.” The court that it is bound to follow state law which prohibits the further found that “to allow municipalities to ‘skim the PUC from considering whether the CCN holder has cream’ by annexing and condemning those parts of a federal debt. water association with the highest population density (and thus the lowest per-user cost) would undermine The PUC’s decision to ignore federal law, interested in having us as your Code Congress’s purpose of facilitating inexpensive water feel free to contact one of our combined with state court deference to PUC supplies for farmers and other rural residents and ent representatives below Updates decisions, has given rise to new federal litigation, those associations’ ability to repay their KS — Rickprotecting DiZinno and the results to date are promising. In Green 6-9000 ext.

2601 debts.” [federal] Valley Special Utility District v. City of Cibolo, the

8.5” x 5.5” Ho

TANKS — Patrick Heltsley The Bear Creek decision was reaffirmed in North 6-9000 ext. 4601

In-Service Alamo Water Supply Corp. v. City of San Juan. The Cleaning North Alamo court used even stronger language,

stating that “[t]he service area of a federally indebted water association is sacrosanct” and solidifying

Fifth Circuit re-affirmed its prior Bear Creek and North Alamo holdings that having a CCN equates to “making service available” under § 1926(b) and rejected the city’s argument that because Green NEW TANKS — Rick DiZinno Valley SUD’s USDA indebtedness was secured only ext. 2601 (270) 826-9000 by its water facilities, GreenEXISTING Valley’s TANKS — Patrick H (270) 826-9000 ext. 4601 sewer service area was unprotected by § 1926(b).

In other federal lawsuits, both Crystal Clear SUD and Green Valley SUD have achieved recent success in challenging developers, cities, and PUC decisions granting decertification. These federal court cases are based on the premise that § 1926(b) is a federal law and because the U.S. Constitution makes federal law “the supreme law of the land,” both the landowner and city attempts to decertify federally-protected CCN areas and the PUC decisions granting those decertifications are unconstitutional.

4.25” x

Code Updates

If you are interested in having us as your partner, feel free to contact one of our department representatives below

NEW TANKS — Rick DiZinno (270) 826-9000 ext. 2601 EXISTING TANKS — Patrick Heltsley (270) 826-9000 ext. 4601

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Quench — March / April 2018

In-Service Cleaning

5.5” x 4.25” Horizontal The most recent federal court

decision in the Crystal Clear SUD federal litigation represents a resounding victory for utilities seeking to enforce § 1926(b) protection against developer encroachment and the PUC’s practice of ignoring federal law and rubber-stamping expedited release petitions. On March 29, 2018, Judge Lee Yeakel granted Crystal Clear SUD’s motion for summary judgment, declaring: (1) Crystal Clear has “made service available” under § 1926(b) as the result of its obligation to serve customers in its CCN service area; (2) the PUC’s grant of the developer’s streamlined expedited release petition curtailed Crystal Clear’s right to protection of its service area in violation of § 1926(b); and, most importantly, (3) § 1926(b) preempts the Texas Water Code § 13.254 streamlined expedited release provisions. In other words, the streamlined expedited release provisions requiring the PUC to disregard whether the CCN holder has federal debt are unconstitutional because they conflict with supreme federal law. In light of these federal cases, for the first time two state district court judges in appeals of PUC grants of developers’ requests for decertification have placed those cases on hold until the federal court lawsuits have concluded.

In another recent example, McCoy WSC successfully obtained a temporary restraining order in federal court against a developer, the proposed alternate service provider city, and the PUC commissioners and officials in a streamlined expedited release petition. McCoy’s federal court actions led to the developer’s withdrawal of its petition at the PUC and a partial settlement.

Meanwhile, the PUC remains intent on granting decertification and ignoring federal law. In the City of Cibolo’s proceedings before the PUC to curtail Green Valley SUD’s sewer service area, for instance, the PUC not only expressly ignored § 1926(b), but also awarded $0.00 in compensation for the 1,694 acres removed from the CCN area. Before the state court in a similar proceeding involving Green Valley SUD, the PUC argued that no evidence could be considered outside the administrative record, even though the PUC had refused to consider the federal loan during the agency review, and further argued that state courts should ignore the Fifth Circuit’s precedent. Meanwhile, before the federal court, the PUC argued that federal courts have no jurisdiction to question the PUC’s election to ignore federal law. Judge Yeakel thoroughly rejected the PUC’s argument in his March 2018 grant of summary judgment in favor of Crystal Clear SUD.

The current disparity between Texas federal courts and state courts is also striking. The Texas Third Court of Appeals has even viewed a utility’s legallysanctioned provision of a proposal for providing service to a property as proof that the utility is not making service available to the property for § 1926(b) purposes. See Creedmoor-Maha Water Supply Corp. v. Tex. Comm’n on Envtl. Quality, 307 S.W.3d 505, 522-23 (Tex. App.—Austin 2010, no pet.). In contrast, Judge Sam Sparks, in denying the PUC’s motion to dismiss in one of Green Valley SUD’s federal lawsuits, observed both that § 1926(b) required the federally-indebted utility only to plead it possessed a CCN imposing a duty to provide service to the relevant property, and that to the extent the Texas Water Code purported to alter the PUC’s certification decisions by overriding federal law, it was unconstitutional under the Supremacy Clause.

See Green Valley Special Util. Dist. v. Walker, No. AU-17-CA-00819-SS, 2018 U.S. Dist. LEXIS 21478, at *20 n.11, *22 (W.D. Tex. Feb. 9, 2018). In Crystal Clear SUD’s federal lawsuit, Magistrate Andrew Austin was similarly circumspect regarding Texas’s current approach to § 1926(b), observing that “the PUC’s insistence that it was bound to follow the state statute’s direction to ignore the language of § 1926(b) gives the Court pause in saying that a Texas court would adequately protect Crystal Clear’s federal rights.” See Crystal Clear Special Util. Dist. v. Walker, No. 1:17-CV-254-LY, 2017 U.S. Dist.

LEXIS 190397, at *28 (W.D. Tex. Nov. 17, 2017).

Judge Yeakel’s March 2018 grant of summary judgment to Crystal Clear SUD adopted Magistrate Austin’s reasoning, finding that, just because a CCN holder may appeal a PUC decertification decision to the state courts does not mean the streamlined expedited release statute is not preempted by federal law.

None of the recent federal litigation asserting § 1926(b) protection has reached a final decision. The City of Cibolo has appealed the Green Valley Fifth Circuit decision to the U.S. Supreme Court, and other litigation remains at the federal district court level.

The March 2018 federal court grant of summary judgment to Crystal Clear SUD did not resolve all issues in that litigation, although it did resolve the most important issues by deciding as a matter of law that Crystal Clear’s § 1926(b) federal indebtedness prohibits the PUC from decertifying Crystal Clear SUD’s CCN service area. In short, these interim decisions have been very promising. Given the Continued on page 28 Quench — March / April 2018 27

Continued from page 27

strength of § 1926(b) protection of a federallyindebted utility’s service area, the Fifth Circuit’s consistent enforcement of that protection and the uniform failure of the state agency and state courts to protect rural utilities, federal debt and federal courts currently offer the best available protection for rural utilities.

Key Takeaways Recent success in federal court demonstrates that water and sewer utilities that value and want to protect their service areas ought to undertake three important steps. First, the utility must obtain a CCN covering the entire service area. While all but the smallest water supply corporations are statutorily required to hold a CCN, this is optional for special utility districts. The reasons for obtaining a CCN are twofold. Section 1926(b) protection only operates to protect from curtailment “the area served by such association.” Therefore, possessing a CCN delineates and removes any doubt regarding the area that is subject § 1926(b) protection. And importantly, under Green Valley and North Alamo, the obligation to provide service to retail customers that comes with holding a CCN is the equivalent to “providing service” or “making service available.”

Second, a utility that aims to maintain its service area must hold federal debt obtained either directly from or guaranteed by the USDA in order to benefit from the § 1926(b) federal CCN area protections. If your water or sewer utility has a system expansion or upgrade or if your utility is reaching the point where existing infrastructure needs to be replaced, your first priority should be financing those projects with USDA loans. If you have a smaller project and currently hold non-USDA debt, your board of directors should consider using the opportunity to finance the project and refinance the non-USDA debt through USDA loans.

Third, if facing decertification, bring suit in federal court for injunctive relief. Do not wait until the property has been decertified because that delay will present additional difficulties and expense related to unwinding the PUC’s actions and reinstating the decertified CCN service area. The Crystal Clear SUD, Green Valley SUD and McCoy WSC interim decisions described above indicate that the federal courts take the issue of federal protection and the supremacy of federal statutes over inconsistent state law or decisions seriously.

Finally, continue to support and actively participate 28

Quench — March / April 2018

in TRWA’s efforts to change state law. The Texas Legislature has responded to TRWA’s efforts in the last legislative session by requiring the House Natural Resources Committee to review the effectiveness of the 2011 streamlined expedited release and compensation amendments. A hearing is currently scheduled for September of this year.

If you have any questions about this article or have any legal questions you need answered, please email legal@trwa.org.

TRWA Briefs TRWA Welcomes New Board Director and Alternate Directors

T

he Texas Rural Water Association held its annual elections on April 6, 2018, in conjunction with RuralWaterCon. In addition to regular elections, TRWA held special elections in districts with alternate director vacancies, meaning seven TRWA districts had something on the ballot this year.

TRWA District Directors up for re-election this year were Delores Atkinson, Kempner WSC, for District 4; Brian Macmanus, East Rio Hondo WSC, for District 6; and Rhonda Shaw, Chalk Hill SUD, for District 14. All three races were uncontested, and each Director was re-elected to serve another threeyear term on the TRWA Board. Former District 1 Director Finley Barnett from SUN WSC did not seek re-election, so we welcome a new member to our board: Mark Gardenhire from Fort Griffin SUD. Three of the four districts with regular elections this year also had candidates for Alternate Director on the ballot. Steve Clemmer, Hamby WSC, was re-elected as Alternate Director in District 1; Steven Sanchez, North Alamo WSC, was re-elected as Alternate Director in District 6; and John Weisinger, Chalk Hill SUD, was re-elected as Alternate Director in District 14. All three races were uncontested.

There were no candidates for Alternate Director in District 4, so the seat remains vacant.

Special elections were held in districts with vacant Alternate Director seats, resulting in three additional candidates, all uncontested. We are excited to welcome these new Alternate Directors to our Board: Kyle Eppler, Wickson Creek SUD, District 10; Paula Weber, Ables Springs SUD, District 12; and Randall Baker, One Five O WSC, District 13. District 8 did not submit any candidates for Alternate Director, so the seat remains vacant.

Thank you to everyone who voted in the 2018 TRWA Elections, either by casting an absentee ballot or by sending a delegate to your district’s caucus at the annual convention. If you have questions about any of these election results, please feel free to contact us at: 512-472-8591.

Announcing the Winners of our PH2OSTREAM Contest

A

s part of a continuous effort to shine a spotlight on the past, present and future of rural water and wastewater systems, the Texas Rural Water Association and Texas Rural Water Foundation are proud to host the amateur photography contest PH2OSTREAM! PH2OSTREAM responds to a need for images from, and for, rural Texas water and wastewater. This contest gives Texans and outlet to share their experiences while bringing awareness to the role of utilities in Rural America.

Thank you to those who submitted photos into this year’s contest, providing a closer look at Texan water infrastructure, staff and scenery. We received many fantastic entries and are thrilled to share the Grand Prize and category winners listed below: Category

Name

Photo Title

Rural Texas Water

Patrick Steger

River Flow

Water Infrastructure

Emmellee Weathers

The Driving Force for Water Utilities

*Utility Workers in Action

*Caroline Salinas

*Tapping in with Great Expectations

*Grand Prize Winner (highest scoring entry): Featured on the cover of this issue!

Each category winner will receive a cash prize and the grand prize winner will also receive a matted and framed print of their photo. We thank all who entered photos. Your images of Texas water and water infrastructure greatly benefit the Association and Foundation by providing high-quality images for use in educational documents, informational handouts and other Foundation and Association materials.

Look for the other contest photos in issues of Quench throughout the year!

A

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Classified Ads Steamboat Mountain WSC General Manager Steamboat Mountain WSC in Tuscola, Texas, is currently accepting applications for the position of General Manager. Steamboat Mountain WSC is an equal opportunity employer and offers several benefits such as sick leave, 10 paid Holidays a year, vacation time and a matching 401K program.

Applicants must have a valid driver’s license and a High School or greater education. Applicants will have to pass a background check and drug test. Pay will depend on experience. Please email resumes to Richard Jones at rjonesteamboatmt@taylortel.net, or mail to: Richard Jones P.O. Box 367 Tuscola, Texas 79562

30

Quench — March / April 2018

Texas Rural Water Association Technical Assistance Specialist Immediate opening for assistance specialist for the North/Northeast Texas region. Water utility professional sought for position providing on-site technical, managerial, financial, and regulatory compliance assistance to public utilities.

Successful candidate will have considerable knowledge of federal, state, and local laws related to public water systems. This position requires extensive travel, good PR skills, computer proficiency, and attention to detail. The minimum requirement for this position is a Class B Water License. Surface water license preferred but not required. Wastewater license also a plus. 30 hours or less per week. Compensation based on experience.

How to Apply / Contact Email resume to Environmental Services Director: Jason.Knobloch@trwa.org

Plan Ahead CONFERENCES: June 7-8, 2018

Office Professionals Conference, Westin San Antonio Riverwalk

July 11-12, 2018

Technical and Training Conference, San Luis Resort and Galveston Island Convention Center

October 3-4, 2018

Fall Management and Districts Conferences, Hilton Garden Inn South Padre Island

November 7-8, 2018

Fall Management Conference, Embassy Suites Dallas-Frisco

OPERATOR TRAINING COURSES: Water Credit Courses

Basic Water Works Operations: San Antonio, May 8-10  Lorena, May 22 -24 Water Distribution: San Antonio, May 22-24  Harlingen, June 12-14 Water Sampling and Field Analysis: San Antonio, June 19 Groundwater Production: San Antonio, June 12-14

Water and Wastewater Credit Courses

Chlorinator Systems and Chemical Handling: Coldspring, May 8-10 Chlorine Use, Handling, Safety SCBA: San Antonio, June 20 Customer Service Inspections: Brownwood, May 1-2  Lorena, June 19-20  Galveston, July 9-10 Pump and Motor Maintenance: San Antonio, July 24-26 Utility Safety: Mesquite, May 30-June1  Mabank, June 27-29 Utility Calculations: San Antonio, June 5-7 Utility Management: Galveston, July 9-11  San Antonio, July 17-19

Wastewater Credit Courses

Basic Wastewater: Harlingen, May 1-3 Wastewater Laboratory: San Antonio, June 26-28 Wastewater Treatment: San Antonio, May 1-3  Harlingen, May 23-25

Public Funds Information Act Training Initial and Renewal: Galveston, July 10

Advertiser Index

AIA Insurance Agency........................................... Page 6 Allied Tank Service........................................................29 Childress Engineers......................................................30 Chlorinators Incorporated............................................23 CoBank...........................................................................13 Daniel & Brown, Inc....................................................... 11 DN Tanks........................................................................28 HRM Land Acquisition Solutions.................................20 J.F. Fontaine & Associates...........................................20 KSA Engineers...............................................................16 Maguire Iron...................................................................30 Pittsburg Tank & Tower Maintenance Co., Inc............26 Preload, LLC..................................................................16 RG3 Meters................................................................9, 16 Russell Drilling Co., Inc................................................16 Schaumburg & Polk, Inc...............................................20 Smith Pump Co., Inc......................................................28 Tank Connection............................................................23 Texas Aquastore............................................................ 11 Quench — March / April 2018 31

1616 Rio Grande| Austin, TX 78701-1122 Telephone: (512) 472-8591 | Fax: (512) 472-5186 www.trwa.org