In Texas, a City may or may not be the exclusive provider of water or sewer services within its corporate boundaries. Water supply corporations and sewer corporations have vast areas within their certificates of convenience and necessity over which they have the exclusive right to provide these services. These areas include, in particular, certain areas within the City’s corporate boundaries.
The City does not have the authority to regulate water rates of the Military Highway Water Supply Corporation or the North Alamo Water Supply Corporation, which are “retail public utilities” along with the City. However, under Section 13.042 of the Texas Water Code, the Texas Natural Resources Conservation Commission has no “power or jurisdiction” over a municipality that regulates land and supervises water and sewer utilities within its corporate boundaries except as provided by this Code. What does this mean? It is the City’s view that subsection 13.042(f) expressly provides no intention to withdraw the City’s jurisdiction over “land regulation.” It would appear that land regulation continues within the exclusive power of the City and to that extent, it will have indirect power to set up reasonable standards over land regulation, including the size and capacity of water and sewer lines by adopting regulations governing land development. Therefore, while the City may not control the rate authority for a water supply corporation, it can prevent development of land which does not comply with local subdivision regulations.
(Ordinance 06-06 adopted 9/26/06)
The following definitions are applicable to this regulation only.
Facilities:
All the plant and equipment of a utility, including all tangible and intangible real and personal property without limitation, and any and all means and instrumentalities in any manner owned, operated, leased, licensed, used, controlled, furnished, or supplied for, by, or in connection with the business of any utility.
New Customer:
Any person or entity who seeks water services at a location within the City’s limits from a utility, and has not previously had water services from that utility at that location. Provided, however, that a person or entity who seeks water services from a location previously served with water services by a utility, shall not be deemed a new customer for purposes of this regulation if the current character or nature of the use of the location has not materially changed from the previous use when the location received water services.
Order:
The whole or a part of the final disposition, whether affirmative, negative, injunctive, or declaratory in form, of the regulatory authority in a matter other than rulemaking, but including issuance of certificates of convenience and necessity and rate setting.
Proceeding:
Any hearing, investigation, inquiry, or other fact-finding or decision-making procedure under this regulation.
Service:
Any act done, rendered, or performed, anything furnished or supplied, and any facility used, furnished, or supplied by a utility in the performance of its duties under this regulation to its patrons, employees, other utilities, and the public, as well as the interchange of facilities between two or more utilities.
Utility:
Any person, corporation, public utility, water supply or sewer service corporation, operating, maintaining, or controlling within corporate boundaries of the City facilities for providing potable water service or sewer service, or both, for compensation.
(Ordinance 06-06 adopted 9/26/06)
The City establishes the following rules relating to service and response to requests for service for utilities operating within the City’s corporate boundaries. In this connection, the City Manager is instructed to develop and maintain a procedure for compliance with this section.
(a) 
Minimum Standards of Service.
Not later than 30 days after the adoption and final passage of this regulation, every utility providing services within this City’s corporate boundaries shall submit a written report (the “Report”) to the City Commission containing the following information:
(1) 
Capacity of Facility
(A) 
Water Utility -
The Report shall indicate the treatment and storage capacity requirements of the utility’s facilities as compared with the Texas Department of Health’s minimum capacity requirements for a public drinking water system. If the utility purchases any supply or service from another utility or provider, the Report shall also provide the information for the other utility or provider.
If at any time subsequent to the adoption of this regulation that capacity has reached 85 percent of capacity as compared with the minimum capacity requirements, the utility shall submit a planning report that includes details on how the retail public utility will provide the expected service to the remaining areas within the City’s corporate boundaries.
(B) 
Sewer Utility (Reserved).
(2) 
Design of Facility
(A) 
Water Facility -
The Report shall clearly identify all the water storage devices, lines, and meters within the City’s corporate boundaries. The Report shall also clearly label the size (in inches) of all lines within this area, and shall mark in an easily identifiable manner, those liens that meet or exceed their maximum connection limit based on Table A.
(B) 
Sewer Facility (Reserved.)
(3) 
Minimum Standards for Facilities
A utility providing services within the City’s corporate boundaries is prohibited from extending service to any new customer if its facilities fail to satisfy any of the following minimum standards:
(a) 
Capacity
(1) 
Water Facility
(A) 
Proposed Subdivisions -
No utility shall provide water or establish connections to provide water to a proposed subdivision or to a new customer within a subdivision until the City has issued a certificate of fire flow compliance for that proposed subdivision.
(B) 
New Customers -
No utility shall provide water or establish connections to provide water to a new customer unless the service location is within a subdivision or area for which the utility has issued a certificate of fire flow compliance.
(C) 
Criteria for Issuing Certificate
(i) 
A utility may apply for a certificate of fire flow compliance at any time for any general area to which it currently provides water service. Each identifiable subdivision may be issued its own certificate of fire flow compliance.
(ii) 
The City shall issue a certificate of fire flow compliance to a utility or any person applying for a certificate upon 1) written application and filing fee in the amount of $25.00, 2) a designation of the specific area for which the certificate is sought, and 3) the presentation of a certified engineer’s report that states that given the existing storage capacity and distribution system, and/or the proposed improvement, the utility can currently provide a minimum fire flow to the area in the application of 750 gpm with a residual pressure of 20 psi. The cost of the engineer’s report shall be paid by the person or utility requesting the Certificate. The Certificate shall list conditions with particularity.
(iii) 
The engineer’s report to be provided to the City shall state the residual pressure of water flow to the area at 750 gpm, and shall state the sources of the water supply to the area. The engineer’s report shall further state the accuracy of the calculations and the data upon which the calculations are based.
(b) 
The fire-flow Certificate shall constitute an authorization for the City or utility to extend or provide water services to a particular property or a subdivision. The Certificate shall not entitle any person to any right or interest, it being the primary objective of the City to require the continuous evaluation of existing water facilities and firefighting capability, rather than to create any enforceable rights.
(c) 
Design: Minimum Water Line Sizes.
(1) 
No new water lines under eight (8) inches in diameter shall be allowed to be installed in a water distribution system.
(2) 
The design of the distribution system shall be such that a customer location shall be served from two separate water supply sources. This systematic redundancy will help ensure that all customers continue to receive water services in the event of a failure involving one water supply source.
(3) 
The table below establishes the maximum number of connections allowed [to] be made on any existing pipe. A utility shall not make any additional connections to a pipe if after doing so there would result a pipe with connections in excess of the maximum number of connections allowed for a pipe of that size.
TABLE A
Maximum Number of Connections
Maximum Line Size
(in inches)
150
4"
151 - 250
6"
>250
8" and larger
COMMENTARY
Finding and Purpose of Lift Station Regulations:
The City is experiencing substantial growth. Unchecked, this growth can result in taxing the City’s public systems and facilities. Particularly with respect to potable water services, there is an increasing public demand for water. Similarly, the lack of sewer trunk lines has increased the request for additional sewer lift stations and pressure mains. While the City has made significant strides in improving its water treatment, storage and distribution facilities as well as its sewer transmission and treatment facilities, it has done so in a catch-up mode. While the City has caught up, so to speak, it needs to make sure that as growth and development occurs in the immediate future, water systems and facilities are in place to respond to the increased demand for water.
The City Commission finds that it is the in the public interest and in furtherance of the health, welfare, and safety of the citizens of the City, and the residents of the rural areas in the City’s extraterritorial jurisdiction, that the City adopt minimum design standards for water and sewer systems and minimum treatment and storage capacity requirements for all utility systems providing water to areas under the City’s jurisdiction.
In this connection, the City Commission wishes to exercise the City’s sovereign authority to the fullest extent under the Texas Constitution and to be limited only as limited in that authority by the acts of the Texas Legislature. To the extent that the City’s regulatory jurisdiction overlaps with the regulatory authority of the Texas Commission on Environmental Quality, it is the City Commission’s desire that its own regulatory jurisdiction take precedent where so authorized by the Texas Water Code, and other acts of the Texas Legislature. If a clear and irreconcilable conflict arises between the City’s purported jurisdiction herein, and the jurisdiction of the Texas Commission on Environmental Quality of the Texas Department of Health, then it is the City Commission’s objective that the provisions of this regulation be interpreted to be consistent with and subordinate to the jurisdiction of those state agencies. On the other hand, if the jurisdiction or authority of a state agency indicates only a partial preemption over some regulatory matter, it is the desire of the City Commission that both the state and local interest be reconciled and that this regulation be interpreted to accomplish objectives that are set out herein.
(Ordinance 06-06 adopted 9/26/06)