Public commenter and chief counsel clash over ex parte rules and SB 965 during State Water Board public forum

A public forum commenter and the State Water Board’s chief counsel disputed the board’s rules for ex parte communications on June 17, highlighting confusion about the effect of Senate Bill 965 and administrative-procedure rules on communications about pending matters.

Public commenter Ray Tahir told the board he believes that the legislature intended SB 965 to permit disclosure-based ex parte communications in many permitting contexts and that staff’s guidance was inconsistent with that reading. "My position has been that ex parte communication is permitted as well as communication disclosed to other board members," Tahir said during public comment, arguing that disclosure (rather than a blanket prohibition) was the legislative intent.

Chief Counsel Michael Laufer disagreed, saying the board’s current guidance reflects the statute and the Administrative Procedure Act (APA), and that SB 965 created a narrow disclosure model that applies where the order does not identify named parties. "Senate Bill 965 applies in a very narrow context… that is where a water board, regional or state, is issuing waste discharge requirements or water quality certifications that do not name the parties involved," Laufer said. He told Tahir that if the disclosure model were already the default, there would have been no need for SB 965.

Tensions arose over statutory citations and scope. Tahir referenced what he described as public-law section 13287 and other provisions; Laufer replied that some citations (for example, Bagley-Keene and the APA section on prohibited ex parte communications) remain in effect and that words and context matter when applying SB 965. Vice Chair Doreen D'Adamo suggested Tahir review legislative history and advised that changing the statute would require legislative action.

Board Chair Joaquin Esquivel acknowledged the disagreement and suggested Tahir meet with Chief Counsel to pursue the matter in more detail; Laufer said he had offered meetings previously. The exchange did not result in any change to board guidance; the matter was a public comment and not an agenda item for action.

The record indicates a continuing difference of legal interpretation between a member of the public and board counsel on how SB 965 interacts with APA prohibitions on ex parte communications and the Bagley-Keene public meeting provisions. Board staff and counsel said they would continue to rely on the existing guidance and invited further private consultation to discuss statutory interpretation.