Eminent Domain Report

California water providers are one step closer to receiving important statutory protection against inverse condemnation claims arising from catastrophic wildfires. Senate Bill 1153 has passed both houses of the California Legislature and is headed to Governor Newsom. If signed, the legislation would provide important guidance regarding what public water systems can—and cannot—reasonably be expected to do during a wildfire.

For those following California inverse condemnation law, the bill is particularly significant because it builds upon both prior legislation addressing fire hydrants and the California Supreme Court’s framework for inverse condemnation liability in City of Oroville v. Superior Court (2019) 7 Cal.5th 1091. Taken together, these developments reinforce an important principle: inverse condemnation liability should turn on the inherent risks associated with the actual design, construction, and intended operation of a public improvement—not on functions the improvement was never designed to perform.

The Supreme Court's Oroville Framework

In its 2019 Oroville decision, the California Supreme Court clarified an important limitation on inverse condemnation liability. As the Court explained: “To succeed on an inverse condemnation action, a plaintiff must ordinarily show . . . that the damage to private property was substantially caused by inherent risks associated with the design, construction, or maintenance of the public improvement.” That formulation is particularly important when inverse condemnation claims are asserted against water providers following a wildfire. A public water system unquestionably plays a role in fire response. Hydrants provide firefighters with access to water, and water providers may take extraordinary measures to maintain service during emergencies. But does that mean a public drinking-water system is itself designed, constructed, or maintained to suppress a catastrophic wildfire? The Legislature has increasingly answered that question: No.

The Legislature Previously Addressed Fire Hydrants

SB 1153 is not the Legislature’s first effort to clarify the distinction between ordinary water infrastructure and wildfire-suppression infrastructure. Prior legislation established that fire hydrants are not “designed or installed to provide water service to aid in extinguishing . . . wildfires.” That clarification was important in light of Oroville. If inverse condemnation liability depends upon risks inherent in the design, construction, or maintenance of a public improvement, identifying what that improvement was actually designed to accomplish becomes critical. SB 1153 takes the next step.

SB 1153: Water Systems Are Not Designed to Suppress Wildfires

The new legislation would add Government Code section 8607.3 and impose certain wildfire preparedness requirements on qualifying urban retail water suppliers. But for purposes of inverse condemnation and wildfire liability, the most significant provision may be subdivision (b). It provides: “Notwithstanding any other law, nothing shall be interpreted to impose a duty on public water systems, including wholesale water systems, to design, construct, or maintain a water system for wildfire defense or suppression.”

Although certain suppliers would be required to identify mitigation actions and incorporate incident-specific procedures into their disaster preparedness plans, SB 1153 expressly provides that those measures do not guarantee a water system’s ability to maintain water supply or water pressure during a wildfire. And critically, the legislation addresses the causation element directly. Neither a failure to implement the specified preparedness measures nor the inability of a public water system to maintain water supply or pressure during a wildfire may be considered a “substantial cause” of the resulting wildfire damages. That language tracks a central component of the Oroville framework.

The Legislative Findings Are Important Too

SB 1153’s legislative findings provide additional context. The Legislature recognizes that public water systems are designed and constructed to provide clean and safe drinking water. Although those systems assist firefighting efforts, they are not designed or constructed for wildfire defense or suppression. The bill also recognizes the practical realities confronting water providers during catastrophic fires. Designing a public water system to function as a wildfire-suppression system would be physically impracticable and financially infeasible and could adversely affect water quality and affordability. Those findings help answer a question that can otherwise become obscured after a catastrophic event: What was the public improvement actually designed to do? A water system's inability to maintain ordinary water pressure when confronted with extraordinary wildfire conditions does not necessarily establish that the system malfunctioned or that an inherent risk of its design caused the resulting property damage. The system may simply have encountered conditions far beyond the function for which it was designed.

Why This Matters for Inverse Condemnation

The significance of SB 1153 becomes clearer when viewed alongside Oroville and the Legislature’s earlier fire-hydrant legislation. Oroville instructs courts to focus on whether property damage was substantially caused by an inherent risk associated with the design, construction, or maintenance of the public improvement. The Legislature subsequently clarified that fire hydrants are not designed or installed to provide water service for extinguishing wildfires. Now, SB 1153 would clarify more broadly that public water systems have no duty to be designed, constructed, or maintained for wildfire defense or suppression—and that the inability to maintain water supply or pressure during a wildfire is not a substantial cause of wildfire damages. Together, these authorities provide an increasingly well-defined defense to wildfire-related inverse condemnation claims against water providers.

What Comes Next

SB 1153 has now cleared the Legislature and awaits action by Governor Newsom. From the Supreme Court’s decision in Oroville, to the Legislature’s clarification regarding the intended purpose of fire hydrants, to SB 1153’s broader declaration concerning public water systems, the law is increasingly focusing attention where it belongs: on the actual design, intended function, and inherent risks of the public improvement at issue. For California water providers facing increasingly frequent and severe wildfires—and the litigation that often follows them—that is an important development. We will continue to monitor SB 1153 and provide an update when Governor Newsom acts on the bill.