Category: Client Alerts

On June 4, President Trump signed an Executive Order (EO) urging federal agencies “to use their lawful emergency authorities” to expedite approvals for transportation and infrastructure projects throughout the country. In what is likely to have the most immediate and most effective impact, the EO specifically calls for streamlining environmental review and compliance under key environmental laws including the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA) and the Clean Water Act (CWA). The EO encourages federal agencies to expedite projects by taking advantage of emergency provisions in several federal laws that ordinarily mandate environmental review.  The EO provides local and state agencies, as well as private developers partnering on projects with those federal agencies, with a new tool to push for expedited project development.

According to the Trump Administration, the EO is necessary to stimulate economic growth in light of the downturn caused by the COVID-19 pandemic. The EO’s Purpose (Section 1) also notes the Trump Administration’s ongoing focus to “reform and streamline an outdated regulatory system that has held back our economy with needless paperwork and costly delays.”

Streamlining Federal Environmental Review and Compliance
The EO includes multiple provisions intended to accelerate infrastructure projects by streamlining compliance with key federal environmental laws, including NEPA, ESA and CWA. Section 6 of the EO notes that the Council for Environmental Quality has provided “appropriate flexibility to agencies for complying” with NEPA in emergency situations, including through existing regulations. The provisions allow “alternative arrangements” when necessitated by emergency circumstances to approve actions with significant environmental impacts without fully complying with NEPA’s requirements. The EO describes these emergencies broadly: “not only natural disasters and threats to the national defense, but also threats to human and animal health, energy security, agriculture and farmers, and employment and economic prosperity.”

Under the EO, all federal agencies have 30 days from the signing of the EO to identify “planned or potential actions to facilitate the Nation’s economic recovery” that may be subject to NEPA streamlining via alternative arrangements, statutory exemptions, categorical exclusions, coverage by prior NEPA analyses, or otherwise using “concise and focused” NEPA review. The EO also requires federal agencies to provide updated status reports every 30 days for the duration of the national emergency.

With regard to the Endangered Species Act (ESA), Section 7 of the EO requires all federal agencies to use the ESA regulation on consultation in emergencies to facilitate national economic recovery. Section 7 directs all agencies to identify planned or potential actions to facilitate economic recovery that may be subject to that emergency consultation regulation. Similar requirements are imposed in Section 8 of the EO with regard to the Clean Water Act and other statutes administered by the Army Corps of Engineers which facilitate use of emergency regulations and nationwide permits for projects under the jurisdiction of the Army Corps.

The EO directs authorities to expedite completion of the following authorized and appropriated projects: (1) highway and other infrastructure projects within the authority of the Department of Transportation, (2) civil works projects within the authority of the Army Corps of Engineers, and (3) all infrastructure, energy, environmental, and natural resources projects on federal lands (except Indian trust lands) within the authority of the Departments of Defense, Interior, and Agriculture.

Accelerating Delivery of Transportation and Infrastructure Projects
The EO also includes other directives to accelerate federal projects more broadly than just minimizing environmental review and permitting requirements. As provided in Section 2 of the EO (titled Policy), federal agencies are required to “take all reasonable measures to speed infrastructure investments and to speed other actions in addition to such investments that will strengthen the economy and return Americans to work,” while ensuring protection to people and the environment, as required by law.

Section 3 of the EO (titled Expediting the Delivery of Transportation Infrastructure Project) authorizes the Secretary of Transportation to use all emergency and other authorities to expedite the work and completion of “all authorized and appropriated highway and other infrastructure projects that are within the authority of the Secretary to perform or to advance.” Similarly, Section 4 of the EO authorizes the Secretary of the Army to speed up and complete “all authorized and appropriated civil works projects” within the authority of the Army Corps of Engineers.

The EO also provides for expediting the delivery of infrastructure and other projects on federal lands. Section 5 authorizes the Secretaries of Defense, Interior and Agriculture to expedite work on “all authorized and appropriated infrastructure, energy, environmental, and natural resources projects on Federal lands.” In addition, Section 9 requires all federal agency heads to identify with 30 days “all statutes, regulations, and guidance documents that may provide for emergency or expedited treatment … pertinent to infrastructure, energy, environmental, or natural resources matters,” as well as projects that may be subject to expedited treatment.  The EO directs federal agencies to use such statutes and regulations “to the fullest extent permitted to facilitate the Nation’s economic recovery.”

Impact of Executive Order on Existing and New Projects
The EO largely relies on existing laws and regulations to encourage expediting infrastructure projects to stimulate economic recovery. Nonetheless, the broad scope of the EO, as well as the 30-day deadlines for all federal agencies to identify opportunities for streamlining projects and activities, reflect a significant push from the executive branch to remove or reduce environmental review and permitting as obstacles to new investments.

Whether the EO succeeds in its goal of turning the COVID crisis into infrastructure opportunity will likely depend on the responses by the Department of Transportation and the Army Corps of Engineers. While the EO provides local and state agencies and private developer partners with a newly sanctioned federal environment for accelerating project development, all parties need to understand that the EO does not waive compliance with approval and permitting obligations. Instead, the EO allows the use of alternative procedures to comply with existing statutory requirements. Project opponents will continue to scrutinize compliance with environmental review procedures or processes that may be changed pursuant to the EO. Environmental organizations and community groups may also challenge the EO’s use of emergency provisions to bypass statutory protections for the environment in the name of economic recovery.

The United States Supreme Court issued a rare late-night ruling in South Bay United Pentecostal Church v. Newsom on May 29, 2020, denying an emergency request from a mega-church in Chula Vista, California to stay Governor Newsom’s Executive Order and four-stage reopening plan. In-person religious services were initially barred and then numerically restricted. In a 5-4 decision, Justices Ginsburg, Breyer, Kagan and Sotomayor voted to deny the injunction but did not write an opinion. Chief Justice Roberts concurred in denying the injunction and filed a two-page opinion. Justice Kavanaugh filed a three-page dissenting opinion, which was joined by Justices Thomas and Gorsuch. Justice Alito also dissented but did not write an opinion.

KEY TAKEAWAYS

1. Comparable Activities.  The different perspectives on what constitutes comparable secular activity as explained in Roberts’ concurring opinion versus Kavanaugh’s dissenting opinion indicates the central role this question will continue to play in these cases challenging COVID-19 restrictions.

2. Unlikely To Dissuade Plaintiffs.  Plaintiffs will likely continue to challenge restrictions on worship services because (1) the Court’s ruling only evaluated the availability of emergency injunction relief, (2) the ruling was a close 5-4 split decision and (3) the guidelines and rules in this nuanced area of law and policy continue to evolve. This case came to the Supreme Court as an emergency request to stay executive action so the Court’s finding that the plaintiffs did not meet the high bar for such an extraordinary request does not foreclose the possibility of plaintiffs eventually prevailing on the merits. The 5-4 balance could shift very quickly and plaintiffs are likely teeing up other cases for a return to SCOTUS.

3. Deference to Governmental Health and Safety Decisions.  Even though Roberts and Kavanuagh both recognize California’s compelling interest in preventing the spread of the coronavirus, they parted ways on the level of deference to afford policymakers when addressing this emergency. Roberts emphasizes that weighty decisions resting on medical science should be left to political officials, not an unelected federal judiciary, while the dissent views the orders as not narrowly tailored enough to achieve that interest. Moving forward, reopening decisions may be increasingly influenced by politics and economics rather than the scientific data and this in-turn may mean continued restrictions on worship services are more vulnerable to constitutional challenges.

CASE BACKGROUND

In response to the COVID-19 pandemic, on March 19, 2020 Governor Newsom signed Executive Order N-33-20 that restricted gatherings other than for essential work or activities, including a prohibition on all in-person religious worship services. Prior to the pandemic, South Bay United Pentecostal Church held religious services for 200-300 persons on average, for three to five services per day. On May 8, South Bay Pentecostal filed a lawsuit against Governor Newsom, as well as local San Diego County officials who had imposed similar restrictions, on the basis that such restrictions violated the rights of Free Exercise, Free Assembly, Free Speech, among other constitutional rights. South Bay Pentecostal sought a Temporary Restraining Order barring enforcement of the restrictions, which the District Court denied. The Ninth Circuit also denied South Bay Pentecostal’s request for a stay pending appeal. On Memorial Day, Governor Newsom amended the shelter in place restrictions to allow in-person religious services if attendance is limited to 25% of building capacity or a maximum of 100 attendees. South Bay Pentecostal sought a stay from the U.S. Supreme Court, which the Court denied in a 5–4 ruling.

CONCURRING OPINION

Comparable Secular Activities.  Roberts’ concurring opinion states that California’s guidelines “appear consistent” with the Free Exercise Clause of the First Amendment because “[s]imilar or more severe restrictions apply to comparable secular gatherings” which he specified as “including lectures, concerts, movie showings, spectator sports, and theatrical performances.” Roberts noted that the Order exempts or treats more leniently only dissimilar activities, such as grocery stores, banks, and laundromats. He explained that these are “dissimilar” to the religious services gatherings in question because they are activities “in which people neither congregate in large groups nor remain in close proximity for extended periods.”

Deference to Governments During Emergencies.  Roberts noted that the “precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement.” He focused on the “especially broad” latitude to be afforded to officials entrusted with protecting the health and safety of the people, particularly in times “fraught with medical and scientific uncertainties.” Those broad limits “should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.” However, it is also important to note that he stated the Order places “temporary” numerical restrictions on public gatherings to address the health emergency.

DISSENTING OPINION

Comparable Secular Activities.  Justice Kavanaugh’s dissenting opinion contends that churches are the same as numerous named businesses and should be treated the same. His comparable secular businesses include factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries. The dissent stated that these comparable businesses are not subject to the same 25% or 100 person attendance limit that is placed on religious services. By contrast, Roberts’ concurring opinion, the Ninth Circuit majority opinion, and the District Court’s ruling did not use these types of businesses as the point of comparison.  Instead, they looked to gatherings that had a communal aspect similar to religious services.

Deference to Governments During Emergencies.  Although Justice Kavanaugh states that California “undoubtedly has a compelling interest in combating the spread of COVID–19 and protecting the health of its citizens,” he states that the State’s Order is not narrowly tailored to achieve that interest – “What California needs is a compelling justification for distinguishing between (i) religious worship services and (ii) the litany of other secular businesses that are not subject to an occupancy cap.” In particular, Kavanaugh points out that the church has agreed to abide by the rules that apply to other comparable secular businesses, such as social distancing and hygiene. The dissenting opinion offers alternatives, including allowing religious gatherings without restrictions so long as they are subject to the same social distancing and other health requirements as other secular activities, or imposing reasonable occupancy caps across the board.

IMPACT ON LOCAL GOVERNMENT POLICY AND ACTIONS

The government has restricted cherished gatherings, both religious and secular, in this emergency situation to help keep people safe and healthy during a global pandemic. The Supreme Court’s ruling in this case rejects plaintiffs’ attempts to undermine these measures. However, as the COVID-19 pandemic continues to unfold and restrictions are eased or modified, the dissenting opinion offers a cautionary note as to the challenges  faced to ensure the distinctions made in reopening plans continue to pass constitutional muster.

On May 29, 2020, the Judicial Council approved revisions to Emergency Rule 9 regarding the statutes of limitations for civil cases during the COVID-19 pandemic. The revisions establish different tolling periods for claims that ordinarily have shorter statutes of limitations, such as claims under the California Environmental Quality Act (“CEQA”) and the State Planning and Zoning Law, and those with longer statutes of limitations. The revisions specify a definite end date to the tolling period. Under the revisions, claims that ordinarily have a statute of limitations period of 180 days or less, such as CEQA, will be tolled from April 6, 2020 until August 3, 2020. Claims with a statute of limitations period of more than 180 days will be tolled from April 6, 2020 until October 1, 2020. These changes bring clarity and certainty to causes of action that accrue during the state of emergency.

Why Changes Were Made
The Judicial Council adopted the original Emergency Rule 9 on April 6, 2020. At that time, the Judicial Council tolled statutes of limitation on all civil cases until 90 days after Governor Newsom lifts the state of emergency related to the COVID-19 pandemic. However, the Judicial Council received numerous comments that tolling the statute of limitations for cases, such as those under CEQA and the State Planning and Zoning law, for 90 days after the state of emergency is lifted, would likely interfere with construction financing and obstruct the State’s goal of building more housing in the state. In some cases, the order would have also significantly extended the statute of limitations even after the Governor lifts the state of emergency. The statute of limitations for CEQA cases typically run for 30 or 35 days and the statute for planning and zoning actions typically run for 90 days. The Judicial Council amended Emergency Rule 9 so that it is no longer tied to the end of the state of emergency declaration – an unknown date. The amended rule will end the statutes of limitations tolling on specified dates – August 3, 2020 for CEQA, land use and other actions with a statute of limitations of 180 days or less and October 1, 2020 for all civil causes of action with a statute of limitations that exceeds 180 days.

Why The Changes Are Important
The shortened and defined end of the tolling period for CEQA and land use projects under the revised Rule is more consistent with the Legislature’s determination that lawsuits challenging these public agency decisions should be filed soon after the agency action. With a defined ending of the tolling period, both plaintiffs and defendants will be able to calculate the specific deadline when claims must be filed and know with certainty when the time for filing a claim has passed. By resolving those questions, the amended Emergency Rule is helpful to developers and public agencies to analyze timeframe of litigation risk when looking to move forward with new projects as the current public health crisis abates.

The California Court of Appeals, in Willow Glen Trestle Conservancy et al. vs. City of San Jose et al., shed light on the circumstances in which subsequent environmental review is required for an approved project under the California Environmental Quality Act (“CEQA”).  The court confirmed that CEQA does not require the lead agency to conduct supplemental environmental review when it applies to a responsible agency for an approval after it has already approved a CEQA document for the project. Specifically, these applications are not considered “discretionary approvals” under CEQA.

Case Summary
In Willow Glen Trestle Conservancy, the City of San Jose, as lead agency, approved a mitigated negative declaration (“MND”) for its approval of the removal and replacement of a bridge crossing a creek (“Project”). After that approval, the City applied for a Streambed Alteration Agreement (“SAA”) from the California Department of Fish and Wildlife (“CDFW”), a responsible agency under CEQA. Petitioners argued that the City violated CEQA by failing to conduct supplemental environmental review before submitting the SAA application to CDFW. Based on the measures specified in the MND and the final SAA, the City determined that the Project would not have any significant impacts on fish or wildlife.

Court’s Analysis
Analyzing the relevant law and the facts of this particular case, the court rejected the Conservancy’s claims that the City’s act of seeking and accepting the SAA was a “discretionary approval of the project.” Since there was no discretionary action by the City, CEQA was not triggered. The court further explained that the Conservancy’s claim “attempts to equate any action in connection with a project” to be an approval for the relevant project. Such a ruling would, as the court stated, endlessly reopen the City’s consideration of the Project’s environmental impacts. Since the Conservancy did not challenge CDFW’s issuance of the SAA, the proper CEQA review of that action for a responsible agency was not an issue before the Court. However, CDFW relied on the MND approved by the City for the Project.

Standards for Supplemental Environmental Review
In reaching its decision, the Court reiterated well-established principles regarding the narrow standards under which CEQA supplemental review is required. Specifically, an agency may only perform supplemental environmental review if there is both “new information” resulting in new significant environmental impacts of the project and the agency is making a subsequent discretionary decision regarding the project. Because the City here was not making a subsequent discretionary decision, the standards for supplemental environmental review were unmet.

The legal force of the federal Clean Water Act continues to move in unpredictable directions with as much frequency as the waters the Act regulates. On April 21 and 23, two waves of change crashed into each other when, respectively, EPA issued its Navigable Waters Protection Rule (85 Fed. Reg. 22250) stating the Act does not cover groundwater and then the U.S. Supreme Court ruled in County of Maui v. Hawaii Wildlife Fund (No. 18-260) that the Act does sometimes cover discharges to groundwater. Also, while the Court rejected the Ninth Circuit’s expansive view that the Act applies whenever a discharge to groundwater is “fairly traceable” from a point source to a navigable water, the Court nevertheless adopted a new “functional equivalent” test based on a nonexclusive list of factors that could still capture discharges that arrive at navigable waters after traveling through groundwater “from” a point source. A third wave of change may also be on its way if 17 states, including California, convince the U.S. District Court for the Northern District of California that EPA acted arbitrarily and capriciously in promulgating the Navigable Waters Protection Rule to narrow the definition of “waters of the United States” (“New WOTUS Rule”). See California v. Wheeler, No. 3:20-cv-03005, May 1, 2020.

These changes continue the stormy legacy of Clean Water Act regulation and judicial interpretation that reached a peak in 2006 when the High Court ruled in Rapanos v. United States, 547 U.S. 715, 733 (2006) that navigable waters are not areas that are dry or only have transitory puddles but are also more than waters that are navigable in the traditional sense. Like three notable U.S. Supreme Court decisions before County of Maui – United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) and Rapanos, 547 U.S. at 739 – the Court in County of Maui again sought to clarify the scope of the Act but the Court’s decision does just the opposite. The decision acknowledges that it does not “clearly explain” when the Act applies, but it anticipates that lower courts and EPA will fill in the gaps as time goes on. Cty. of Maui at *10.

Key Takeaways and Implications

The Court’s decision prompts more questions than answers, forces parties to litigate in pursuit of certainty, and sets a new functional equivalent test that creates significant uncertainty.

• County of Maui initiates a new phase of Clean Water Act interpretation and application to a myriad of fact patterns. While the Court did not order the County of Maui to obtain a permit for its wastewater discharges, on remand, the district court may find a permit is required under the new functional equivalent test. Injection wells with similar characteristics may also require NPDES permits and even more difficult questions will arise when the test is applied to groundwater pollution from accidental or unplanned events – like pipeline ruptures – or surface impoundments.
• The decision expands the Act in a way that contradicts recent EPA guidance, which states that any pollution that moves through groundwater before reaching federal waters is not subject to the Act’s permitting requirements. In contrast, the County of Maui decision held that the Act applied when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge. (84 Fed. Reg. 16819, 16811, April 23, 2019). Consequently, the decision could render void compliance plans that are based on EPA guidance that exempts groundwater from permitting.
• Because the decision leaves gray areas about what is covered under the Clean Water Act: (1) environmental groups may bring litigation to challenge previously exempt discharges to groundwater, (2) regulated parties will find it difficult to predict whether they must seek a federal permit under the Court’s new test, and (3) costlier and more time-consuming site-specific analysis will need to be undertaken to determine whether injection wells or structures like pipes potentially cause a discharge to groundwater that is functionally equivalent to a discharge to navigable waters from a point source using the Court’s new test.
• Wastewater impoundment facilities now need to undertake numerous evaluations to determine (i) where such structures are located; (ii) whether they discharge to navigable waters; (iii) whether the discharge to groundwater could be construed to be from a point source; (iv) whether the discharges from groundwater to navigable waters require lengthy or short durations of time; (v) how the navigable waters are impacted; and (vi) whether dilution or mixing zone considerations apply to such discharges, particularly those to coastal waters.
• County of Maui and the May 1, 2020 challenge to the New WOTUS Rule may force EPA to revisit how it interprets the scope of the Act. EPA may issue guidance that further defines the Court’s functional equivalent test and EPA might need to go through formal rulemaking to resolve conflicts between the County of Maui decision and the New WOTUS Rule. For example, close proximity now must be a factor that EPA considers, rather than disregards, because County of Maui expanded the permit system to apply to a discharge through groundwater that is close enough to surface waters that it is functionally equivalent to a direct discharge. However, the New WOTUS Rule excludes features like wastewater recycling ponds even “[t]hough these features are . . . often located in close proximity to tributaries or other larger bodies of water.” (emphasis added)

County of Maui Case Summary

The Clean Water Act generally requires a National Pollutant Discharge Elimination System (“NPDES”) permit for the “discharge of any pollutant,” defined as “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. §§ 1311(a), 1362(12)(A). A point source is defined as “any discernible, confined and discrete conveyance, including but not limited to any … well … from which pollutants are or may be discharged.” Id. § 1362(14). The term “navigable waters” is defined in the statute as “waters of the United States.” However, “waters of the United States” is not defined.

The litigation in the County of Maui decision arose as a citizen suit when Hawai’i Wildlife Fund and other groups sued the County of Maui, alleging the County needed federal permits for injecting wastewater underground from where it migrated to the Pacific Ocean. The District Court granted summary judgment in favor of the citizen plaintiffs, finding that “a considerable amount of effluent from the wells ended up in the ocean” and that the discharge to “nearby groundwater was ‘functionally one into navigable water.’” Cty. of Maui at *4 (citing 24 F. Supp. 3d 980, 998 (D. Haw. 2014)). Notably, the District court cited Healdsburg, which involved a wastewater treatment plant that discharged into a rock quarry pit that provided “a continuous passage of water” to the Russian River through surface wetlands and the underground aquifer. Healdsburg, 496 F.3d at 995-997. Relying in part on Healdsburg, the Ninth Circuit affirmed the lower court in County of Maui, reasoning that the pollutants were “fairly traceable” from a point source (i.e., the injection wells) to a navigable water and more than a de minimis level of pollutants reached navigable waters. Hawaii Wildlife Fund v. Cty. of Maui, 886 F.3d 737, 748 (9th Cir. 2018). The High Court found the Ninth Circuit’s “fairly traceable” standard to be overly broad and vacated and remanded the case in accordance with its “functional equivalent” standard.

The facility at issue in County of Maui injected treated effluent from its wastewater treatment plant into four underground wells located about one half mile from the Pacific Ocean. The county had never been required to obtain federal permits in the past five decades (id. at *17), and, along with EPA under President Trump’s administration, argued that the pollution’s indirect path to the ocean was beyond the scope of the Clean Water Act’s permitting program.

Court’s New “Functional Equivalent” Test

The Court created a multi-factor test to determine when the Clean Water Act requires permits for discharges through groundwater. Though the Court’s test appears broad, the Court noted that “Whether pollutants that arrive at navigable waters after traveling through groundwater are ‘from’ a point source depends upon how similar to (or different from) the particular discharge is to a direct discharge.” Id. at *10. To determine the similarity between a direct discharge and one that travels through groundwater, the Court provided a nonexclusive list of factors with the first two factors being of most important:

• Transit time
• Distance traveled
• Nature of the material through which the pollutant travels
• Extent to which the pollutant is diluted or chemically changed as it travels
• Amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source
• Manner by or area in which the pollutant enters the navigable waters
• Degree to which the pollution (at that point) has maintained its specific identity

The Court rejected arguments that its test would “vastly expand the scope of the statute, perhaps requiring permits for each of the 650,000 wells like petitioner’s or for each of the over 20 million septic systems used in many Americans’ homes.” Id. The Court reached its conclusion based in part on what it viewed as EPA’s long-standing practice of applying the Act’s “permitting provision to some (but not to all) discharges through groundwater for over 30 years.” Id. The Court noted specifically that EPA had asked the Ninth Circuit to apply a more limited “direct hydrological connection” test in the case but that the Ninth Circuit did not do so. Id. at *6.

EPA Follow-up

The County of Maui decision and the May 1, 2020 challenge to the New WOTUS Rule may force EPA to revisit how it should interpret the scope of the Clean Water Act.

First, EPA may issue guidance that further defines the functional equivalent test the Court developed. Cty. of Maui at *10. However, EPA might need to go through public comment periods and more formal rulemaking to resolve the conflicts between the County of Maui decision and the New WOTUS Rule. For example, the New WOTUS Rule excludes from coverage groundwater drained through subsurface drainage systems, groundwater recharge areas, and waste treatment systems. (See e.g., 85 Fed. Reg. 22250, 22278-79, 22317-18, 22324, April 21, 2020.) Without focusing on which groundwaters might be jurisdictional, County of Maui expanded the NPDES permit system so that it applies to a discharge through groundwater that is close enough to surface waters that it is functionally equivalent to a direct discharge. The New WOTUS Rule, in contrast, specifically excludes features like wastewater recycling ponds even “[t]hough these features are . . . often located in close proximity to tributaries or other larger bodies of water.” Id. at 22324 (emphasis added). Close proximity now must become a factor that EPA considers, rather than disregards.

Second, EPA must not only fill the gaps that County of Maui created, it will also need to defend the current litigation against the New WOTUS Rule, California v. Wheeler (No. 3:20-cv-03005, N.D. Cal.). On May 1, 2020, 17 states (California, New York, Connecticut, Illinois, Maine, Maryland, Michigan, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Washington and Wisconsin, the Commonwealths of Massachusetts and Virginia, the North Carolina) sued EPA alleging, among other things, that the New WOTUS Rule improperly excludes ephemeral streams and many wetlands. The complaint alleges that EPA discarded the “significant nexus” standard for determining waters of the United States” that was set forth in Justice Kennedy’s concurring opinion in Rapanos and relied instead on the plurality opinion in Rapanos which did not command a majority of the Court’s Justices. EPA’s New WOTUS Rule, however, may not likely be as easy to enjoin as Obama’s 2015 Rule because, unlike the Obama Rule, the New WOTUS Rule is designed to remain within the EPA’s statutory and constitutional authority whereas the 2015 Rule was successfully enjoined because it allegedly exceeded EPA’s jurisdiction.

The May 1, 2020 litigation also raises significant issues that may force the Northern District to attempt to harmonize County of Maui and the New WOTUS Rule. One significant issue will be the New WOTUS Rule’s failure to rely upon a 2015 scientific study, “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” (2015 Connectivity Report). The relevance of the 2015 report, however, may be low given the Court’s decision in County of Maui. The report had concluded that at a sufficiently large spatial and temporal scales, all waters and wetlands are connected. 85 Fed. Reg. at 22288. This expansive view that all waters and wetlands are connected appears inconsistent with the interpretation of the Clean Water Act’s regulatory scope under County of Maui and other Supreme Court precedent.

What’s Next – Litigation Outlook and Compliance Tips

The County of Maui decision opens the door to a new wave of Clean Water Act litigation to interpret and apply the new functional equivalent test, first, to the specific injection wells in the County of Maui and then extending to myriad other fact patterns to determine if a permit is required. Additional complexity arises when the multi-factor functional equivalent test is applied to groundwater pollution from accidental or unplanned events – like pipeline ruptures – or from surface impoundments. For example, an accidental event is at issue in Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 644 (4th Cir. 2018), where the Fourth Circuit concluded the Act applied to a pipeline rupture that seeped through groundwater over a distance of 1000 feet or less to navigable waters. Upstate Forever’s reliance on the direct hydrological connection test is abrogated by County of Maui, but now that the Court has remanded Upstate Forever it is not clear whether the functional equivalent test will yield a different result.

Also, surface impoundments for wastewater have historically triggered litigation. For example, in Kentucky Waterways All. v. Kentucky Utilities Co., 905 F.3d 925, 933 (6th Cir. 2018) abrogated by Cty. of Maui, Hawaii v. Hawaii Wildlife Fund, No. 18-260, 2020 WL 1941966 (U.S. Apr. 23, 2020), environmental groups were unsuccessful in arguing that coal ash impoundments were subject to Clean Water Act permitting because the Sixth Circuit found that groundwater was not a point source but only a “conveyance” that carries pollutants. The question the County of Maui decision triggers is whether plaintiffs will try to argue that impoundments of water are point sources.

Going forward, from a compliance perspective, it seems clear that any facility operating a wastewater impoundment will need to undertake at least a few evaluations to address the following questions.

• Where are the structures located?
• Do they discharge to navigable waters?
• Could the discharge to groundwater be construed to be from a point source?
• Does the discharges from groundwater to navigable waters require lengthy or short durations of time?
• How are the navigable waters impacted?
• Do dilution or mixing zone considerations apply to such discharges, particularly those to coastal waters?

Executive Order N-54-20 (“EO N-54-20”), issued by Governor Newsom on April 23, 2020, changes the procedures for posting certain notices under the California Environmental Quality Act and extends the period for tribal consultation, both for a period of 60 days. EO N-54-20 specifically states that it does not extend any public comment periods on CEQA documents.

Certain Notifications Temporarily Not Required to be Physically Posted
Under normal CEQA requirements, certain types of notices need to be physically posted at the County Clerk. Due to shelter-in-place and related COVID-19 orders, many County facilities are closed or have limited public access. Therefore, under EO N-54-20, agencies will not be required to submit the following notices to the County Clerk for physical posting during the 60-day period following the issuance of EO N-54-20 which ends June 22, 2020.

• Notices of Preparation of EIRs
• Notices of Availability of Draft EIRs
• Notices of Intent to Adopt Negative Declarations
• Notices of Determination
• Notices of Exemption

Actions Required in Lieu of Physical Posting of Certain Notifications
EO N-54-20 requires agencies to take all three of the following actions for making the above-listed notices available to the public in lieu of physical posting. EO N-54-20 also encourages agencies “to pursue additional methods of public notice and outreach as appropriate for particular projects and communities.”

• “Post such materials on the relevant agency’s or applicant’s public-facing website for the same period of time that physical posting would otherwise be required;

and

• “Submit all materials electronically to the State Clearinghouse CEQAnet Web Portal;

and

• “Engage in outreach to any individuals and entities known by the lead agency, responsible agency, or project applicant to be parties interested in the project in the manner contemplated by the Public Resources Code sections 21100 et seq. and California Code of Regulations, Title 14, sections 15000 et seq.”

Suspension of Tribal Consultation Timelines
EO N-54-20 also suspends the timelines for required tribal consultation for projects that may impact tribal resources. Under CEQA, agencies must attempt to consult with tribes who may have an interest in a project by providing the tribes with notice of the project and an invitation to begin a statutorily proscribed consultation process. If the tribe does not respond within 30 days to the notice, the agency is free to assume that the tribe does not wish to consult. EO N-54-20 suspends this 30-day timeline for 60 days. In effect, agencies will be prohibited from considering the tribes to have waived consultation until the expiration of EO N-54-20 on June 22, 2020, plus any additional time that remains in the normal 30-day consultation period.

The California Judicial Council adopted eleven emergency rules (“Emergency Rules”) on April 6, 2020 to address the COVID-19 pandemic’s impact on California’s residents and the judicial branch. The Judicial Council acknowledges that operations of the California superior courts have been disrupted and delayed and the Emergency Rules are necessary to protect the rights of litigants and to address the long-term backlog of civil actions that is likely to occur.

The focus of this Legal Alert is on the Emergency Rules that developers and public agencies should be aware of because they result in a significant extension of the deadlines for filing CEQA and other claims challenging land use projects and approvals. Overall, the Emergency Rules address civil and criminal proceedings, unlawful detainers and foreclosures, juvenile proceedings and temporary restraining orders. The Emergency Rules temporarily toll deadlines for civil matters, encourage adoption of technology to conduct remote proceedings, prevent eviction proceedings and extend timeframes for certain temporary restraining orders.

Land Use Matters Impacted by New Rules for Civil Proceedings

Statute of Limitations

Emergency Rule 9 tolls the statute of limitations for all civil causes of action from April 6, 2020, to 90 days after California’s state of emergency related to the COVID-19 pandemic is lifted. By adoption of this Emergency Rule, the running of time in statutes of limitations is tolled or suspended. The time to bring the action will begin to run again when this tolling period ends (i.e., 90 days from the end of the state of emergency). Emergency Rule 10 extends by six months the five-year deadline for bringing a civil action to trial, and the three-year deadline for bringing a new trial. Emergency Rule 11 allows depositions through remote means.

Critically, Emergency Rule 9 results in a substantial extension of the typically short statutes of limitation that apply to CEQA lawsuits and other actions challenging the approval of new land use projects. CEQA actions generally need to be brought within 30 days after the filing of a notice of adoption of an EIR or MND. This short deadline is intended to provide developers and agencies with certainty that they can move forward with implementing a project without fear of future lawsuits. The Emergency Rules eliminate that certainty, in an effort to address the inconsistent manner in which courts around the state were allowing new lawsuits to be filed, as well as the resulting confusion for lawyers and litigants.

Temporary Restraining Orders

Land use challenges may also be impacted by provisions in other Emergency Rules. For example, Emergency Rule 8 extends the effect of any temporary restraining order set to expire during the state of emergency. That rule also requires courts to provide a means for filing new ex parte requests for temporary restraining orders, which are often used by project opponents to prevent a project from moving forward while a litigation challenge is pending.

Remote Proceedings

Emergency Rule 3 allows judicial proceedings and court operations to be conducted remotely until 90 days after the state of emergency is lifted. By allowing court proceedings to be conducted through video, audio and telephonic means, this provision should allow for resumption of many legal cases that were thrown into limbo by the near-complete shut-down of many courts around the state.

Next Steps

In adopting the Emergency Rules, the Judicial Council implores courts to “responsibly, carefully, stringently and strategically determine which urgent court services take priority.” Several of the rules require implementation by the California courts. The result of this implementation, therefore, might differ in different parts of the state. Anyone litigating in California – as well as developers and agencies moving forward with land use projects – should carefully consider the Emergency Rules and evaluate their potential effects on existing or potential litigation.

The federal Environmental Protection Agency and the Department of the Army (“agencies”) last week attempted to complete what the U.S. Supreme Court has asked them to do: define “waters of the United States” (“WOTUS”). The New WOTUS Rule is intended to put an end to the nearly 40 years during which “Congress has done nothing to resolve this critical ambiguity, and the EPA has not seen fit to promulgate a rule providing a clear and sufficiently limited definition of the phrase.” See Sackett v. E.P.A., 566 U.S. 120, 133 (2012) (Alito, J. concurrence). The purpose of the New WOTUS Rule is to define the jurisdictional reach of the federal government under the Clean Water Act.

This final rule replaces the 2015 Rule promulgated by the Obama Administration but enjoined in half of the states (excluding California). The New WOTUS Rule serves to memorialize judicial interpretations of WOTUS since 1985 and narrows what the Obama rule attempted to expand. The rule establishes categorical bright lines to define WOTUS as:

1. the territorial seas and traditional navigable waters;
2. tributaries of such waters;
3. certain lakes, ponds, and impoundments of jurisdictional waters; and
4. wetlands adjacent to other jurisdictional waters (other than waters that are themselves wetlands). (Preamble, § III at 87; § III.H.3 at 275.)

Twelve categories of waters are excluded from coverage, including groundwater, ephemeral streams and pools, puddles, groundwater recharge areas, prior converted cropland and waste treatment systems. (Id., § III.A.3 at 104 et seq.) It is important to note that the exclusion for groundwater does not apply to surface expressions of groundwater, such as where groundwater discharges to the channel bed and becomes baseflow in intermittent or perennial streams. (Preamble, § III.H.3 at 275.)

The Clean Water Act, which is the basis for the new rule, provides federal authority to regulate “navigable waters.” The term “navigable waters” is defined in the statute as “waters of the United States.” However, “waters of the United States” is not defined and has been narrowed by three U.S. Supreme Court decisions – United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (“SWANCC”), 531 U.S. 159 (2001) and Rapanos v. United States, 547 U.S. 715, 739 (2006) (Scalia, J., plurality).

The new rule is the second step the new administration has taken to define WOTUS in a way that it contends is consistent with Congressional intent and Supreme Court directives. Step One of the new rule, referred to as the 2019 Rule, became effective on December 23, 2019 (84 Fed. Reg. 56625) and repealed the Obama Administration’s 2015 Rule because, among other things, “it appear[ed] likely that the EPA ha[d] violated its Congressional grant of authority in its promulgation of the Rule.” (Id., § II.B.4 at 33.) Obama’s 2015 Rule relied upon a nine-function test which, according to the agencies, “[t]aken together, . . . meant that the vast majority of water features in the United States may have come within the jurisdictional purview of the Federal government.” (Id. at 32.)

The New WOTUS Rule is based on the premise that “not all waters are waters of the United States.” (§ II.A at 6.)  The CWA regulates both the “nation’s waters” and “navigable waters,” but Congress only prohibited “the discharge of pollutants to the navigable waters.” (Id., § II.B.1 at 15-16.) Thus, the agencies concluded that the terms “nation’s waters” and “navigable waters” are not synonymous (id.), and that “the ordinary meaning of the word ‘waters’” does not include “areas that are dry most of the year, and which may occasionally contain ‘transitory puddles or ephemeral flows of water.’” (Id., § III at 85-86, quoting Rapanos, 547 U.S. at 733.)

Notably, in this final rule, the agencies expanded the definition of tributaries from the proposed version of the rule to address ephemeral streams more comprehensively. EPA has estimated that ephemeral and intermittent streams make up approximately 59% of all streams in the United States (excluding Alaska), and over 81% in the arid and semi-arid Southwest (Arizona, New Mexico, Nevada, Utah, Colorado and California), according to a November 2008 EPA Report that relies upon a U.S. Geological Survey National Hydrography Dataset. Under the proposed version of the WOTUS rule, an ephemeral feature, like a dry channel, “at any point along a tributary network would have severed jurisdiction upstream of the ‘break’ because the waterbody would not convey surface water to a paragraph (a)(1) water year-round or continuously for extended periods of time. 84 FR 4173-74.” (Preamble, § III.A.3 at 99.) The final rule, however, was modified to recognize ephemeral features that have a surface water connection to downstream jurisdictional waters in a typical year. (Id. at 102, 137.)  Accordingly, a “tributary” under the new rule means a river, stream, or similar naturally occurring surface water channel that contributes surface water flow to the territorial seas or traditional navigable waters in a typical year either directly or through other jurisdictional waters or adjacent wetlands . (Final Rule 40 C.F.R. § 120.2; Preamble, § III.A.3 at 109.) The final rule excludes from jurisdictional waters ephemeral flow, namely “surface water flowing or pooling only in direct response to precipitation (e.g., rain or snow fall).” (Final Rule 40 C.F.R. § 120.2.) Thus, the deciding factor is always to determine if a “break” blocks or allows for the contribution of surface water flow to a downstream jurisdictional water in a typical year. (Preamble, § III.A.3 at 102-3.) A typical year is defined “to mean when precipitation and other climatic variables are within the normal periodic range (e.g., seasonally, annually) for the geographic area of the applicable aquatic resource based on a rolling thirty-year period.” (Final Rule 40 C.F.R. § 120.2.)

The new rule expressly covers perennial tributaries, which are defined “to mean surface water flowing continuously year-round” and intermittent streams, which are defined to mean “surface water flowing continuously during certain times of the year and more than in direct response to precipitation (e.g., seasonally when the groundwater table is elevated or when snowpack melts).” (Final Rule 40 C.F.R. § 120.2.) The term “certain times of the year” is intended to “include extended periods of predictable, continuous surface flow occurring in the same geographic feature year after year.” (Preamble, § III.A.2 at 94.)

Under all of these definitions, the determination of “surface water flow” will require a detailed analysis, using various tools including USGS maps, state and local knowledge or maps, aerial photographs, and models like “Flow (Raindrop) Path,” a GIS tool that allows a user to click a point on a map to signify a falling raindrop on that point, after which a flow path is drawn to estimate where the raindrop may flow. (Id., § III.D.3 at 157.)

Likely Challenges to the Rule

At this time, both environmental and industry groups have either filed new complaints or sought to supplement existing complaints to challenge the Step One Rule – the 2019 Rule – in whole or in part, and these challenges are pending in six district courts. (Preamble, § I.D at 41, see e.g., New York v. Wheeler, No. 19-11673 (S.D.N.Y., complaint filed Dec. 20, 2019); Wash. Cattlemen’s Ass’n v. EPA, No. 2:19-cv-00569 (W.D. Wash., supplemental amended complaint filed Dec. 20, 2019). The New WOTUS Rule, however, may not be as easy to enjoin as Obama’s 2015 Rule because, unlike the Obama Rule, the New WOTUS Rule is designed to reduce the scope of regulation whereas the 2015 Rule was successfully enjoined because it exceeded the agencies’ jurisdiction.

Effect of New WOTUS Rule

Under the New WOTUS Rule, some waters that were jurisdictional will become non-jurisdictional. However, it is too early to tell exactly what the impact of  the new rule will be, particularly in California where the Porter-Cologne Water Quality Act regulates all surface and ground waters. All permanent streams and tributaries – perennial and intermittent – continue to be covered under the new rule along with all ephemeral streams that have a surface flow connection in a typical year. Ephemeral streams without a surface flow connection in a typical year are not covered, but these are likely to be small headwaters of tributaries located upstream from perennial streams. Often such headwaters are located in elevated mountain regions, where development is unlikely and regulated point source discharges are more rare.

In practice, in California, the regulated community will be subject either to CWA requirements or those under Porter-Cologne. Enforcement varies considerably between the two. For illegal discharges to jurisdictional waters or other similar violations, enforcement under the federal CWA carries substantial daily penalties typically of $55,800 per day (after the penalty inflation adjustments in 40 C.F.R. § 19.4). In contrast, illegal discharges to non-jurisdictional waters or other similar violations would instead trigger state penalties, which are generally lower, ranging from approximately $15,000 to $25,000 per day under sections 13350 and 13385 of the California Water Code. Notably, violations associated with non-jurisdictional waters will not be subject to CWA citizen suits, which undoubtedly will provide new defenses for defendants who face such suits.

Also, the regulated community must keep in mind that many non-jurisdictional features – like dry channels or stormwater control features – can still be regulated as “point sources” under the CWA. The agencies explained “that a CWA section 402 permittee currently discharging to a jurisdictional water that becomes non-jurisdictional under this final rule would likely remain subject to the requirements of the Act. . . . [as] a point source to a ‘water of the United States.’” (Preamble, § III.H at 253, 269.)

Ultimately, the new rule forces states to regulate state waters because it establishes a boundary between “waters of the United States” and waters subject “solely to the State and tribal authority.” (Id., § II.E.3 at 73-74.) The new rule may provide more clarity, but it does so within a statutory framework that is complex and will remain so for decades to come.

(Advisory Note: anti-harassment policies should also be updated)

When Governor Gavin Newsom signed Senate Bill 778 into law in 2019, he extended by one year the deadline for employers to implement new harassment prevention training requirements. Senate Bill 778 addressed concerns relating to Senate Bill 1343, which substantially expanded state law training requirements and gave employers until January 1, 2020 to comply with the new training requirements, including additional course content and training of all employees — supervisory and non-supervisory. Senate Bill 778 gives employers an additional year, until January 1, 2021, to develop and implement new anti-harassment training that meets the new mandates outlined below. Anti-harassment policies should also be reviewed and updated in conjunction with new training programs.

What Are the New Harassment Prevention Training Requirements?
By January 1, 2021, California employers with five or more employees must provide:

• At least two hours of harassment prevention training to all supervisory employees once every two years
• At least one hour of harassment prevention training to all non-supervisory employees once every two years
• At least two hours of harassment prevention training to new supervisory employees within six months after assuming the supervisory position
• At least one hour of harassment prevention training to new non-supervisory employees within six months after the hire date

Beginning January 1, 2020, at least one hour (non-supervisory positions) or two hours (supervisory positions) of harassment prevention training to seasonal, temporary, or other employees hired to work for less than 6 months, by the time whichever event occurs first — 30 calendar days after the hire date or 100 hours worked.

What Should Employers Do Now?
Though the one-year extension grants temporary relief, all employers are required to implement training of their supervisors and employees during calendar year 2020. The new legislation also clarifies that employees who completed the requisite harassment prevention training in 2019 are not required to receive refresher training courses until 2021.

The myriad of new California anti-harassment laws make clear that employers must take affirmative steps to prevent harassment in the workplace and failure to do so can lead to increased liability. Employers should not simply “check the box” when it comes to anti-harassment policies and training programs. Instead, policies and training must meet the needs of each employer’s unique workplace, as well as the type of employees being trained. Meyers Nave offers harassment prevention policy drafting and training for supervisory and non-supervisory employees that satisfy the requirements mandated under SB 778, and that promote positive, respectful and inclusive workplace culture.

For more information about our anti-harassment policy development assistance and training programs, please contact Camille Hamilton Pating, Chair of our Workplace Investigations Practice Group at cpating@meyersnave.com.

California employers enter 2020 facing many new and changed laws after an exceptionally active legislative session in 2019. However, the most difficult decision that many employers will face is whether to take action to immediately comply with some new requirements or wait until recent legal challenges to a few new laws wind their way through the court system and perhaps lead to subsequent legislative redrafting. For example, as noted below, the January 1, 2020 implementation of AB 51 has been stayed by a December 30, 2019 court ruling and the January 1, 2020 implementation of AB 5 is in question due to a December 30, 2019 complaint that alleges the law is unconstitutional and requests a preliminary injunction against AB 5.

This Client Alert outlines five of the most important new laws and new compliance requirements for employers. Employers should consult with legal counsel to assess the potential application of these new legal developments to each employer’s unique circumstances. Meyers Nave offers advice, counsel, training and HR program development and implementation to help clients understand and comply with all new California labor and employment laws.

• AB 5 – Codifies “ABC” Test for Classifying Independent Contractors
• AB 51 – Limits Mandatory Arbitration Agreements
• AB 9 – Extends Timeframe for Filing DFEH Complaints
• AB 749 – Prohibits No-Rehire Provisions in Settlement Agreements
• AB 241, AB 242 – Requires CME and MCLE Implicit Bias Training

AB 5 – Codifies “ABC” Test for Classifying Independent Contractors
AB 5 is landmark legislation aimed at reducing worker misclassification by codifying the California Supreme Court’s 2018 decision in Dynamex Operations West v. Superior Court (4 Cal.5th 903), which adopted the three-factor “ABC” test to classify workers as employees or independent contractors. The ABC test also creates a rebuttable presumption that a worker is considered an employee, thus imposing the burden to prove otherwise on the employer. AB 5 exempts specified occupations from the purview of the “ABC” test. Please click here for a detailed explanation of the “ABC” test and how employers can overcome the presumption of employee status. The implementation of AB 5 is uncertain because Uber and Postmates filed a complaint on December 30, 2019 in California federal district court alleging that AB 5 is unconstitutional. The complaint asks for a preliminary injunction while the lawsuit is under consideration. Also in December 2019, several organizations representing freelance writers filed a lawsuit in federal court in Los Angeles alleging AB 5 places unconstitutional restrictions on free speech.

While much discussion relates to AB 5’s impact on gig economy companies, the new requirements could also apply to public agencies at least with respect to provisions of the Labor Code, Unemployment Insurance Code, and Industrial Welfare Commission wage orders that are applicable to public employers. AB 5 expands the applicability of the ABC test across most, but not all, of the Labor Code and Unemployment Code. There are exceptions, and generally if an exception applies the prior test under S.G. Borello and Sons, Inc. v. Department of Industrial Relations 48 Cal.3d 341 (1989) applies. Meyers Nave has performed an extensive analysis of AB 5, addressing Frequently Asked Questions including: (1) whether contract employers that provide services to public agencies (versus individually contracted workers) are excluded from AB 5’s purview, (2) how AB 5 impacts CalPERS and (3) which provisions of Assembly Bill 5 apply retroactively.

AB 51 – Limits Mandatory Arbitration Agreements
AB 51 prohibits an employer from requiring an employee to sign an arbitration agreement as a condition of obtaining or retaining employment, or any term or condition of employment. AB 51 does not void any existing mandatory arbitration agreement. Retaliation is prohibited, and the traditional approach of including an opt-out clause is ineffective in establishing consent. AB 51’s implementation on January 1, 2020 is up in the air. On December 6, 2019, the U.S. Chamber of Commerce and several organizations filed suit against the State of California to have AB 51 declared preempted by the Federal Arbitration Act. The lawsuit seeks both a preliminary and permanent injunction. On December 30, a court granted a temporary restraining order and a motion for preliminary injunction is set for hearing on January 10, 2020. If the court grants the motion then the new law will be prevented from going into effect until the case can be decided on the merits. The case is filed in the Eastern District of California as Chamber of Commerce of the United States v. Becerra, Case No. 2:19-cv-2456 KJM DB.

AB 9 – Extends Timeframe for Filing DFEH Complaints
AB 9 significantly extends the statute of limitations for an employee to file a complaint with the Department of Fair Employment and Housing (DFEH) from one year to three years. An employee asserting claims under the Fair Employment and Housing Act (FEHA) must first file a complaint with DFEH, the state agency charged with enforcing California’s civil rights laws. Before the passage of AB 9, the complaint with the DFEH had to be filed within one year of the alleged unlawful practice. (Government Code § 12960(d)).

AB 9 specifies that it “shall not be interpreted to revive lapsed claims.” This indicates that the new law will not apply retroactively to claims that arose prior to the effective date of the bill, but for which the prior one-year statute of limitations had already passed by December 31, 2019. However, AB 9 does not specify what happens to existing claims for which the prior administrative filing deadline has not lapsed by December 31, 2019. A review of the Senate Judiciary Committee analysis indicates legislative intent to extend the limitations period to any existing claims for which the prior one-year statute of limitations did not lapse by December 31, 2019; however, the retroactive impact of AB 9 is still unsettled.

AB 749 – Prohibits No-Rehire Provisions in Settlement Agreements
Under AB 749, settlement agreements between an “aggrieved person” (as defined under the bill) and their employer may no longer contain no-rehire provisions, or any term that would otherwise restrict the employee’s ability to obtain future employment with the employer or related parent companies, subsidiaries, divisions, affiliates, or contractors. Employers and employees may still enter into agreements to terminate the employment relationship; a severance agreement offered to an employee may contain a no-rehire provision if the severance is not offered as settlement of an employment dispute and the employee has not filed a claim against the employer. Moreover, employers are still permitted to end the employment relationship, or refuse to rehire the person, if there is a “legitimate non-discriminatory or non-retaliatory reason” for doing so. AB 749 applies to all agreements entered into on or after January 1, 2020.

AB 241, AB 242 – Requires CME and MCLE Implicit Bias Training
AB 241 requires continued medical education (CME) curriculum in implicit bias under the Medical Board, Physician Assistant Board and Board of Registered Nursing. AB 242 requires all court staff who interact with the public to complete two hours of training developed by the Judicial Council. It also requires attorneys to complete mandatory continuing legal education (MCLE) that includes training on implicit bias and the promotion of bias reducing strategies. Employers that employ the aforementioned professions should ensure that their employees receive the implicit bias training by the specified deadlines. Meyers Nave bias prevention training which meets all MCLE requirements.