California Water Board Issues Guidelines For Regulatory Compliance During COVID-19 Response

Last week, as part of the effort to slow the spread of COVID-19, California Governor Gavin Newsom issued an Executive Order requiring all Californians to “shelter in place.” The Order requires all state residents stay at home, leaving only to engage in “essential activities.” The Order identifies 16 critical infrastructure sectors that provide services that are essential to the health and well-being of Californians. The sixteen sectors include:

1. chemicals;
2. commercial facilities;
3. communications;
4. critical manufacturing;
5. dams;
6. defense industrial base;
7. emergency services;
8. energy;
9. financial services;
10. food and agriculture;
11. government facilities;
12. healthcare and public health;
13. information technology;
14. nuclear reactors, materials, and waste;
15. transportation systems; and
16. water and wastewater systems.

Shortly after the Governor’s Order was issued, the California State Water Board and its associated Regional Water Resources Control Boards issued a response to the Order. The Water Boards argue that compliance with Water Board established orders and requirements fall under the definition of “essential functions” as referenced by the Governor’s Order. As such, they anticipate no major barriers to the continued compliance with Water Board directives, requirements, and/or regulations.

In the event that compliance with a Water Board requirement presents an instance of engaging in activities that fall outside of the “essential activities, essential governmental functions, or comparable exceptions to shelter-in-place directives provided by local public health officials,” the Water Board states that compliance efforts may be delayed. In such instances, companies are expected to provide notification of delay to their regional Water Board. Notification materials must include:

1. The name of the regulation that is subject to delay;
2. The COVID-19 directive or guideline that presents a challenge to complying with the Water Board Order or regulation;
3. An explanation of how the directive affects compliance with Water Board directives; and
4. An explanation of the actions the company or entity plans to take in lieu of complying with the requirement.

Water Board staff will endeavor to respond to any delay notifications within one to two days.