The Nickel Report

The California State Water Resources Control Board (State Board) and the nine Regional Water Quality Control Boards (the Regional Water Boards) recently published guidance on complying with regulatory requirements during the COVID-19 shelter-in-place orders.^[1]

California Governor Gavin Newsom’s “stay-at-home” order was issued on March 19, 2020, just a few days after similar “shelter-in-place” orders were issued by seven counties in the San Francisco Bay Area.  The state-wide order and the county orders require residents to “shelter at their place of residence” but provide an exemption for individuals performing “Essential Activities,” “Essential Government Functions,” or to operate “Essential Businesses.”

The State Water Board’s guidance (1) declares that actions taken to comply with Water Board requirements are exempt from shelter-in-place orders, and (2) requires regulated entities to “immediately” notify the Board if compliance is not possible during the COVID-19 emergency.

Compliance is an “essential activity,” “essential government function,” or subject to comparable exceptions to the shelter-in-place orders.

The State Water Board is not issuing a blanket waiver for compliance with regulatory requirements during the term of the shelter-in-place orders.

Specifically, the position of the State Water Board is that compliance with board-established orders and other requirements is an “essential activity,” “essential government function,” or subject to comparable exceptions in the shelter-in-place orders.  This declaration means that regulated entities must continue to comply with all regulatory requirements while the shelter-in-place orders are in effect, unless the impacts of COVID-19 prevent such compliance.  This scope of this guidance appears to extend to all permits, orders, and directives issued by the Regional Water Boards in California, including (but not necessarily limited to):

• State-issued National Pollution Discharge Elimination System (“NPDES”) pursuant to delegated Clean Water Act authority from US EPA;
• Waste Discharge Requirements pursuant to the California Water Code;
• Cleanup and Abatement Orders;
• Water Code Section 13267 technical report requirements;
• Cease and Desist Orders; and
• General permits, such as the Industrial General Permit and the Construction General Permit.

Regulated entities must “immediately” notify the Board if compliance is not possible due to impacts of COVID-19.

If compliance with regulatory requirements implemented by the State Water Board and Regional Boards is not possible due to the health situation in California or would be inconsistent with a specific provision of a state or local order related to COVID-19, the State Water Board directs regulated entities to notify the relevant Regional Water Board by e-mail “immediately.”

The guidance does not provide details on how the State Board will define “not possible” under the circumstances.  Nor does the State Board define how quickly notice must be provided, in terms of hours or days, to meet the “immediate” requirement.  Therefore, entities who anticipate difficulty complying with Water Board requirements should consider notifying the relevant Water Board as soon as possible.  It is advisable to provide advanced notice in the event of anticipated non-compliance.

The e-mail notification must include the following information:

• the specific Water Board order, regulation, permit, or other requirement that cannot be timely met;
• the inconsistent COVID-19 directive or guideline;
• an explanation of why the responsible entity cannot timely meet the Water Board order or requirement; and
• any action that the entity will take in lieu of complying with the specific Water Board order or requirement.

The State Board has represented that Regional Water Boards will do their best to respond within 24-48 hours to e-mail notifications.

Although such non-compliance may be excused via the Regional Water Board’s enforcement discretion, the March 20 guidance represents the most recent information regarding the State Board’s interpretation of the shelter-in-place orders as of the date of this posting.  Specific questions should be directed to the relevant Water Board:

North Coast Water Board: NorthCoast@Waterboards.ca.gov

San Francisco Bay Water Board: RB2-SFBayExecSupport@Waterboards.ca.gov

Central Coast Water Board: Sheila.Soderberg@waterboards.ca.gov

Los Angeles Water Board: Russ.Colby@waterboards.ca.gov

Central Valley Water Board: Kari.Holmes@waterboards.ca.gov

Lahontan Water Board – North: Scott.Ferguson@waterboards.ca.gov; South: Patrice.Copeland@waterboards.ca.gov

Colorado River Basin Water Board: Cassandra.Owens@waterboards.ca.gov

Santa Ana Water Board: Jayne.Joy@wateboards.ca.gov

San Diego Water Board: SanDiego@waterboards.ca.gov

Regulated entities should also be aware that more specific directions for certain types of Water Board orders and other requirements may also be provided by the State Water Board in the future.  It is therefore advisable to continue checking the State Water Board website for further guidance during this evolving situation in California.

^[1] California Water Boards, Compliance with Water Board Requirements During the Coronavirus 2019 (COVID-19) Emergency (Mar. 20, 2020), available at https://www.waterboards.ca.gov/resources/covid-19_updates/index.html.