Revisions to the California Safe Drinking Water and Toxic Enforcement Act, commonly known as Proposition 65, go into effect on April 1, 2020. The amendments are intended to clarify methods of compliance by upstream parties, including manufacturers, producers, packagers, importers, suppliers, or distributors of products with chemicals subject to warning requirements under the Act. They also include a modified definition of the key phrase “actual knowledge,” one of the triggers that can result in retailer responsibility for warnings.

Under the revised language, entities upstream in the supply chain for a regulated product may meet warning requirements in two ways: either (1) by providing a warning on product labels, or (2) with written notice to the business to which they are selling the product, including to retailers, to be updated annually during the period of sale in California. Previous language did not clearly indicate that retailers were not the only entities that could receive information for purposes of compliance. The update also clarifies that confirmation of receipt of warning notices must be renewed annually, along with the notices themselves.

The changes also sharpen the definition of “actual knowledge,” seeking to provide retailers additional shelter from general imputed knowledge that the previous definition of the phrase could be interpreted to support. Existing regulations define “actual knowledge” to mean “specific knowledge of the consumer product exposure from any reliable source.” The new definition of “actual knowledge” specifies that “information from a reliable source” must enable the retail seller or an authorized agent to “to identify the specific product or products that cause the consumer product exposure.” In other words, general information about a group or category of products that could be subject to warning requirements is not enough—a retailer must have information about a specific product from an identifiable, credible source. Moreover, a statement by the Office of Environmental Health Hazard Assessment (OEHHA), which is responsible for adopting and implementing Proposition 65 regulations, explained that information cannot be provided to any employee, as some plaintiffs have contended: new language clarifies that it must be provided to an “authorized agent or a person whose knowledge can be imputed” to the retailer, such as one of its officers.

Proposition 65, which was approved by voters in 1986, requires business to provide a “clear and reasonable warning” for products with chemicals listed by the State as causing cancer or reproductive toxicity. The changes to the definition of “actual knowledge” extend and expand protections for retailers that were implemented in August 2018, according to OEHHA, in response to subsequent stakeholder comments. The 2018 changes established protections for retailers from responsibility except in certain circumstances—including when they have “actual knowledge” of the requirement to warn, and there is no upstream producer or supplier with ties to California. Those rules are discussed in detail here.

In response to guidance issued by EPA’s Office of Enforcement and Compliance Assurance regarding enforcement discretion in light of COVID-19, the Virginia Department of Environmental Quality (DEQ) has issued its own guidance. In its accompanying press release, DEQ takes a stern tone and makes clear that DEQ expects compliance with all environmental compliance obligations and permit limits, that the crisis does not “equal a free pass for the regulated community,” and that regulated entities should make every effort to comply.

Nevertheless, like EPA, DEQ will consider any non-compliance resulting from COVID-19 on a case-by-case basis. The guidance states that DEQ will “exercise reasonable enforcement discretion within its authority when deciding whether to pursue potential violations caused by pandemic-related disruptions.”  Similar to EPA’s guidance, DEQ requests that any noncompliance be minimized and well-documented, including the specific nature and dates of noncompliance and by identifying how COVID-19 was the cause of the noncompliance. DEQ also requests that any entity with a COVID-19-related compliance issue communicate “early and often” with DEQ. If DEQ agrees that COVID-19 impacts were the case of noncompliance, DEQ’s press release notes that it does not anticipate penalizing certain minor violations such as routine compliance monitoring, sampling, reporting and certification obligations.

DEQ also temporarily suspended all fieldwork, including inspections, earlier this week so that DEQ can assess COVID-19 exposure risks and develop appropriate exposure mitigation plans.

For more information regarding the EPA and DEQ COVID-19 enforcement guidance, please contact Brooks Smith, Andrea Wortzel, or Patrick Fanning.

California regulators have announced that the comment period for a recent proposal, Supplemental Guidance: Screening and Evaluating Vapor Intrusion, has been extended to June 1, 2020, and public workshops and webinars originally scheduled for April have been postponed until further notice.

Vapor intrusion occurs when contamination moves from groundwater and soil beneath a structure into the air, accumulating in occupied areas where they can result in safety hazards or health effects. Common vapor-forming chemicals include volatile organic compounds including trichloroethylene (TCE), mercury, polychlorinated biphenyl (PCB), and certain pesticides. Testing for vapor intrusion is an important step in investigating a potential development site, and in ensuring the health and safety of existing residential and commercial buildings.

The Supplemental Guidance, which was developed collaboratively by the Department of Toxic Substances Control (DTSC), the San Francisco Bay Regional Water Quality Control Board, and the State Water Resources Control Board, is intended to increase the consistency of testing methods. It will also improve the reliability of data resulting from VI testing, which will be compiled into a planned statewide VI database through the State Water Board’s GeoTracker online system. The Supplemental Guidance also would integrate improved scientific understanding of how contamination moves from soil and groundwater to air and of short-term toxicity in certain contaminants.

The Supplemental Guidance includes recommendations for procedures for testing potentially contaminated water and soil, as well as for monitoring indoor air quality in affected structures, cover a broad range of topics, including:

  • How to prioritize testing, and to identify which buildings are the most likely to be affected by contamination.
  • Methods for evaluating multiple lines of evidence related to complex sites or facilities to understand the nature and scope of contamination.
  • Recommendations to implement data-based standards for evaluating and responding to specific risks or impacts, including updated attenuation factors (AF).
  • Mitigation and risk management recommendations.
  • Best practices for selecting locations for sampling, based on current understanding of how contaminants travel. This includes new understanding of the potential for movement in and through sewer pipes and other preferential pathways.

The Supplemental Guidance complements the procedures and practices described in existing guidance, including DTSC’s 2011 Final Guidance for Evaluation & Mitigation of Subsurface Vapor Intrusion to Indoor Air, and the San Francisco Bay Area Regional Water Quality Control Board 2014 Interim Framework. These documents remain part of current compliance guidance, as does EPA Vapor Intrusion guidance for testing and assessment of sites regulated under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

Notably, the Supplemental Guidance does not apply to the evaluation of releases from underground storage tanks (USTs), which must be evaluated for vapor intrusion based on the requirements of State Water Board Resolution 2012-0062, Low-Threat Underground Storage Tank Case Closure Policy (2012).

For additional information or assistance related to vapor intrusion, USTs, or related issues, please contact Angela Levin (angela.levin@troutman.com) or Louise Dyble (louise.dyble@troutman.com).

As reported previously, California agencies are providing clarification and directives to guide regulatory compliance following Governor Gavin Newsom’s state-wide “stay at home” order issued on March 19, 2020. More specific guidance has now been issued by the State Water Resource Control Board (SWRCB) for Public Water Systems, and by the South Coast Air Quality Management District for all regulated entities.

Notably, although EPA has announced that enforcement discretion will be exercised in cases where routine compliance is not reasonably practicable, the Agency recognizes the authority of states and tribes to determine their own enforcement policies. Thus, California-regulated companies also must track how California agencies are approaching compliance during COVID-19 to ensure ongoing compliance.

Drinking Water Safety. The State Water Resource Control Board (SWRCB) issued a statement on March 25 reiterating that drinking water safety is a top priority, and that Public Water Systems must fully comply with all regulatory requirements. The Board urged “those working in the water sector” to be “flexible and collectively work toward solutions to accomplish the essential tasks and maintain the essential services to which we have committed and of which our communities so critically depend upon.”

The SWRCB also provided recommendations to Public Water Systems for best practices in responding to COVID-19, including coordination with local Emergency Operations Centers and Public Health Departments, planning to maintain staffing capacities and to adopt methods to ensure efficient use of limited resources; measures to ensure adequate stocks of essential supplies, including chemicals and materials; reviewing and updating emergency response and notification plans; and planning for cash flow issues.

Under the directive issued Friday, March 20, all regulated entities must provide immediate notice if it becomes apparent that a Board order or requirement cannot be met due to government directives or guidelines related to COVID-19. Notices must include specific information, and must be sent to the correct agency official, with responsibility for the relevant program or division. Instructions and a list of contacts is available on the Board website.

South Coast Air Quality Expedited Permitting. The state’s largest regional air quality regulator, the South Coast Air Quality Management District, has announced that they will be prioritizing and expediting the permitting process for businesses and organizations that are changing operations or repurposing efforts to aid the effort to address supply issues related to the COVID-19 crisis. Entities that may qualify should send an email with “COVID-19 Permit” in the subject line to permitservicesonlien@aqmd.gov. The email should include:

  • Equipment and process descriptions, including a specific description how the project is critical to the COVID-19 response;
  • Facility name, Facility ID (if available), and facility address;
  • Contact name and phone number;
  • Flow diagram and process rates;
  • Operating schedules; and
  • Air pollution control equipment and stack/exhaust emissions data.

The South Coast measures provide support in the context of ongoing regulatory enforcement. California Air Resources Board (CARB) Chair Mary Nichols has issued a statement that, although the agency has taken action to protect the health and safety of the public and employees that may result in temporary delays, CARB regulations “continue to be in effect and deadlines apply.”

State and local agencies in California will continue to respond to rapidly changing circumstances, and we will provide relevant updates. For more information on changes in environmental compliance and policy affecting businesses and regulated entities with operations or interests in California, contact Angela Levin (angela.levin@troutman.com) or Louise Dyble (louise.dyble@troutman.com).

Today, U.S. Environmental Protection Agency (EPA) Assistant Administrator of EPA’s Office of Enforcement and Compliance Assurance (OECA) Susan Bodine issued guidance regarding OECA enforcement discretion in the wake of the coronavirus (COVID-19) COVID-19 pandemic. EPA intends to focus its resources largely on situations that may create an acute risk or imminent threat to public health or the environment. The guidance, which is retroactively effective to March 13, does not have an end date but EPA commits to reviewing the policy regularly and to providing a seven day notice of its termination on OECA’s guidance page.

The guidance acknowledges that COVID-19 and related government social distancing restrictions may affect facility operations and performance, and addresses steps that regulated entities must take for any noncompliance to be considered for enforcement relief under the guidance. Specifically, the guidance states that entities should make every effort to comply with their environmental compliance obligations. Where compliance is not reasonably practicable, entities should minimize the effects and duration of any noncompliance caused by COVID-19, identify the nature of the noncompliance, how it was caused by COVID-19, return to compliance as soon as possible, and document all of this information. The guidance does not apply to criminal violations, nor does it affect any authorized actions by states or tribes or any other existing statute or regulation.

Routine Compliance Obligations

The guidance notes that COVID-19 may affect a company’s ability to perform routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification, and recommends that entities use existing procedures to report this noncompliance but that both the administering agency and your EPA region should be notified. If no reporting procedures exist, entities should maintain this information internally. EPA explains that it does not expect to seek penalties for these types of violations where EPA concurs that COVID-19 was the cause of the noncompliance and the entity can produce supporting documentation. EPA does not anticipate seeking any “catch up” monitoring once the guidance is no longer in effect, but for other monitoring such as annual or bi-annual monitoring, entities should take reasonable measures to resume their normal compliance activities.

Settlement Agreement and Consent Decree Milestones and Reporting

The guidance also addresses administrative settlement agreements and indicates that EPA will generally not seek penalties for any missed milestones and that entities should use the notice procedures set forth in their agreements. Regarding civil judicial consent decrees, EPA will coordinate with the U.S. Department of Justice (DOJ) to exercise enforcement discretion regarding stipulated penalties for any routine compliance obligations that are missed due to COVID-19, but the guidance recognizes courts’ authority to exercise their own judgment.

Facility Operations

EPA expects entities to continue to manage and operate their facilities safely and EPA will focus on acute risks or imminent threats to human health or the environment in coordination with state or tribal authorized programs consistent with existing federal-state partnership guidance. Regarding enforceable permit limitations on air emissions and water discharges or other unauthorized releases, the guidance states that the entity should notify the implementing authority as quickly as possible with details of the noncompliance, and EPA will consult with authorized states or tribes to determine the appropriate response. Regarding RCRA waste handling, the guidance provides that so long as proper labeling and storage are implemented, waste generators who fail to transfer waste off-site within the time periods required by RCRA will not be deemed to be storage or disposal facilities and EPA will not escalate very small quantity generators or small quantity generators to a higher generator status due to the generator’s inability to arrange for shipment of hazardous waste due to COVID-19. The guidance does not apply to activities being carried out under Superfund and RCRA Corrective Action enforcement instruments and EPA has indicated that it will issue separate guidance to address these activities.

Public Water Systems

Despite the general flexibility provided in the guidance, EPA is heightening its expectations for public water systems in light of their critical importance to public health and continues to expect compliance with all applicable operations, maintenance and sampling requirements. EPA believes monitoring required under National Primary Drinking Water Regulations to be the highest priority in the event of any worker shortages, followed by nitrate/nitrite and Lead and Copper Rule monitoring, followed by contaminants for which a specific system has been non-compliant.

Other Components

The guidance includes a commitment to more tailored short-term No Action Assurance for facilities that are considered critical infrastructure, with Assistant Administrator Bodine serving as the arbiter of such determinations on a case-by-case basis. EPA notes that it will continue its oversight of state programs as practicable and will take COVID-19 into consideration when conducting such reviews. The guidance does not relieve any responsibilities for the prevention or response to, or reporting of accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste, or other pollutants.

Companies that may need to rely on this guidance should carefully and deliberately document the noncompliance and how COVID-19 is the cause of the noncompliance.

For additional information regarding the OECA guidance and general EPA enforcement procedures, please contact Brooks Smith or Patrick Fanning.

The Troutman Sanders Corporate team has published the following article on COVID-19:

In a press release dated March 25, 2020, the United States Securities and Exchange Commission (the “Commission”) Chairman Jay Clayton encouraged “public companies to provide current and forward-looking information to their investors . . .” while continuing to prioritize health and safety during the ongoing global pandemic. In conjunction with this statement, the Commission’s Division of Corporation Finance (the “Division”) released CF Disclosure Guidance: Topic No. 9 (the “Guidance”), which provides the Commission’s current views regarding disclosure and other securities law obligations that companies should consider with respect to COVID-19 and related business and market disruptions.

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The onset of the public health crisis caused by the spread of the coronavirus (COVID-19) has led to a global shortage of hand sanitizer. Businesses attempting to cope with new challenges presented by COVID-19 may be interested in retooling current manufacturing or other processes to begin developing hand sanitizer for external distribution or even internal use. In support of these efforts, the federal Food and Drug Administration (FDA) has issued guidance for both companies that are not currently authorized by the FDA to manufacture hand sanitizer companies and pharmacists in state-licensed, federal, or registered outsourcing facilities compounders that may be interested in producing hand sanitizer. Companies that adhere to this guidance and maintain sufficient documentation should be able to manufacture hand sanitizer for external distribution or internal use without enforcement exposure from the FDA.

According to the guidance, the FDA will not bring any action during the pendency of the public health crisis associated with COVID-19 against a company or compounder that produces hand sanitizer in accordance with certain requirements. These requirements, although slightly different for companies and compounders, detail the formula and process that must be used to ensure that hand sanitizer is properly made. According to the FDA guidance, only those companies and compounders that comply with all of the requirements detailed in the guidance will be shielded from FDA enforcement throughout the duration of the COVID-19 public health crisis.

As the central focus of the guidance documents, the FDA provides the formula and the percentage of different ingredients that must be used by companies or compounders to develop hand sanitizer. These ingredients, which must be United States Pharmacopoeia (USP) grade ingredients, and their percentage in the final product formulation include:

  1. Alcohol (ethanol) (80%, volume/volume (v/v)) in an aqueous solution denatured according to Alcohol and Tobacco Tax and Trade Bureau regulations in 27 CFR part 20. In addition to USP grade, alcohol used by companies may also be Food Chemical Code (FCC) grade.
    or Isopropyl Alcohol (75%, v/v) in an aqueous solution;
  2. Glycerol (1.45% v/v);
  3. Hydrogen peroxide (0.125% v/v); and
  4. Sterile distilled water or boiled cold water.

Companies or compounders may not include any other inactive or active ingredients other than those enumerated above because that may impact the quality or potency of the product.

In addition to the formula, the guidance also requires companies and compounders to pay particular attention to the amount of the ethanol or isopropyl active ingredient in the final product to ensure accuracy. Under this requirement, companies are required to keep a “simple record” of the controls taken to ensure that each batch of produced hand sanitizer complies with the formula prescribed by the FDA. Additionally, the guidance requires compounders and companies to prepare hand sanitizer under sanitary conditions and that equipment used during the preparation of the product is well maintained. For compounders, the FDA requires the preparation of the hand sanitizer to be done under “conditions routinely used by the compounder to compound similar nonsterile drugs.”

After production, both companies and compounders alike are required to appropriately label all of the produced hand sanitizer. The FDA has provided specific labels that correspond to the type of hand sanitizer and its intended use. These labels can be viewed here.

For companies, there are two additional requirements that must be followed under the guidance. First, companies must be able to implement and use the “most accurate method of analysis available for verification of alcohol content in samples of the finished drug product before each batch is released for distribution.”  These methods may include, but are not limited to, gas chromatography, alcoholometer, or other chemical analysis of at least equivalent accuracy. Second, companies interested in manufacturing hand sanitizer must also register their facility and list the products being temporarily produced in the FDA Drug Registration and Listing System (DRLS). The DRLS can be found here. After completing the registration and listing, companies will receive automatic confirmation from the FDA and will be able to immediately begin manufacturing and distributing hand sanitizer products.

For any questions related to the FDA’s guidance or properly registering a company on the DRLS, please contact Rob Browne.

California agencies are beginning to provide clarification and directives to guide regulatory compliance following local “shelter in place” orders to slow the spread of COVID-19 in the San Francisco Bay Area, and Governor Gavin Newsom’s state-wide “stay at home” order issued on March 19, 2020. While the State Department of Public Health is taking the lead in coordinating the state-level response, other regulatory agencies responsible for essential services and facilities have begun to issue their first formal directives related to environmental compliance and safety.

The emphasis of regulatory directives thus far are clear: all requirements related to critical infrastructure remain in effect, with special provisions for immediate notification if there are circumstances or current government directives that could impede timely compliance.

Drinking-Water and Wastewater Treatment. Protecting water supplies and ensuring continued wastewater treatment and service fall under the categories of “essential services” and “essential activities” vital to public health and safety, which the State Water Resources Control Board (Board) confirmed in a statement issued Friday, March 20. Compliance with all Water Board orders and requirements (including regulations, permits, contractual obligations, primacy delegations and funding conditions) remains mandatory.

The Board now requires regulated entities to provide immediate notice if it becomes apparent that a Board order or requirement cannot be met due to government directives or guidelines related to COVID-19. Notices must include the following information:

  • The specific Water Board order, regulation, permit, or other requirement that cannot be timely met,
  • The COVID-19 directive or guideline that creates the conflict,
  • 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.

Notices must be sent to the correct agency official, with responsibility for the relevant program or division; a list of contacts is available on the Board website.

Underground Storage Tanks (USTs). Requirements for operating and monitoring USTs remain in full effect. The Board issued recommendations to all UST stakeholders on March 19 urging adherence to all public health and safety guidelines, and reminding UST facility operators that even where releases are infrequent, critical UST leak detection, monitoring, and cathodic protection equipment must remain operational and monitored, with appropriate responses to all leak detection and monitoring alarms.

The Board stressed that all UST owners and operators should document any and all circumstances that lead to delays or other lapses in regulatory compliance. Documentation should include records that equipment remains operational and of all action taken in response to specific circumstances. If compliance cannot be achieved, owners and operators should, at a minimum, provide the following documentation:

  • Communication with designated operators and service technicians;
  • Cancellations and the reasons associated;
  • Records of public closures or restrictions; and
  • Any other relevant information showing the efforts made to maintain compliance to the extent possible.

The Board’s statement also provided guidance to Certified Unified Program Agencies (CUPAs) assisting UST owners and operators in returning to full compliance following the COVID-19 emergency, emphasizing that complete documentation of good faith efforts to remain in compliance may be considered: “CUPAs cannot waive statutory or regulatory requirements. CUPAs can, however, use enforcement discretion.”

Fuel Facilities and Providers. The California Energy Commission (Commission) issued a statement on March 17 to clarify that all elements of the fuel supply chain are considered essential services, not to be restricted by state or local orders regarding COVID-19. Facilities to remain fully operational include:

  • Refineries
  • Pipeline operators*
  • Distribution terminals
  • Tanker trucks
  • Fuel wholesalers
  • Electric vehicle chargers
  • Hydrogen refueling stations

The Commission issued the clarification after several local orders failed to list fuel suppliers as exempt from business closure requirements. Regulatory requirements remain in effect for these facilities.

*A full discussion of the status of federal and state regulations and enforcement related to pipeline facilities is available here.

Air Quality Enforcement. California Air Resources Board (CARB) Chair Mary Nichols issued a statement that, although the Board has taken action to protect the health and safety of the public and employees that may result in temporary delays, CARB regulations “continue to be in effect and deadlines apply.” The Board has postponed meetings and seminars, and staff will be telecommuting through April, noting that they will provide additional updates in the coming weeks, as CARB expects to implement new procedures to minimize disruptions and ensure continuity of operations.

Public Participation and Comment. The Governor issued an executive order suspending certain public meeting requirements to reduce the need for in-person meetings and allow agencies to continue to conduct business while minimizing risk to employees and public officials. However, several agencies have taken steps to ensure continued opportunities for public participation.

The Department of Water Resources announced a 30-day extension of deadlines for public comments on groundwater sustainability plans to May 15, 2020, and June 3, 2020.

The California Public Utilities Commission adopted new rules to facilitate public comments at its March 26, 2020 meeting, allowing members of the public to make verbal comments by telephone, or to have written comments submitted by email read aloud. The CPUC also issued letters to energy, water, sewer and communications companies, adding agency backing for voluntary moratoriums on service disconnections due to unpaid bills.

State and local agencies in California will continue to respond to rapidly changing circumstances, and we will provide relevant updates. For more information on changes in environmental compliance and policy affecting businesses and regulated entities with operations or interests in California, contact Angela Levin or Louise Dyble.

In light of the coronavirus disease (“COVID-19”), the Office of Personnel Management (OPM) issued guidance directing that all Federal Executive Branch departments and agencies within the National Capital Region (Maryland, Virginia, and Washington, D.C.) allow maximum telework flexibilities to all current telework eligible employees. This guidance applies to the headquarters of the agencies most involved in regulating hydroelectric projects, such as the Department of Energy (DOE), Department of the Interior (DOI), including the National Park Service (NPS), Fish and Wildlife Service (FWS), Bureau of Land Management (BLM) and Bureau of Indian Affairs (BIA), the Department of Agriculture (USDA), including the Forest Service (FS), and the National Oceanic and Atmospheric Administration (NOAA), including the National Marine Fisheries Service (NMFS). The Federal Energy Regulatory Commission (FERC), an independent agency within DOE, and the United States Army Corps of Engineers (USACE), housed within the Department of the Army, have also taken significant steps to respond to COVID-19.

Individual agencies have issued the following information on their response to COVID-19:

Department of Energy

On March 19, 2020, DOE announced that it would fill the Strategic Petroleum Reserve to its maximum capacity of 77 million barrels of American-made crude oil. In an initial step towards this end, DOE announced a solicitation for the purchase of an initial 30 million barrels and stated that additional solicitations will follow. Additional information on the solicitation is available here.

Federal Energy Regulatory Commission

FERC recently issued an order on its operations during the COVID-19 emergency, the details of which are available here.

United States Department of Agriculture

Forest Service

In areas of community spread of COVID-19, telework has been maximized at state staff offices, and many of FS’s essential activities, approvals, and field work are being accomplished remotely or in a manner that limits exposure. As of March 24, 2020, National Forests remain open; however, recreation services may be changed, suspended, or offered through alternate approaches. Local managers are tasked by FS to perform risk assessments for forest operations. Closure decisions will align with local city, county, and state actions to provide for human health and safety (i.e., quarantine, curfew, and other social restrictions). More information about National Forest operations and closures is available here.

Department of the Interior

On March 16, 2020, DOI’s Deputy Secretary Katharine MacGregor issued a memo directing DOI employees with signed telework agreements to telework until further notice. For non-telework eligible employees, the memo directs supervisors to implement staggered work schedules, social distancing, and other operational mitigation measures as suggested by the CDC  to safely deliver mission-essential functions.

Fish and Wildlife Service

As of March 24, 2020, many FWS facilities remain open and operating during normal hours. Please find an up-to-date list of FWS closures, including Wildlife Refuges and Visitor Centers, here.

National Park Service

Many of the National Parks are altering operations or closing to the public to respond to state Gubernatorial and Mayoral COVID-19 emergency orders. Specific parks have been closing on a case-by-case basis, and the latest information about National Park operations and closures is available here.

Bureau of Indian Affairs

Information about the COVID-19 response resources available from BIA to Tribal Members is available here.

Bureau of Land Management

On March 19, 2020, BLM issued a notice waiving entrance fees at BLM recreation sites and national monuments until further notice. DOI’s Secretary David Bernhardt stated that “[t]his small step makes it a little easier for the American public to enjoy the outdoors across the 245 million acres of public lands managed by the agency.”  The notice is available here

Following guidance from the CDC and recommendations from state and local public health authorities, however, BLM is temporarily restricting in-person public access to some visitor centers and public rooms at Oregon and Washington offices. BLM’s website directs members of the public to contact their local district office for additional information.

BLM has also suspended all meetings of its resource advisory councils and committees until further notice.

National Oceanic and Atmospheric Administration

NOAA is temporarily waiving observer requirements for vessels with Northeast fishing permits until April 4, 2020. NOAA’s COVID-19 related resources provide information for employees and contractors, which is available here.

United States Army Corps of Engineers

The USACE has closed many facilities outside of the National Capital Region, including its offices and visitors’ centers around the country. Further, USACE is limiting its regulatory program operations in Maryland, Pennsylvania and Washington, D.C. in response to COVID-19. Information about USACE’s facility closures and COVID-19 regulatory operations is available here.

The U.S. Court of Federal Claims (CFC) recently decided two cases related to flood events during Hurricane Harvey in Southeast Texas in 2017—one finding a taking by the United States Army Corps of Engineers (USACE) for flood control management and allowing landowner recovery, with the other holding that no taking occurred during the same event. As the incidence of flooding events may become more prevalent and unpredictable in a changing climate, these two decisions provide guidance for dam operators, including hydroelectric project operators, that conduct flood management activities in cooperation with, and sometimes at the direction of, USACE or other governmental entities.

The CFC is a special court that only hears monetary cases against the federal government, including cases that involve a “taking” under the Fifth Amendment of the U.S. Constitution. A successful takings claim requires a valid property interest and a government infringement upon that valid property interest.

Following devastating flooding that occurred during Hurricane Harvey, a series of lawsuits were filed with the CFC by numerous property owners in Houston, Texas, against USACE. These lawsuits claimed that USACE’s management of two dams during Hurricane Harvey (Barker and Addicks, which were originally constructed for flood control) caused the unlawful inundation of the landowners’ properties without compensation. The dams are managed during emergency flood events by a USACE manual, which dictates that the dams are to remain closed until a certain water elevation is reached and then the water is released downstream. The result of the downpour from Harvey was that upstream properties were damaged by rising water behind the closed dams, and the downstream properties were damaged by flowage once the dams were eventually opened. The lawsuits were bifurcated into two separate litigations—the upstream property owners and the downstream property owners. In its rulings, the CFC held that while USACE’s actions in response to Hurricane Harvey caused a taking of properties upstream of Barker and Addicks, its downstream releases did not.

Upstream Landowners–Dam Management Activities Caused a Taking

On December 17, 2019, the CFC held that the upstream flooding constituted a Fifth Amendment taking since the flooding resulted from USACE’s dam design and decision to keep the flood gates closed in order to protect properties downstream at the expense of the upstream properties.

The Barker and Addicks dams were constructed in the 1940s, and, according to the factual findings of the CFC, USACE knew since at least the 1970s that the reservoirs could swell beyond federal lands acquired behind these dams for purposes of flood control. USACE had analyzed this issue over time, thus not only “believed flooding beyond the extent of government-owned land was probable, it is unreasonable to contend otherwise.” As a result, the CFC found that the flooding was an intentional outcome and caused by USACE, which constituted an unlawful taking under the Fifth Amendment of the U.S. Constitution.

Downstream Landowners—No Right to Perfect Flood Control and No Taking

On February 18, 2020, the CFC held that the flooding downstream of these same Barker and Addicks facilities did not constitute a taking because downstream property owners were not entitled to the right of “perfect” flood control during such an extreme weather event. The downstream plaintiffs did not allege that the design and decisional operation of the reservoirs caused the flooding of their property, but rather that the water passing through USACE’s dams belonged to the federal government (and was therefore not flood water) and that USACE had no right to store its water on the downstream property owners’ lands.

In rejecting these arguments, the CFC explained that a valid property interest is created by state law or federal common law, and that neither Texas state law nor federal common law recognizes a right to perfect flood control in the wake of an Act of God. The CFC stated that “the government’s construction of the Reservoirs and the resulting benefit of flood control does not, by its nature, affirmatively create a cognizable property interest in perfect flood control. . . There is a fundamental difference between property rights and the benefits a government provides to its citizens.”

The CFC then turned to an explanation of USACE’s immunity for flood control procedures. Section 702c of the Flood Control Act of 1928 (FCA) provides that “[n]o liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place.” 33 U.S.C. § 702c (2018). The CFC explained that since the FCA’s enactment, courts have attempted to distinguish between what is and is not floodwater, quoting the Supreme Court’s precedent in Central Green Co. v. United States:

the text of the [FCA] directs us to determine the scope of the immunity conferred, not by the character of the federal project or the purpose it serves, but by the character of the waters that caused the relevant damage and the purpose behind their release. . . It is relatively easy to determine that a particular release of water that has reached flood stage is ‘flood water’ . . . or that a release directed by a power company for the commercial purpose of generating electricity is not . . . It is, however, not such a simple matter when damage may have been caused over a period of time in part by flood waters and in part by the routine use of the canal when it contained little more than a trickle.

531 U.S. 425, 434-436 (2001) (citations omitted).

With regard to the claims of downstream landowners, the CFC concluded that USACE was not storing government water on the downstream property owners’ property, but that the impounded and then released waters constituted flood water beyond what USACE could control.

Takeaway

These two cases highlight the highly fact-dependent nature of takings claims, and that even in identical events involving the same facilities, actions taken by the United States may or may not cause a taking under the Fifth Amendment.