BILL ANALYSIS Ó
SB 965
Page 1
SENATE THIRD READING
SB 965 (Wright)
As Amended August 29, 2012
Majority vote
SENATE VOTE : 33-1
ENVIRONMENTAL SAFETY 5-0
--------------------------------
|Ayes:|Alejo, Campos, Chesbro, |
| |Feuer, Bonnie Lowenthal |
| | |
--------------------------------
SUMMARY : Establishes allowable ex parte communications with
State Water Resources Control Board (SWRCB) and Regional Water
Quality Control Board (RWQCB) members and increases the public
access to the SWRCB and RWQCB public processes. Specifically,
this bill :
1)Allows ex-party communications with members of the SWRCB and
the RWQCBs as follows:
a) Defines "interested person" as:
i) A participant in the proceeding regarding a matter
before a board, or an agent, employee, or a person
receiving consideration for representing that
participant;
ii) A person with a financial interest in a matter
before a board, or an agent, employee, or a person
receiving consideration for representing that person;
and,
iii) A representative acting on behalf of a civic,
environmental, neighborhood, business, labor, trade, or
similar organization who intends to influence the
decision of a board member on a matter before the board.
b) Defines "ex parte communication" as an oral or written
communication between a board member and an interested
person about a matter within the board's jurisdiction,
which does not occur in a public hearing, workshop, or
SB 965
Page 2
other official proceeding, or on the official record of the
proceeding on the matter.
c) Allows ex parte communication if the contact is
initiated by an interested person and directed to a SWRCB
or RWQCB member regarding:
i) Waste discharge requirements;
ii) Conditions of water quality certification; and,
iii) Conditional waivers of waste discharge requirements
where the board action does not identify specific persons
or dischargers, but instead allows persons to enroll or
file an authorization to discharge under the action.
d) Requires a notice of the ex parte communication to be
provided to the SWRCB and RWQCBs record within seven days
of the communication.
e) Requires the SWRCB or RWQCB to place in the public
record any report of an ex parte communication involving
that board.
2)Requires California state boards and commissions to provide
adequate time for public witnesses who are testifying.
Requires that California state boards and commission to
provide at least twice the testimony time for a member of the
public who utilizes a translator. The requirement for
additional testimony time would not apply in those cases where
simultaneous translation services are required.
3)Requires the SWRCB and RWQCBs to publish the agenda notice in
English and Spanish, and they may publish the agenda notice in
additional language.
EXISTING LAW:
1)Prohibits communications between SWRCB or RWQCB members and
any other person about a pending, quasi-judicial matter if
such communications occur in the absence of other parties to
the matter without notice and an opportunity for all parties
to participate in the discussion.
SB 965
Page 3
2)Allows SWRCB or RWQCB members to have communications with the
public and governmental officials outside of a noticed public
meeting if the topic of discussion is a general issue within
the board's jurisdiction or a rulemaking or other regulatory
proceeding.
3)Requires, pursuant to the Bagley-Keene Open Meetings Act,
state agencies, boards and commissions to provide an
opportunity for members of the public to directly address the
state body on each agenda item before or during the state
body's discussion or consideration of the item.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, this bill would result in minor, absorbable costs to
the SWRCB and the regional boards to manage ex parte
communication requirements. The addition cost of providing SWRCB
and RWQCB agenda notices in Spanish would be minor and
absorbable by the water boards.
COMMENTS :
Need for the bill . According to the author, the ex parte
communication rules of the SWRCB and RWQCBs should be reformed
to allow more communication between decision-makers and
stakeholders. The author contends that the regulated community
should have greater opportunity to talk with board members who
have such significant power to influence their activities. The
boards should adopt rules similar to those used by other state
regulatory boards such as the Air Resources Board and the
California Coastal Commission, which allow communication between
regulators and the regulated as long as it is disclosed at
public meetings.
The author argues that, "The current rules in place at the State
ÝWater] Board severely restrict participation by affected
stakeholders in the state board permitting process, and prohibit
communication with Members of the State Water Board once a draft
permit or other notice of proposed action has been prepared and
released by staff of the water board. Instead, local
governments, businesses and other stakeholders are often limited
to just a few minutes of testimony before the board during a
formal hearing, despite the profound impact board decisions can
have on these regulated entities?
SB 965
Page 4
"These self-imposed ex parte rules adopted by the water boards
have resulted in a lack of transparency and accountability. A
strict prohibition against ex parte communications undermines
stakeholder confidence in the system."
Why limit ex parte communications ? Rules regarding ex parte
communications have their roots in constitutional principles of
due process and fundamental fairness. With public agencies, ex
parte communications rules also serve an important function in
providing transparency. Ex parte communications may contribute
to public cynicism that decisions are based more on special
access and influence than on the facts, the laws, and the
exercise of discretion to promote the public interest.
Ex parte communications are concerning in adjudicative
proceedings because they involve an opportunity by one party to
influence the decision maker outside the presence of opposing
parties, thus violating due process requirements. Such
communications are not subject to rebuttal or comment by other
parties. Ex parte communications can frustrate a lengthy and
painstaking adjudicative process because certain decisive facts
and arguments would not be reflected in the record or in the
decisions.
The Bagley-Keene Open Meeting Act (Act), set forth in Government
Code Sections 11120-11132, covers all state boards and
commissions. Generally, it requires these bodies to publicly
notice their meetings, prepare agendas, accept public testimony
and conduct their meetings in public unless specifically
authorized by the Act to meet in closed session.
Analysis Prepared by : Bob Fredenburg/ E.S. & T.M. / (916)
319-3965
FN: 0005753