Somach Simmons & Dunn intends to provide periodic updates regarding the potential impacts of the novel coronavirus (COVID-19) on operations for water agencies.  This first alert provides a summary of five important issues and regulatory actions that may impact California water and wastewater agencies’ operations and management.

1.  General Compliance Information Regarding Governor Newsom’s Executive Order

On March 21, 2020, Governor Gavin Newsom issued Executive Order N-35-20.  The order impacts public water agencies in a number of different ways including staffing, Brown Act compliance, and filing deadlines.

Local Agency Staffing

The new guidelines extend the suspensions in the Governor’s previous Executive Order N-25-20, to local government agencies.  The order suspends work hour and time limitations for retired annuitants, permanent and intermittent personnel, management, and supervisors, in order to ensure adequate state and local staffing through the duration of the emergency declaration.  This provision is intended to bolster the supply pool of workers so as to maintain essential government functions in the event of a shortage.  Local agencies employing individuals in a manner pursuant to these orders must provide notice to the Department of Human Resources.

Brown Act and Bagley-Keene Act Compliance

The Governor had previously suspended a number of Brown Act provisions (via Executive Order N-25-20 and N-29-20) that limited meeting participation to teleconference in order to promote social distancing with limited disruption to public meetings.  The Executive Order additionally authorizes all members of a local legislative or state body to receive updates relevant to the COVID-19 declared emergency from federal, state and local officials.  Those members may ask questions of those officials to remain informed of emergency operations and impacts on constituents.  The order does not permit members of local legislative or state bodies to take action, or discuss amongst themselves any item of business within their jurisdiction without otherwise complying with the Brown Act or Bagley-Keene Act.  The effect of this provision is that members of local legislative bodies may receive updates and ask questions of officials regarding topics relevant to the COVID-19 emergency without risking noncompliance with public meeting laws.

Government Claims Filing Deadline

Executive Order N-35-20 modifies the filing requirements under the Government Claims Act (Gov. Code, § 910 et seq.).  The order extends the deadline for claimants to file a claim by 60 days.  The 45-day timeline for local agencies to respond to claims or they are deemed rejected is unchanged by the order.

2. Impacts to Operations at the State Board’s Division of Water Rights

The State Water Resources Control Board (State Board) Division of Water Rights is adapting operations to meet the guidelines issued by both Governor Gavin Newsom through Executive Order N-33-20 and the Sacramento County Stay at Home Order.  The orders direct Californians to stay at home except as needed to maintain operations of critical infrastructure sectors during COVID-19, as defined by the Department of Homeland Security.  The State Board will restrict in-person appointments and file review except for essential matters consistent with EO N-33-20 and Sacramento County travel restrictions.  Due to the nature of the COVID-19 pandemic, in person State Board meetings are cancelled or postponed indefinitely.  State Board staff are developing options to allow for upcoming board meetings to proceed with opportunities for remote participation.

3. Impacts to Operations of Public Water Systems

The State Board issued guidance on ways to reduce the impact of COVID-19 on the operation of public water systems, noting that the continued delivery of potable water to customers is an essential function during the pandemic.  The guidance notes that “[i]t is necessary that public water systems (PWSs) provide ongoing water quality monitoring and reporting in accordance with laws, regulations and permit requirements.”  The State Board also issued a fact sheet assuring the public that the state-required treatment process under the State’s comprehensive and safe drinking water standards removes viruses, including the coronavirus.

4. Water Quality Compliance Issues

The State Board and the nine Regional Water Quality Control Boards issued an update on March 20, 2020 stating that compliance with board-established orders and other requirements are “within the essential activities, essential governmental functions, or comparable exceptions to shelter-in-place directives provided by local public health officials” during the COVID-19 response.  Accordingly, “timely compliance by the regulated community with all Water Board orders and other requirements (including regulations, permits, contractual obligations, primacy delegations, and funding conditions)” is expected.  However, for those orders or requirements “that cannot be timely met because it would be inconsistent with current governmental directives or guidelines related to COVID-19, the entity responsible for compliance with the Water Board order or requirement must notify the applicable Water Board” immediately by email.

5. Impacts to Ongoing State and Federal Litigation

Both the state and federal court systems issued orders and/or guidance that postpone in-person hearings, extend applicable deadlines, and maintain operations only for specific emergency matters.  At this time, applicable orders are generally court-specific.  For example, the Sacramento Superior Court declared the period March 20-30, 2020 to be a court holiday for all purposes, with specific exceptions for certain criminal and family law matters, as well as for COVID-19-related emergency matters.  The California Supreme Court issued an administrative order on March 20, 2020 extending all deadlines falling in the period through April 20, 2020, for an additional 30 days.  Any water agency presently in litigation should carefully review the deadlines for the applicable court with counsel.

For more information please contact Rich Deitchman and Michelle Chester at 916-446-7979 or by email at rdeitchman@somachlaw.com and mchester@somachlaw.com.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.

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