BILL NUMBER: AB 2063 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 18, 2012
AMENDED IN ASSEMBLY APRIL 30, 2012
AMENDED IN ASSEMBLY MARCH 29, 2012
INTRODUCED BY Assembly Member Alejo
FEBRUARY 23, 2012
An act to add 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 prohibit a state board member, a regional board
member, or any interested person, as defined, 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 13294 is added to the Water Code, to read:
13294. (a) For the purposes of this section, the following
terms have the following meanings:
(1) "Interested person" means any of the following:
(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.
(2) "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.
(b) A board member, or any interested
person, shall not engage in an ex parte communication 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:
The following communications shall not constitute ex parte
communications:
(1) A communication between a regional or state board staff member
acting in his or her official capacity as an advisor to a state
board or regional board, and a member of that board.
(2) A regional or state board staff member acting in his or her
official capacity and any interested person.
(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)
(c) 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 within
seven days after the communication occurs
, or, if the communication occurs within seven days of the next
board hearing, to the board on the record of the proceeding at that
hearing .
(c)
(d) (1) The state board Office
of Administrative Law 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 , and
whether it was oral, written, or both .
(B) The identity identities of
each board member involved, the person or persons
initiating the communication , and the
person or persons receiving, any persons present
during the communication.
(C) A complete description of the content 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.
(iii) A copy of any written, audiovisual, or other material used
for or during the communication, which shall be attached to this
description.
(2) The state or regional board shall place in the public record
any report of an ex parte communication involving a member of that
board.
(d)
(e) 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 by electronic mail in a
timely manner that a communication described in this section
has been made a part of the record.
(e)
(f) If a party requests an opportunity to address the
communication within 10 days after the receipt of notice of the
communication : , the
party shall be allowed to comment on 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.
(f)
(g) 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 a communication that meets the requirements of
this section.