BILL ANALYSIS �
SB 965
Page 1
Date of Hearing: August 8, 2012
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
SB 965 (Wright) - As Amended: June 21, 2012
Policy Committee: Environmental
Safety and Toxic Materials Vote: 9-0
Governmental Organization 15-0
Urgency: No State Mandated Local Program:
No Reimbursable: No
SUMMARY
This bill allows ex parte communication between members of the
State Water Resources Control Board (SWRCB) or a regional water
board and an interested party regarding waste discharge
requirements, conditions of water quality certification, or
conditional waiver waste discharge requirements, provided
certain conditions are met.
FISCAL EFFECT
Minor, absorbable costs to the SWRCB and the regional boards to
manage ex parte communication requirements.
COMMENTS
1)Rationale . The author contends current restrictions on ex
parte communications too severely communication between board
members and interested parties, thwarts transparency and
accountability, and undermines public confidence in the
regulatory process. The author asserts it preferable that the
water boards follow an ex parte communication policy similar
to those of the Air Resources Board, the California Public
Utilities Commission and the Coastal Commission, which allow
communication between regulators and the regulated as long as
such communication is disclosed at public meetings.
2)Background. Current regulation prohibits communications
between water board members and other persons about a pending,
quasi-judicial matter if such communications occur in the
absence of other interested parties without notice and an
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opportunity for all parties to participate in the discussion.
According to the Office of the Chief Counsel of the SWRCB, an
ex parte communication is a communication to a board member
about a pending water board matter that occurs in the absence
of other parties to the matter and without notice and
opportunity for all parties to participate in the
communication. In very general terms, the Chief Counsel
explains the water boards' prohibition on ex parte
communication as follows:
a) If a proceeding is not pending or impending before a
water board, board members may communicate with the public
and governmental officials regarding general issues within
the water board's jurisdiction. Water board members may
also participate in information gathering efforts such as
tours or site visits.
b) If an adjudicative proceeding is pending or impending
before a water board, ex parte communications with that
water board's members regarding an issue in that proceeding
are prohibited.
c) If a rulemaking or other proceeding is pending or
impending before a water board, a board member may, if he
or she chooses.
The Chief Counsel explains the rationale behind the
prohibition on ex parte communication thusly:
Ex parte communications are fundamentally offensive 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. Finally, ex parte
contacts may frustrate judicial review since the record would
be missing such communications.
1)Support. This bill is supported by a long list of industry
groups who regularly have adjudicative business before the
water boards who believe they may receive better outcomes if
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they had more opportunities to communicate with board members.
2)There is no opposition formally registered to this bill.
Analysis Prepared by : Jay Dickenson / APPR. / (916) 319-2081