Ex Parte Communications with the Water Boards Are Now Permissible

October 9, 2012, by Sarah Olinger

Public entities, businesses, and anyone else regulated by the State and Regional Water Boards have something new to cheer about: ex parte communications are now allowed in specified adjudicatory proceedings.  Governor Brown recently signed SB 965 into law, which allows interested persons to communicate with members of the water board while one of the following actions is pending: adoption, modification, or rescission of (1) state waste discharge requirements and federal NPDES permits, (2) conditional waivers of waste discharge requirements, and (3) conditions of water quality certifications.  However, the boards can choose to block further ex parte communications beginning 14 days before the proceeding occurs. Existing law prohibited all such communications at any time while an adjudication was pending before the boards.

There is one big catch, however. 

The interested person is required to report the ex parte communication within 7 business days to the respective board, and must specify the date, time, and location of the communication; whether it was oral or written; the identity of the board member(s) involved; any persons present during the communication; the content of the communication; and must attach any written, audiovisual, or other material used for or during the communication.  Failure to submit such report may subject the interested person to sanctions or other remedies available under the Administrative Procedure Act.  SB 965 adds a new section 13287 to the California Water Code.  Read the full text here.

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