COVID-19 Update: Water

by Mike Gershon

It is not surprising that the U.S. Department of Homeland Security’s March 28, 2020 COVID-19 advisory prioritized various functions within the water and wastewater industries as essential to public health and safety, as well as economic and national security. Managing water and wastewater, operating utility facilities, and meeting demands of dozens of industries and our nation’s citizens are as important as ever. Whether in the field, office, boardroom, council chambers, or agency, Lloyd Gosselink recognizes that the important work of our clients needs to get done.

Every day since the President’s and Governor’s disaster declarations, our Water Practice Group has stayed up to date on changes in the way our clients may have to do business. Our commitment has been to keep our clients’ business moving forward, on task, even under new and ever-changing protocols of federal, state and local agencies—and in the way our clients’ management, staff, consultants, and partners communicate.
COVID-19 (SARS-CoV-2) is a type of virus that is susceptible to disinfection and standard treatment and disinfection processes according to TCEQ, EPA and the World Health Organization’s March 19, 2020 guidance. In its COVID-19 guidance for water utilities, TCEQ emphasizes the importance that utilities (a) continue routine sampling and reporting to ensure appropriate treatment levels and (b) establish a plan for redundancy, back-up, and sharing licensed operators. Any temporary change in operator must be reported to PWSINVEN@tceq.texas.gov. Ensuring continuous and adequate water service has been a priority for PUC and TCEQ. As indicated in the EUPG summary above, PUC has ordered utilities not to disconnect for nonpayment.

Expenses incurred that relate to the virus pandemic should be accounted for because economic relief could be available. As detailed in the Employment Law COVID-19 story (see page 5), COVID-19 spending may be eligible for reimbursement. The PUC has stated that certain expenses can be deferred as a regulatory expense, as stated in the EUPG’s summary above. Efforts are underway in Washington, D.C. and Austin to pursue additional economic relief for the water and water industries.

Most state and federal agencies where our clients conduct business have announced that their staff will remain working remotely, including the Texas Department of Licensing and Regulation, Office of the Attorney General, PUC, RRC, State Library and Archives Commission, TCEQ, Water Development Board, the United States Corps of Engineers, Fish and Wildlife Service, USDA, and the Federal Energy Regulatory Commission. It has been our experience through mid-April that most agency management and staff are accessible and responsive, and that the Commissions and Boards are holding their public meetings remotely with the opportunity for public participation with advance registration.

Notably, surface water rights and water quality permitting technical review work at TCEQ continues with TCEQ staff working remotely and accessible. Similarly, substantive groundwater rights permitting at groundwater conservation districts is ongoing, with staff processing drilling and production permit applications. If an application is contested and pending before SOAH or a district, filings are being accepted and accommodations made for remote hearings. On March 24th, TCEQ’s Commissioners handled a heavy load of business on their agenda with the intent to stay on track with their April agenda. Likewise, many district boards have convened remotely to consider and act on pending applications.

Routine financing and grants for utility infrastructure depend upon extensive application and due-diligence work by TWDB, USDA-RD/RUS, or EPA. All three agencies have announced that their staff is in remote operational status and available by email and phone.

Enforcement offices at TCEQ and EPA have issued guidance intended to help regulated entities whose regulatory compliance may be affected by COVID-19.

For additional information regarding how TCEQ and the EPA are addressing enforcement during this period, see the piece authored by Sam Ballard on page 2 of this edition of The Lone Star Current.

This summary was prepared by Mike Gershon, Chair of the Firm’s Water Practice Group. If you would like additional information or have questions related to this article or other matters, please contact Mike at 512.322.5872 or mgershon@lglawfirm.com.