BILL ANALYSIS �
AB 2063
Page 1
Date of Hearing: April 24, 2012
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared Huffman, Chair
AB 2063 (Alejo) - As Amended: March 29, 2012
SUBJECT : State and Regional Water Boards: Ex parte
communications
SUMMARY : Would allow communications between persons interested
in a pending evidentiary hearing and a member of a Regional
Water Quality Control Board (Regional Board) or the State Water
Resources Control Board (State Board) in the absence of other
parties to the matter, if disclosed afterwards. Specifically,
this bill :
1)Defines an ex parte communication as an oral or written
communication between an interested person and a member of a
Regional Board or the State Board about a quasi-judicial
matter requiring board action.
2)Allows ex parte communications if the Regional Board member or
State Board member makes an after-the-fact report of the
communication to the board, on the record, at the next
hearing.
EXISTING LAW :
1)Prohibits communications between State or Regional Board
members and any other person about a pending, quasi-judicial
water board 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.
2)Allows State or Regional Board 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.
FISCAL EFFECT : Unknown
COMMENTS : On September 17, 2008, the State Board Chief Counsel
issued a sixteen page updated memorandum explaining to State and
Regional Board members what constitutes a prohibited ex parte
communication and the reasons for the prohibition (Ex Parte
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Memo). The Ex Parte Memo advises that rules regarding ex parte
communications are found in the California Administrative
Procedures Act (California APA) and have their roots in
constitutional principles of due process and fundamental
fairness and provide transparency regarding decisionmaking. Ex
parte communications are deemed "fundamentally offensive in
adjudicatory 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. Finally, ex parte contacts may frustrate
judicial review since the record would be missing such
communications."
The Ex Parte Memo emphasizes that ex parte rules should not
prevent board members from being active and engaged and that the
appropriate method for understanding an issue is to ask
questions on the record or request staff and interested persons
to address certain issues on the record so that a proper
foundation for the board decision can be established. In
addition, the Ex Parte Memo states that "staff assigned to
advise the Boards may provide assistance and advice to
interested persons and may help evaluate evidence in the record,
so long as the staff does not furnish, augment, diminish, or
modify the evidence in the record."
Supporting Arguments : The author states that, given the
expansive jurisdiction of the State and Regional Boards, it is
important that board members make informed decisions on issues
pertaining to water quality and the ways in which those
decisions will impact the varying interests of the public. The
author adds that as "an act of good government, members of the
public should be given adequate opportunities to present their
views and opinions to the board members on matters that would
affect them." Supporters state this bill "addresses a
long-overdue reform" because the "void left in the communication
process by the current ex-parte interpretation" eliminates the
"ability for water board leaders to learn firsthand about our
issues."
Opposing Arguments : Opponents state that this bill would roll
back meaningful conflict provisions without evidence showing
that such provisions are no longer needed to protect waterway
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health. Opponents point out that ex parte rules adopted by the
State Board already authorize communication with board members
on non-controversial procedural matters and allow advice from
State and Regional Board staff.
All boards are not created equal
This bill treats Regional Boards and the State Board equally
with regard to opening up ex parte access. However, Regional
Board members are volunteers who live in their communities while
State Board members are full-time gubernatorial appointees.
With regard to Regional Board members, ex parte rules can act as
a shield that prevents persons and companies with matters before
the Board from seeking out individual board members at their
places of business or public venues like restaurants and grocery
stores, or at home. Stating to an individual that "I can't talk
to you" is a much different proposition than "I won't talk to
you." Some comparisons have been drawn between Water Boards and
the Coastal Commission or the Fish and Game Commission in
arguing that ex parte rules should be changed. Members of those
commissions are also volunteers but they have more relaxed ex
parte rules. However, neither Coastal Commission members nor
Fish and Game Commission members are citizens drawn exclusively
from within a specific geographic who are then making decisions
which affect municipalities, businesses, the public and the
environment within that area.
Is it necessary to contact a board member outside of a
proceeding in order to be heard?
Currently parties to a proceeding are provided an opportunity to
present their point of view and facts, only they must do so on
the record before other parties who have an opportunity to
disagree. Supporters of this bill state that they are
dissatisfied with the issuance of permit conditions that they
feel are too burdensome and infer that allowing private meetings
with board members, which are reported later, will lead to a
different result. Some of the letters also appear to confuse
the issuance of regulations, which are quasi-legislative actions
which are not subject to ex parte rules, with the issuance of
permits, which are quasi-judicial actions that are subject to ex
parte rules. Or, some of the parties may believe that a
"regulation" is being issued when in fact a permit is being
issued.
All permits are not created equal
In some circumstances, particularly with regard to general
permits, the confusion between a permit and a regulation is
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understandable. General permits create an umbrella that feels
much more like a regulation. General permits do not name
individual parties but instead set out conditions that, if the
State or Regional Board determines are met, entitle an applicant
to coverage. Committee staff recommends allowing more
flexibility in the ex parte rules but only if it is limited to
broader situations and interests and distinguishes between State
Water Board staff, who are full-time professionals, and Regional
Water Board staff, who are volunteers. Committee staff suggests
amendments that would allow two categories of ex parte
communications, if reported on the record later. First,
Committee staff suggests allowing ex parte communications to
State Board Members if a general permit is at issue; and,
second, allowing ex parte communications to Regional Board
members if it is a municipal permit that is at issue.
Carving out a narrow exception for communications between
municipal entities and Regional Board members makes sense
because those communications are less vulnerable to the kinds of
abuse that could occur if private parties are allowed to lobby
Regional Board members outside of noticed proceedings. First,
staff of municipal entities are accountable to the public and
they are subject to "government in the sunshine" statutes such
as the Public Records Act. Not only would the communication
with the Regional Board member be subject to disclosure, but
internal communications at the local entity regarding such
communication could also be subject to disclosure. Finally,
municipal entities represent a broad public interest rather than
an individual interest. An ex parte communication by a person
other than the municipal entity regarding that entity's permit
may not raise the same due process concerns that an ex parte
communication regarding an individual's permit might raise.
On the other hand, the same protections would not be present if
ex parte rules were relaxed regarding general permits before
Regional Boards. Allowing business owners and their lobbyists
or legal representatives to directly approach Regional Board
members on water quality issues, which are technical in nature
and require difficult balancing between adequate environmental
and public health protection and feasibility and costs of
compliance, is not cured by limiting those contacts to general
permits which, although general, are being applied to very
specific and easily identifiable individual interests within the
Regional Board member's jurisdiction. Finding qualified
applicants willing to take on the difficult, uncompensated, and
often contentious work of being a Regional Board member has
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proven challenging for the Governor's office. Allowing those
members to be pursued in their communities by any person, or
their representative, who wants to engage on a permit before the
Regional Board, and then placing the onus on the Board member to
report all communication into the record may make it even more
difficult.
On a more fundamental level, what many of the supporters of this
bill are raising are concerns that there is inadequate time in
the public hearing process to educate Board members about their
issues and present factual information. If that is accurate,
then the public process needs reforms that will allow all
parties a better opportunity for presentation and rebuttal on
the record. This bill would provide an opportunity for greater
interaction but it would be outside of the hearing process and
therefore risks being one-sided and prejudicial, which is the
exact outcome that existing ex parte rules are meant to avoid.
Staff Amendments
The staff amendments, in mock up form, propose the following
changes:
Section 1 is deleted . Section 1 provided definitions that were
redundant to, or inconsistent with, the California APA. Any
definitions that were relevant to Section 2 are incorporated in
the language of that section.
Section 2 :
1) Incorporates the language from Section 1 that clarifies the
types of communications which are not considered "ex parte."
2) Specifies that ex parte communications to State Board members
regarding general permits and to Regional Board members
regarding municipal permits are permissible if later reported on
the record.
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3) Specifies that a copy of any ex parte written communication
must be included in the record and, if the ex parte
communication was oral, a memorandum providing the specifics of
that communication must be included. Requires all parties to a
proceeding and any person on the interested persons list to be
notified regarding an ex parte communication. Allows parties
ten days to request an opportunity to respond to the ex parte
communication. (All of the preceding language was modeled on
Section 11430.50 of the California APA.)
5) Strikes lines 18 through 23 on page 4. Properly submitted
written comments are already permissible under ex parte rules.
6) Specifies that the prohibitions in the California APA do not
apply to a communication that meets the requirements of this
bill.
REGISTERED SUPPORT / OPPOSITION :
Support
California Assoc. of Nurseries and Garden Centers
California Bean Shippers Association
California Building Industry Association
California Chamber of Commerce
California Cotton Ginners Association
California Cotton Growers Association
Support continued
California Food Processing Industry
California Grain and Feed Association
California Grape and Tree Fruit League
California League of Food Processors
California Manufacturers & Technology Association
California Metals Coalition
California Pear Growers Association
California Precast Concrete Association
California Rice Commission
California Seed Association
California State Association of Counties
California State Floral Association
Chemical Industry Council of California
City of Salinas
Coalition for Adequate School Housing
League of California Cities
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Lumber Association of California & Nevada
Monterey Peninsula Water Management District
National Federation of Independent Business
Nisei Farmers League
Pacific Egg and Poultry Association
Western Agricultural Processors Association
Western Growers Association
Western Plant Health Association
Western Wood Preservers' Institute
Wine Institute
Opposition
Coastkeeper Alliance
Sierra Club of California
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Analysis Prepared by : Tina Cannon Leahy / W., P. & W. / (916)
319-2096