Below is a list of emerging approaches, followed by state/interstate-specific resource pages and supplemental information.

Note: States and interstates are continually adapting their COVID-19 response. In some cases, a state is managing COVID-19 resources, advisories, and adjustments to programmatic Standard Operating Procedures centrally, rather than through applicable departments or programs (i.e. state/interstate clean water programs). Therefore some programs and/or entities below may not have entries. As this will likely change, please check back regularly for updates.

Emerging Approaches

Enforcement

Priorities During Virus-related Disruptions: In the spirit of partnership, many states are requesting their facility premittees to maintain close and frequent communication; and that permitted entities focus on monitoring and documentation before, during, and after a virus-related operations disruption.
Force Majeure: Some states and legal experts are reminding any regulated facility and administrators to check whether force majeure is written into applicable state/NPDES/consent decree provisions.
- If provided, a force majeure clause is often only applicable if a facility contacts the permitting authority within a short period if a violation or potential violation is noticed by facility operators.
- States/interstates are (and should be) reviewing transparency and documentation requirements regarding forxe majeure claims, SNC, and emergency bypass events.
Enforcement Discretion: A number of states are now issuing enforcement discretion protocols in situations where noncompliance cannot be avoided due to personnel-related disruptions. Examples:
- Texas Commission on Environmental Quality is requesting facilities notify them with the following information:
  - Concise statement supporting request for enforcement discretion
  - Anticipated duration of need for enforcement discretion
  - Citation of rule / permit provision for which enforcement discretion is requested
- California Water Resources Control Board issued similar guidance when terms conflict with emerging directives or COVID-19 guidance:
  - 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.

Non-compliance Data: States are urging permitted entities to document as much as possible during suspected non-compliance events, especially facility efforts to minimize non-compliance. At a later date, this information will be critical during a state evaluation of whether (and the degree to which) enforcement actions are warranted. A total lack of data during a non-compliance event leaves states with no indication of the extent and duration that public health was potentially compromised.

Inspections

Several states are using or evaluating digital (Facetime, Skype, etc.) inspections in lieu of multi-staff overnight travel to conduct inspections. A barrier to this approach is cellular data quality and capacity in remote areas.

Operator Certification

Most states/interstate require operator certification exams and/or continuing education for facility operators. Many states are postponing or adapting seasonal exams. Example guidance from California here.

Preventative Maintenance of Infrastructure

Many communities and states are collaborating on public communications related to flushable vs. non-flushable items in response to a surge in disposal of materials that disrupt sewer systems.
- Washington has passed a law requiring conspicuous “Do Not Flush” labeling on the packaging of disposable hygiene and cosmetic products, giving municipalities and counties enforcement authority in addition to the state.
- New Mexico has used several forms of public outreach on the topic. Below are three examples:
  - A Press Release
  - A tweet
  - A local news story featuring state staff

Public Notice

Some CSO communities are posting swimming advisories in an abundance of caution, particularly as an increase of unflushable materials have contributed to sewer system backups. While novel coronavirus has been detected in untreated sewage, it is (a) not known that its presence in untreated sewage poses any public health risk, and (b) assumed that secondary wastewater and biosolids treatment deactivate the virus.