Executive Order 2020-144: Restoring Water Service to Occupied Residences during the COVID-19 Pandemic

EXECUTIVE ORDER

 

No. 2020-144

 

Restoring water service to occupied residences during the COVID-19 pandemic

 

Rescission of Executive Order 2020-28

 

The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identified in humans and easily spread from person to person. There is currently no approved vaccine or antiviral treatment for this disease.

 

On March 10, 2020, the Department of Health and Human Services identified the first two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, 1976 PA 390, as amended (EMA), MCL 30.401 et seq., and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended (EPGA), MCL 10.31 et seq.

 

Since then, the virus spread across Michigan, bringing deaths in the thousands, confirmed cases in the tens of thousands, and deep disruption to this state’s economy, homes, and educational, civic, social, and religious institutions. On April 1, 2020, in response to the widespread and severe health, economic, and social harms posed by the COVID-19 pandemic, I issued Executive Order 2020-33. This order expanded on Executive Order 2020-4 and declared both a state of emergency and a state of disaster across the State of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, and the Emergency Powers of the Governor Act of 1945. And on April 30, 2020, finding that COVID-19 had created emergency and disaster conditions across the State of Michigan, I issued Executive Order 2020-67 to continue the emergency declaration under the EPA, as well as Executive Order 2020-68 to issue new emergency and disaster declarations under the EMA.

 

Those executive orders have been challenged in Michigan House of Representatives and Michigan Senate v. Whitmer. On May 21, 2020, the Court of Claims ruled that Executive Order 2020-67 is a valid exercise of authority under the Emergency Powers of the Governor Act but that Executive Order 2020-68 is not a valid exercise of authority under the Emergency Management Act. Both of those rulings are being challenged on appeal.

 

On June 18, 2020, I issued Executive Order 2020-127, again finding that the COVID-19 pandemic constitutes a disaster and emergency throughout the State of Michigan. That order constituted a state of emergency declaration under the Emergency Powers of the Governor Act of 1945. And, to the extent the governor may declare a state of emergency and a state of disaster under the Emergency Management Act when emergency and disaster conditions exist yet the legislature had declined to grant an extension request, that order also constituted a state of emergency and state of disaster declaration under that act.

 

The Emergency Powers of the Governor Act provides a sufficient legal basis for issuing this executive order. In relevant part, it provides that, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1).

 

Nevertheless, subject to the ongoing litigation and the possibility that current rulings may be overturned or otherwise altered on appeal, I also invoke the Emergency Management Act as a basis for executive action to combat the spread of COVID-19 and mitigate the effects of this emergency on the people of Michigan, with the intent to preserve the rights and protections provided by the EMA. The EMA vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement through “executive orders, proclamations, and directives having the force and effect of law.” MCL 30.403(1)–(2). This executive order falls within the scope of those powers and duties, and to the extent the governor may declare a state of emergency and a state of disaster under the Emergency Management Act when emergency and disaster conditions exist yet the legislature has not granted an extension request, they too provide a sufficient legal basis for this order.

 

Staying home remains the safest way to avoid the virus. Moreover, it is crucial that all Michiganders can access clean water in their homes and wash their hands thoroughly and regularly. Now more than ever, the provision of clean water to residences is essential to human health and hygiene, and to the public health and safety of this state. Many water utilities have already suspended water shutoffs during this difficult time. Due to the vital need for Michigan residents to have access to clean water at home during the COVID-19 pandemic, it is reasonable and necessary to require the restoration of clean water to residences across the State of Michigan throughout this state of emergency. And because it is also vitally important for state government to have up-to-date and accurate information regarding access to clean water, it is reasonable and necessary to require public water supplies to report on the status of water service within their respective service areas.

 

Executive Order 2020-28 established these necessary measures. This order extends and clarifies their duration, as it remains necessary for Michigan residents to have access to clean water and for our state government to have accurate information about such access. With this order, Executive Order 2020-28 is rescinded.

 

 

Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:

 

  1. A public water supply must restore water service to any occupied residence where water service has been shut off due to non-payment, so long as the public water supply does not have reason to believe that reconnection would create a risk to public health (e.g., due to cross-contamination). To facilitate the restoration of water service, a public water supply must immediately make best efforts to determine which occupied residences within their service areas do not have water service. For purposes of this order, a public water supply’s “service area” means the area for which the public water supply collects payment for water service. 
     
  2. If a public water supply determines that any occupied residences within its service area have had water service shut off for any reason other than non-payment or that reconnection would create a risk to public health, it must make best efforts to remedy such conditions and restore water service to such occupied residences as soon as possible.

 

  1. Any public water supply that has not submitted a report that meets all of the requirements described in section 3 of Executive Order 2020-28 must submit a supplemental report every 30 days until it submits a report that meets all of those requirements. The requirements are as follows:
     
  1. An account of what efforts have been made to determine which occupied residences within the public water supply’s service area do not have water service.

 

  1. The number of occupied residences within the public water supply’s service area that do not have water service as a result of a shutoff due to non-payment.

 

  1. The number of occupied residences within the public water supply’s service area that do not have water service as a result of any reason other than non-payment.

 

  1. A certification, if true, that best efforts have been exercised to determine which occupied residences within the service area do not have water service; that, to the best of the public water supply’s knowledge, no occupied residences have their water service shut off due to non-payment; that the public water supply has reconnected water service for all occupied residences that can be reconnected without creating a potential risk to public health; and that the public water supply has exercised best efforts to remedy the conditions that prevent reconnection due to a risk to public health.

 

  1. Nothing in this order abrogates the obligation of a resident to pay for water, prevents a public water supply from charging any customer for water service, or reduces the amount a resident may owe to a public water supply.

 

  1. Executive Order 2020-28 is rescinded.

 

  1. This order is effective immediately and continues until December 31, 2020 at 11:59 p.m.

 


Given under my hand and the Great Seal of the State of Michigan.