BILL NUMBER: AB 2063 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 30, 2012
AMENDED IN ASSEMBLY MARCH 29, 2012
INTRODUCED BY Assembly Member Alejo
FEBRUARY 23, 2012
An act to add Sections 13293 and Section
13294 to the Water Code, relating to water quality.
LEGISLATIVE COUNSEL'S DIGEST
AB 2063, as amended, Alejo. Ex parte communications.
Under existing law, the Porter-Cologne Water Quality Control Act,
the State Water Resources Control Board and the 9 California regional
water quality control boards are the principal state agencies with
responsibility for the coordination and control of water quality in
the state. The act requires the state board to formulate and adopt
state policies for water quality control, and authorizes the state
board to hold any hearings and conduct any investigations in any part
of the state necessary to carry out the powers vested in the state
board, as specified. The act also requires the regional boards to
adopt regional water quality control plans in compliance with the
state policies. Existing law requires each regional board to conduct
certain proceedings, including, but not limited to, holding at least
6 regular meetings each calendar year.
Existing law, the Administrative Procedure Act, provides for the
conduct of administrative adjudication proceedings of state agencies.
Existing law generally prohibits ex parte communication including
communication during a pending proceeding, regarding any issue in the
proceeding, to the presiding officer by an employee or
representative of an agency that is a party to the proceeding without
notice and opportunity for all parties to participate, except as
specified.
This bill would provide that the ex parte communications
provisions of the Administrative Procedure Act do not apply to state
or regional board proceedings regarding water quality. This bill
would prohibit a board member, or any interested person, as defined,
from engaging in an ex parte communication, as defined, unless the
board member fully discloses and makes public the ex parte
communication by providing a full report of the communication to the
board on the record of the proceeding at the first hearing that
occurs after ex parte communication occurs. prohibit a
state board member, a regional board member, or any interested
person, from engaging in a communication that would be considered ex
parte under the Administrative Procedure Act. The bill would provide
that a communication is not ex parte if the communication is between
a state or regional board staff member acting in his or her official
capacity and any of the following: a state board member, regional
board member, or any interested person. The bill would also provide
that a communication is not ex parte if the communication is limited
entirely to procedure or practice, as specified. The bill would
provide that an otherwise prohibited ex parte communication is
permissible if the state or regional board member fully discloses the
communication, and the communication is in regard to waste discharge
requirements, water quality certifications, or conditional waivers
of waste discharge requirements, as specified. The bill would also
provide that an otherwise prohibited ex parte communication
is permissible if a regional board member fully discloses the
communication, and the communication is in regard to a municipal
separate storm sewer permit, as defined.
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 Section 13294, the following terms
shall have the following meanings:
(1) "A matter within a board's jurisdiction" means a
quasi-judicial matter requiring board action, pursuant to this
division.
(2) "Board" means the State Water Resources Control Board or a
regional water quality control board.
(3) "Ex parte communication" is an oral or written communication
between a member of a board and an interested person, about a matter
within the board's jurisdiction, which does not occur in a public
hearing, workshop, or other official proceeding, or on the official
record of the proceeding on the matter. The following communications
are not ex parte communications:
(A) A communication between a staff member acting in his or her
official capacity and a board member or an interested person.
(B) A communication limited entirely to procedural issues,
including, but not limited to, the hearing schedule, location,
format, or filing date.
(C) A communication which takes place on the record during an
official proceeding of a state, regional, or local agency that
involves a member of a board who also serves as an official of that
agency.
(D) A communication between a member of a board, with regard to an
action of another state agency or of a regional or local agency of
which the member is an official, and any other official or employee
of that agency, including any person who is acting as an attorney for
the agency.
(E) A communication between a nonvoting board member and a staff
member of a state agency where both the board member and the staff
member are acting in an official capacity.
(F) A communication to a nonvoting board member relating to an
action pending before a board, where the nonvoting board member does
not participate in that action, either through written or verbal
communication, on or off the record, with other members of the board.
(4) "Interested person" means:
(A) A participant in the proceeding regarding a matter before a
board, or an agent, employee, or a person receiving consideration for
representing that participant.
(B) A person with a financial interest, as described in Article 1
(commencing with Section 87100) of Chapter 7 of Title 9 of the
Government Code, in a matter before a board, or an agent or employee
of the person with a financial interest, or a person receiving
consideration for representing the person with a financial interest.
(C) 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.
SEC. 2. SECTION 1. Section 13294 is
added to the Water Code, to read:
13294. (a) A board member, or any interested person, shall not
engage in an ex parte communication unless the board member
that would be subject to the ex parte communication
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), except as provided by this section.
The following communications are not ex parte communications:
(1) A communication between a regional or state board staff member
acting in his or her official capacity and any of the following: a
state board member, a regional board member, or any interested
person.
(2) A communication limited entirely to a procedure or practice,
that is not in controversy, including a request for a continuance.
(b) An ex parte communication that would otherwise be prohibited
shall be allowed if paragraphs (1) and (2) apply:
(1) The subject and content of the ex parte communication is
initiated by an interested party and is directed to either of the
following:
(A) A state board member or a regional board member regarding the
adoption, modification, or rescission of one or more of the
following: waste discharge requirements pursuant to Section 13263 or
13377, the conditions of water quality certification pursuant to
Section 13160, or conditional waiver of waste discharge requirements
pursuant to Section 13269, where, in any case, the state board or
regional board action does not identify specific persons as
dischargers, but instead allows persons to enroll or file an
authorization to discharge under the action.
(B) A regional board member regarding a municipal separate storm
sewer permit under Section 402(p)(3) of the federal Clean Water Act
(33 U.S.C. Sec. 1344 et seq.).
(2) The state or regional board member
fully discloses and makes public the ex parte communication by
providing a full report of the communication to the board on the
record of the proceeding at the first hearing that occurs after ex
parte communication occurs.
(b)
(c) (1) The state board shall adopt, and provide to the
regional board for adoption, standard disclosure forms for reporting
ex parte communications which shall include, but not be limited to,
all of the following information:
(A) The date, time, and location of the communication.
(B) The identity of the person or persons initiating, and the
person or persons receiving, the communication.
(C) A complete description of the content of the communication,
including the complete text of any written material that was
a part of the communication. including:
(i) If the communication is written, the writing and any written
response to the communication.
(ii) If the communication is oral, a memorandum stating the
substance of the communication, any response made, and the identity
of each person from whom the board member received the communication.
(2) A The state or regi onal
board shall place in the public record any report of an ex
parte communication involving a member of that board.
(c) Communications shall not be prohibited ex parte communications
when fully disclosed and placed in a board's official record.
(d) Nothing in this section prohibits any person or any interested
person from testifying at a board hearing, workshop, or other
official proceeding, or from submitting written comments for the
record on a matter before a board. Written comments shall be
submitted by mail or delivered to a board office, or may be delivered
to the board at the time and place of a scheduled hearing.
(d) The presiding officer shall notify the parties to the
proceeding and all other parties subscribed to the notification list
kept by the state or regional board that a communication described in
this section has been made a part of the record.
(e) If a party requests an opportunity to address the
communication within 10 days after the receipt of notice of the
communication:
(1) The party shall be allowed to comment on the communication.
(2) The state or regional board has discretion to allow the party
to present evidence concerning the subject of the communication,
including discretion to reopen the hearing that has been concluded.
(e)
(f) 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 a board authorized
under this division a communication that meets the
requirements of this section .