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Virus-Related Delays Cause States to Rethink Water Permit Compliance

March 24, 2020, 10:00 AM

States around the country say they won’t penalize water and wastewater utilities for failing to meet Clean Water Act permit requirements due to delays caused by the deadly coronavirus if those delays are justified and documented.

Delays, for example, could be caused by utility staff who test and monitor water quality—or lab workers who analyze it—being quarantined with Covid-19.

“We can and will use reasonable enforcement discretion,” Melanie Davenport, water permitting division director for the Virginia Department of Environmental Quality, said last week at a webinar by the Water Environment Federation on how the pandemic is affecting permit holders.

The priority needs to be monitoring, testing, and documenting to show utilities are meeting permit limits “because as you all know those are designed to protect public health,” said Davenport, president of the Association of Clean Water Administrators (ACWA).

Davenport also said that utilities shouldn’t expect the agency to “predetermine enforcement discretion decisions.”

Water and wastewater utilities ensure that the water that people drink and use to wash hands is free of viruses and bacteria. They also ensure the safety of bodies of water used for recreation.

“Our biggest concern is we protect against a waterborne disease outbreak whether it comes from a drinking water scenario or recreational waters,” Shellie Chard, water division director for the Oklahoma Department of Environmental Quality, said during the webinar.

Document Noncompliance

Jomo Miller, spokesman for the New York Department of Environmental Conservation, said in a Monday statement that the state expects plant operators to make continued best efforts to fulfill all regulatory requirements and document any noncompliance and the reason for noncompliance.

Chard said Oklahoma is willing to grant regulatory flexibility with permits provided the utilities document every instance of permit compliance delay caused by the virus and report it diligently to the agency.

And in Oregon, the Department of Environmental Quality said in an online statement that it recognizes that the state of emergency declared by Gov. Kate Brown (D) may make it challenging to comply with requirements on permits and other matters. The agency said it would “exercise reasonable discretion” about violations caused by the emergency conditions and asked regulated entities to operate safely and document any pandemic-related disruptions.

California issued guidance that also provided for how dischargers could document and explain why they couldn’t comply, Diana Messina, chief of the State Water Resources Control Board surface water permitting section, said by email. “Full permit compliance should remain the default as protection of water quality per regulations is an essential function that should continue during the COVID-19 emergency,” she added.

Advice to Clients

Fredric Andes, a partner with Barnes & Thornburg LLP who specializes in Clean Water Act regulations, is advising his clients, who include a number of publicly owned utilities, to study the boilerplate language of Clean Water Act discharge permits, which regulate pollutants entering the nation’s waters.

“Look at the general conditions in these permits and assess which of those you might be able to use when you are having a problem due to coronavirus,” said Andes, who joined Davenport and Chard on the webinar.

Utilities need to know how to contact state agencies and deliver compliance reports during the pandemic, he said.

Don’t use the coronavirus as an excuse for not meeting obligations. “This is not a get out of jail free card. You need to document everything,” Andes said.

Force majeure claims, or claims made for events like hurricanes and earthquakes described as “act of God” exemptions, cannot be made for permits, only for consent decrees reached with agencies, he added.

—With assistance from Emily C. Dooley.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Renee Schoof at rschoof@bloombergenvironment.com

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