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Somach Simmons and Dunn intends to provide periodic updates regarding the potential impacts of the novel coronavirus (COVID-19) on operations for water agencies and service providers. This alert summarizes five areas of potential impact for Colorado water service providers.
On March 25, 2020, Governor Polis issued a Stay at Home Order to slow the spread of COVID-19 effective March 26, 2020. Public water and wastewater service providers are designated as Critical Businesses exempt from the order, and any work involving the operation and maintenance of drinking water and wastewater infrastructure, hubs, and treatment plants is similarly exempt.
While Critical Businesses are exempt from the Governor’s order, the Colorado Department of Public Health and Environment (CDPHE) issued an accompanying order on March 27, 2020 stating that Critical Businesses must still comply with Social Distancing Requirements at all times—six-foot distancing, handwashing/sanitizing as frequently as possible, regular cleaning of high-touch surfaces, and no hand-shaking. Additionally, the order requires Critical Businesses to adopt work from home or tele-work policies for any operations that can be done remotely, and implement other strategies, such as staggered schedules or re-designing workplaces, to create more distance between workers unless doing so would make it impossible to carry out critical functions. That said, the CDPHE has highlighted the special importance of public water systems and stated that while such measures are encouraged to the extent possible, water system operators should prioritize normal operations and maintenance of their facilities.
Continuity of Operations:
All public water systems should plan for continuity of operations during a pandemic or any other type of emergency (e.g., flooding or forest fires). The EPA has developed an Incident Action Checklist related to the COVID-19 pandemic which links to a number of useful resources.
At this time, the CDPHE has identified staffing shortages as the most serious expected challenge for public water systems—employees who are sick, who are taking care of others, or who must stay home for other reasons. Labor shortage plans should include procedures for augmenting staff as needed due to incapacitation or loss of available workforce. Additionally, mutual aid may be available through the CoWARN network. Finally, consult the Water Research Foundation’s Business Continuity Planning for Water Utilities Guidance Document for additional information on continuity planning.
Public Communication Responsibility:
CDPHE still expects utilities to manage the public information function for their district during an emergency.
The Colorado Division of Water Resources (DWR) staff are working remotely in response to the Governor’s COVID-19 Stay at Home Order. DWR is asking that people use electronic means to communicate with DWR staff and advising people that processing documents received via mail may be delayed. General questions may be submitted through AskDWR or via email to the staff contacts. Applications may be submitted through DWRPermitsOnline@state.co.us and payment processing online is expected to continue.
No Relaxation of Compliance Requirements:
With minor alterations pertaining to discharge monitoring reporting, all water quality compliance requirements remain in full force and effect. This includes regulatory compliance requirements associated with the Clean Water Act, as the federal government has delegated implementation and enforcement authority for those programs to the state, except on tribal lands and federal facilities.
Limited Rulemaking Postponement:
CDPHE intends that the majority of the scheduled regulatory and policy activities continue as planned, albeit over videoconference, with very limited exceptions.
Ongoing Cases in State and Federal Court:
Each jurisdiction is posting information on its website regarding appearances in court, and the general status of pending and future litigation.
Notarizing Legal Documents, Including Water Court Applications and Statements of Opposition:
On March 27, 2020, Governor Polis issued Executive Order D 2020-19, which addresses issues related to notarization. The Order has two main directives. First, it temporarily suspends the requirement to appear in person before a notary. Second, it authorizes the Colorado Secretary of State to promulgate and issue temporary emergency rules to allow remote notarizations. The Order expires April 26, 2020 unless extended.
On March 30, 2020, Colorado Secretary of State Jena Griswold issued temporary emergency rules for remote notarization in Colorado that are effective immediately. The complete Notary Program Rules are available here. The new rules allow a notary public to perform a remote notarization for a remotely located individual located in the State of Colorado by means of audio-video communication.
Water Court Applications:
Several state water court divisions have issued administrative orders addressing the long-standing requirement to include a notarized signature on water court applications. Water Divisions 1, 2, 5 and 7 issued administrative orders allowing the applicant filing a water court application to include a verified signature as an alternative to a notarized signature for applications filed through April 30, 2020. Any application filed during this time period with a verified signature must be supplemented with a notarized signature by June 1, 2020.
Statements of Opposition:
Statements of opposition must also include a notarized verification. The Water Division 5 administrative order allows a verified signature on statements of opposition filed through April 30, 2020. The administrative orders in Water Divisions 1, 2 and 7 do not address statements of opposition; however, Water Division 2 has announced that statements of opposition may currently be filed without being notarized, and that once the applicant is able to obtain a notarized signature, they must file the notarized verification form.
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.Read more news and alerts »