BILL ANALYSIS �
AB 2063
Page 1
ASSEMBLY THIRD READING
AB 2063 (Alejo)
As Amended April 30, 2012
Majority vote
WATER, PARKS & WILDLIFE 9-1 APPROPRIATIONS 15-1
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|Ayes:|Halderman, Bill |Ayes:|Fuentes, Harkey, |
| |Berryhill, Campos, Beth | |Bradford, |
| |Gaines, Williams, | |Charles Calderon, Campos, |
| |Roger Hern�ndez, Hueso, | |Davis, Donnelly, Gatto, |
| |Jones, | |Hall, Lara, Mitchell, |
| |Lara | |Nielsen, Norby, Solorio, |
| | | |Wagner |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Huffman |Nays:|Hill |
| | | | |
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SUMMARY : Allows 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)Clarifies that communications are not ex parte that are with
State or Regional Board staff, or limited entirely to a
procedure or practice, that is not in controversy, including a
request for a continuance regarding certain non-controversial
matters.
3)Allows ex parte communications for the adoption, modification,
or rescission of specified types of general permits if the
Regional or State Board member makes an after-the-fact report
of the communication to the board, on the record, at the next
hearing.
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4)Defines the general permits where ex parte communications will
be allowed as waste discharge requirements, conditions of
water quality, or conditional waivers of waste discharge
requirements where 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.
5)Allows interested parties 10 days to respond to ex parte
communications.
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 : According to the Assembly Appropriations
Committee, there would be minor, absorbable costs to the State
Board to develop reporting forms and to report ex parte
communications (special fund).
COMMENTS : State and Regional Board ex parte communications are
governed by the California Administrative Procedures Act
(California APA). As stated by a guidance memorandum issued by
the State Board Chief Counsel's office in 2008 (Memo), ex parte
rules have their roots in constitutional principles of due
process, fundamental fairness, and transparency in
decisionmaking. The Memo advises that 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. The Memo points out
that such communications are not subject to rebuttal or comment
by other parties and can frustrate a lengthy and painstaking
adjudicative process because certain decisive facts and
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arguments would not be fully reflected in the record or in the
decisions. Finally, the Memo states that ex parte contacts may
frustrate judicial review since the record would be missing such
communications.
The author states that it is an act of good government to allow
members of the public adequate opportunities to present their
views and opinions to the board members on matters that would
affect them. And 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 members to learn firsthand about issues.
Opponents maintain that this bill would roll back meaningful
conflict provisions without evidence showing that such
provisions are no longer needed to protect waterway 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.
The crucial issue presented by this bill is whether or not State
and Regional Board members can be active and fully engaged in
permit decisions if there is a prohibition on contacting them
outside of the public hearing process. It is important to note
that members of the public are not prohibited from presenting
their views to State and Regional Board members. The difference
is that the current ex parte prohibitions require them to do so
in public while this bill would allow private meetings but would
require those communications to be acknowledged after-the-fact
on the record.
The author accepted amendments in the Assembly Water, Parks and
Wildlife Committee that limited this bill's relaxation of ex
parte rules to permit issues that are "general" in nature.
General permits are not issued to individual person or entities
but instead contain detailed requirements set by the State or
Regional Board. General permits are like an "umbrella." Once
the general permit requirements are adopted, individual persons
are then able to apply to enroll or file an authorization to
discharge under the action. Limiting ex parte communications to
general permit actions was meant to address some of the due
process issues that could be raised by this bill if State or
Regional Board members were allowed to have private meetings
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regarding an individual's permit without that individual
present.
Analysis Prepared by : Tina Cannon Leahy / W., P. & W. / (916)
319-2096 FN: 0003694