BILL NUMBER: SB 965 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 8, 2012
INTRODUCED BY Senator Wright
( Coauthor: Senator
Blakeslee )
JANUARY 11, 2012
An act to amend Sections 13263, 13269, and 13377 of
add Section 13293 to the Water Code, relating to
water quality.
LEGISLATIVE COUNSEL'S DIGEST
SB 965, as amended, Wright. State Water Resources Control Board
and California regional water quality control boards:
Administrative Procedure Act. ex parte communications.
Existing law establishes the State Water Resources Control Board
and the California regional water quality control boards and
authorizes them to adopt regulations to carry out their powers and
duties and to conduct administrative adjudicative proceedings. The
Administrative Procedure Act establishes the conduct of
administrative adjudicative proceedings, which are defined as
evidentiary hearings for determination of facts pursuant to which a
state agency formulates and issues a decision. Existing law defines a
decision as an agency action of specific application that determines
a legal right, duty, privilege, immunity, or other legal interest of
a particular person.
This bill would establish that the issuance, denial, or
revocation of certain waste discharge requirements, permits, or
waivers by the State Water Resources Control Board and the California
regional water quality boards that apply statewide, regionwide, or
industrywide, and not to a person, as defined, are not within the
meaning of a decision, as defined under the Administrative Procedure
Act. prohibit a state board, regional board
member, or a person, other than a board staff member acting in his
or her official capacity, who intends to influence the decision of a
board member on a matter before the board, from conducting an ex
parte communication, as defined. This bill would provide that if an
ex parte communication occurs, the board member shall notify the
interested party that a full disclosure of the ex parte communication
shall be entered in the board's record. This bill would also provide
that certain communications cease to be ex parte communications, as
specified.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 13293 is added to
the Water Code , to read:
13293. (a) For the purposes of this section:
(1) "Ex parte communication" means an oral or written
communication concerning matters, other than purely procedural
matters, under the jurisdiction of the state board or a regional
board, pursuant to Article 4 (commencing with Section 13260) or
Chapter 5.5 (commencing with Section 13370).
(2) "Board" refers to both the State Water Resources Control Board
and the Regional Quality Control Boards.
(b) A board member, or a person, other than a board staff member
acting in his or her official capacity, who intends to influence the
decision of a board member on a matter before the board, shall not
conduct an ex parte communication, except as follows:
(1) If an ex parte communication occurs, the board member shall
notify the interested party that a full disclosure of the ex parte
communication shall be entered in the board's record.
(2) Communications cease to be ex parte communications when either
of the following occurs:
(A) The board member or the person who engaged in the
communication with the board member fully discloses the communication
and requests in writing that the communication be placed in the
board's official record of the proceeding.
(B) Two or more board members receive substantially the same
written communication, or are party to the same oral communication,
from the same party on the same matter, and a single board member
fully discloses the communication on behalf of the other board member
or members who received the communication and requests in writing
that it be placed in the board's official record of the proceeding.
(c) Notwithstanding Section 11425.10 of the Government Code, the
ex parte communications provisions of the Administrative Procedure
Act (Article 7 (commencing with Section 11430.10) of Chapter 4.5 of
Part 1 of Division 3 of Title 2 of the Government Code) do not apply
to proceedings of the state board or a regional water quality control
board to which this section applies.
SECTION 1. Section 13263 of the Water Code is
amended to read:
13263. (a) The regional board, after any necessary hearing, shall
prescribe requirements as to the nature of any proposed discharge,
existing discharge, or material change in an existing discharge,
except discharges into a community sewer system, with relation to the
conditions existing in the disposal area or receiving waters upon,
or into which, the discharge is made or proposed. The requirements
shall implement any relevant water quality control plans that have
been adopted, and shall take into consideration the beneficial uses
to be protected, the water quality objectives reasonably required for
that purpose, other waste discharges, the need to prevent nuisance,
and the provisions of Section 13241.
(b) A regional board, in prescribing requirements, need not
authorize the utilization of the full waste assimilation capacities
of the receiving waters.
(c) The requirements may contain a time schedule, subject to
revision in the discretion of the board.
(d) The regional board may prescribe requirements although no
discharge report has been filed.
(e) Upon application by any affected person, or on its own motion,
the regional board may review and revise requirements. All
requirements shall be reviewed periodically.
(f) The regional board shall notify in writing the person making
or proposing the discharge or the change therein of the discharge
requirements to be met. After receipt of the notice, the person so
notified shall provide adequate means to meet the requirements.
(g) No discharge of waste into the waters of the state, whether or
not the discharge is made pursuant to waste discharge requirements,
shall create a vested right to continue the discharge. All discharges
of waste into waters of the state are privileges, not rights.
(h) The regional board may incorporate the requirements prescribed
pursuant to this section into a master recycling permit for either a
supplier or distributor, or both, of recycled water.
(i) The state board or a regional board may prescribe general
waste discharge requirements for a category of discharges if the
state board or that regional board finds or determines that all of
the following criteria apply to the discharges in that category:
(1) The discharges are produced by the same or similar operations.
(2) The discharges involve the same or similar types of waste.
(3) The discharges require the same or similar treatment
standards.
(4) The discharges are more appropriately regulated under general
discharge requirements than individual discharge requirements.
(j) The state board, after any necessary hearing, may prescribe
waste discharge requirements in accordance with this section.
(k) The issuance, denial, or revocation of waste discharge
requirements pursuant to this section that apply statewide,
regionwide, or industrywide, and not to a person, as defined in
Section 11405.70 of the Government Code, are not within the meaning
of a decision, as defined in Section 11405.50 of the Government Code.
SEC. 2. Section 13269 of the Water Code is
amended to read:
13269. (a) (1) On and after January 1, 2000, the provisions of
subdivisions (a) and (c) of Section 13260, subdivision (a) of Section
13263, or subdivision (a) of Section 13264 may be waived by the
state board or a regional board as to a specific discharge or type of
discharge if the state board or a regional board determines, after
any necessary state board or regional board meeting, that the waiver
is consistent with any applicable state or regional water quality
control plan and is in the public interest. The state board or a
regional board shall give notice of any necessary meeting by
publication pursuant to Section 11125 of the Government Code.
(2) A waiver may not exceed five years in duration, but may be
renewed by the state board or a regional board. The waiver shall be
conditional and may be terminated at any time by the state board or a
regional board. The conditions of the waiver shall include, but need
not be limited to, the performance of individual, group, or
watershed-based monitoring, except as provided in paragraph (3).
Monitoring requirements shall be designed to support the development
and implementation of the waiver program, including, but not limited
to, verifying the adequacy and effectiveness of the waiver's
conditions. In establishing monitoring requirements, the regional
board may consider the volume, duration, frequency, and constituents
of the discharge; the extent and type of existing monitoring
activities, including, but not limited to, existing watershed-based,
compliance, and effectiveness monitoring efforts; the size of the
project area; and other relevant factors. Monitoring results shall be
made available to the public.
(3) The state board or a regional board may waive the monitoring
requirements described in this subdivision for discharges that it
determines do not pose a significant threat to water quality.
(4) (A) The state board or a regional board may include as a
condition of a waiver the payment of an annual fee established by the
state board in accordance with subdivision (f) of Section 13260.
(B) Funds generated by the payment of the fee shall be deposited
in the Waste Discharge Permit Fund for expenditure, upon
appropriation by the Legislature, by the state board or appropriate
regional board for the purpose of carrying out activities limited to
those necessary to establish and implement the waiver program
pursuant to this section. The total amount of annual fees collected
pursuant to this section shall not exceed the costs of those
activities necessary to establish and implement waivers of waste
discharge requirements pursuant to this section.
(C) In establishing the amount of a fee that may be imposed on
irrigated agriculture operations pursuant to this section, the state
board shall consider relevant factors, including, but not limited to,
all of the following:
(i) The size of the operations.
(ii) Any compliance costs borne by the operations pursuant to
state and federal water quality regulations.
(iii) Any costs associated with water quality monitoring performed
or funded by the operations.
(iv) Participation in a watershed management program approved by
the applicable regional board.
(D) In establishing the amount of a fee that may be imposed on
silviculture operations pursuant to this section, the state board
shall consider relevant factors, including, but not limited to, all
of the following:
(i) The size of the operations.
(ii) Any compliance costs borne by the operations pursuant to
state and federal water quality regulations.
(iii) Any costs associated with water quality monitoring performed
or funded by the operations.
(iv) The average annual number of timber harvest plans proposed by
the operations.
(5) The state board or a regional board shall give notice of the
adoption of a waiver by publication within the affected county or
counties as set forth in Section 6061 of the Government Code.
(b) (1) A waiver in effect on January 1, 2000, shall remain valid
until January 1, 2003, unless the regional board terminates that
waiver prior to that date. All waivers that were valid on January 1,
2000, and granted an extension until January 1, 2003, and not
otherwise terminated, may be renewed by a regional board in five-year
increments.
(2) Notwithstanding paragraph (1), a waiver for an onsite sewage
treatment system that is in effect on January 1, 2002, shall remain
valid until June 30, 2004, unless the regional board terminates the
waiver prior to that date. Any waiver for onsite sewage treatment
systems adopted or renewed after June 30, 2004, shall be consistent
with the applicable regulations or standards for onsite sewage
treatment systems adopted or retained in accordance with Section
13291.
(c) Upon notification of the appropriate regional board of the
discharge or proposed discharge, except as provided in subdivision
(d), the provisions of subdivisions (a) and (c) of Section 13260,
subdivision (a) of Section 13263, and subdivision (a) of Section
13264 do not apply to a discharge resulting from any of the following
emergency activities:
(1) Immediate emergency work necessary to protect life or property
or immediate emergency repairs to public service facilities
necessary to maintain service as a result of a disaster in a
disaster-stricken area in which a state of emergency has been
proclaimed by the Governor pursuant to Chapter 7 (commencing with
Section 8550) of Division 1 of Title 2 of the Government Code.
(2) Emergency projects undertaken, carried out, or approved by a
public agency to maintain, repair, or restore an existing highway, as
defined in Section 360 of the Vehicle Code, except for a highway
designated as an official state scenic highway pursuant to Section
262 of the Streets and Highways Code, within the existing
right-of-way of the highway, damaged as a result of fire, flood,
storm, earthquake, land subsidence, gradual earth movement, or
landslide within one year of the damage. This paragraph does not
exempt from this section any project undertaken, carried out, or
approved by a public agency to expand or widen a highway damaged by
fire, flood, storm, earthquake, land subsidence, gradual earth
movement, or landslide.
(d) Subdivision (c) is not a limitation of the authority of a
regional board under subdivision (a) to determine that any provision
of this division shall not be waived or to establish conditions of a
waiver. Subdivision (c) shall not apply to the extent that it is
inconsistent with any waiver or other order or prohibition issued
under this division.
(e) The regional boards and the state board shall require
compliance with the conditions pursuant to which waivers are granted
under this section.
(f) Prior to renewing any waiver for a specific type of discharge
established under this section, the state board or a regional board
shall review the terms of the waiver policy at a public hearing. At
the hearing, the state board or a regional board shall determine
whether the discharge for which the waiver policy was established
should be subject to general or individual waste discharge
requirements.
(g) The issuance, denial, or revocation of a waiver or waste
discharge requirements pursuant to this section that apply statewide,
regionwide, or industrywide, and not to a person, as defined in
Section 11405.70 of the Government Code, are not within the meaning
of a decision, as defined in Section 11405.50 of the Government Code.
SEC. 3. Section 13377 of the Water Code is
amended to read:
13377. (a) Notwithstanding any other provision of this division,
the state board or the regional boards shall, as required or
authorized by the Federal Water Pollution Control Act, as amended,
issue waste discharge requirements and dredged or fill material
permits which apply and ensure compliance with all applicable
provisions of the act and acts amendatory thereof or supplementary,
thereto, together with any more stringent effluent standards or
limitations necessary to implement water quality control plans, or
for the protection of beneficial uses, or to prevent nuisance.
(b) The issuance, denial, or revocation of waste discharge
requirements or permits pursuant to this section that apply
statewide, regionwide, or industrywide, and not to a person, as
defined in Section 11405.70 of the Government Code, are not within
the meaning of a decision, as defined in Section 11405.50 of the
Government Code.