(4^th Draft)

This issue paper addresses the topic of providing more certainty about state, local, and regional responsibilities in land use and environmental matters. The paper begins from the assumption that there should be a sharing of responsibilities between the different levels of government and that this will probably result in the shifting of responsibility among the different levels of government over some matters. The paper also assumes that one of the major objectives of a consolidated land use code should be to place decision making at the level of government at which it can be best exercised for the benefit of the public as a whole.

As does every other state, Washington has a complex governmental structure that involves a variety of state and local governments with different authority and responsibility. This governmental structure has been the subject of several studies over the years, one of the more recent being that of the Washington State Local Governance Study Commission, which issued its report in January 1988. The adoption of the Growth Management Act (GMA) has raised the question of governance. This is in part due to the fact that the GMA hints at the different roles that counties and cities should play under the GMA. In addition, by giving city and county decisions under the GMA a presumption of validity, the GMA also has implications for the relationship between state and local governments.

Although the GMA may hint at changing relationships between the different levels of government, state law retains a wide array of statutes that do not reflect this change. As a result, there are conflicting roles and responsibilities over the management of state resources. These conflicting roles and responsibilities can be better understood through an examination of the different roles government can exercise in the management and regulation of resources and activities. A second element is an understanding of the criteria that should be considered in evaluating whether an issue is of only local concern or is of concern beyond the jurisdictional boundaries of a local government.

A government may act in the role of a coordinator – to assure that those who have responsibility or the authority to act do so in a manner that does not conflict with each other.

A government may have the responsibility for establishing overall policy goals and objectives. This may be further implemented through a planning process that provides a framework for implementing those policy choices.

A government may take on the role of collecting and providing information to others. This can be provided in a variety of different ways, from statistical information to maps and studies. This information can also be used to monitor different systems or activities.

A common role of governments is to establish standards. These can take a variety of forms, from performance-based through strict numerical or quantitative requirements.

Another common function of governments is to help resolve disputes. The most common form this takes is the judicial system. In recent years, governments have established other dispute resolution mechanisms. These have been used to resolve disputes among private parties and between private parties and the government. They have also come into use to resolve disputes between different levels of government as well as between different departments within a single government.

Related to standard setting, governments often take on the responsibility to assure that the standards are followed. There is a considerable range of both regulatory and enforcement mechanisms. Regulation and enforcement is applied to both private and governmental entities.

Governments are often providers of service. Services that are provided range from public safety services such as police and fire protection through public utilities and services, such as roadways, public transportation, sewer, water, and garbage collection, to "discretionary" services, such as performing arts and sports facilities.

Some governments act as the public’s trustee for valuable assets. In Washington, the Department of Natural Resources is the trustee for the state owned forests and aquatic lands.

Governments frequently use funding and other incentives to encourage desired activities.

As distinct from its roles, each unit of government has an interest in governing its own affairs. To some degree, a unit of government’s sphere of interest is defined by its enabling process. There is to some extent a hierarchy of governments in the United States. At the state level, both city and county governments are established by the state and generally only have those powers granted to them either by the state constitution or by statute.

Although there is a general hierarchy of governance among governments, it is common for a government to either delegate or share its authority with other governments. There are several different approaches to this sharing of responsibility. A common approach for sharing responsibility is for the government with the authority to delegate a portion or all of that responsibility to another government. The delegation may impose a range of requirements on the receiving government. In some instances the delegation may be mandatory, in others it may be voluntary. Funding may be provided as part of the delegation. Delegation may also take the form of a transfer of authority with no limitations or requirements.

A second approach involves shared responsibilities, with the two governments working in partnership. This can create a more complex relationship between the two governments, because of the need to assign responsibility for different types of decisions.

Another issue of governance concerns the question of whether a government, even though it has the authority to act, chooses to exercise that authority. There may be a variety of reasons for this decision. The determination in part rests on whether the subject matter is one of only local concern or one that is more than local concern.

There are several different mechanisms in current use that deal with matters that affect more than one governmental entity. The following is a short description of some of those models.

As part of the original GMA adopted in 1990, the Legislature authorized the creation of regional transportation planning organizations (RTPOs). See, Ch. 47.80 RCW. An RTPO must include at least one county and have a covered population of at least 100,000 or include at least three counties. The RTPO must also include as members 60 % of the cities and towns in the region representing at least 75 % of the city and town population.

The RTPO is responsible for developing a regional transportation strategy, a regional transportation plan that is consistent with county-wide planning policies and GMA comprehensive plans and the state transportation plan, and develop in consultation with the Washington Department of Transportation (WSDOT) and public transportation operators, a six year transportation improvement program. In addition, the RTPO has responsibility for certifying that city and county transportation elements of GMA plans are consistent with county-wide planning policies, the regional plan, the requirements for the transportation element, and the RTPO planning requirements.

The RTPO is responsible for developing guidelines and principles to assist its member jurisdictions in developing their transportation elements. A transportation policy board is also required. It consists of representatives from major employers, WSDOT, transit districts, port districts, and member cities, towns, and counties.

The 1998 Legislature authorized the creation of watershed planning organizations on a watershed resource inventory area (WRIA) basis. WRIAs generally encompass more than one watershed and cross jurisdictional boundaries. Watershed planning may include one or more WRIAs and may be initiated only with the agreement of all of the counties within a WRIAs, the largest city, if any, within each WRIA, and the water supply utility obtaining the greatest amount of water from each WRIA. If a watershed planning effort is initiated, any tribe with reservation land in a WRIA must be invited to participate in the planning process. State agencies are directed to provide technical assistance. Participation by state agencies is determined by the initiating governments in consultation with the Governor.

Watershed planning must address water quantity issues within the planning area. This includes an assessment of water availability and use and strategies for increasing water supply. In addition, the watershed planning process may address instream flow issues upon majority vote of the initiating entities. Existing adopted instream flows may be changed only upon unanimous agreement of the initiating parties to request Ecology to modify the flows. If instream flows have not been adopted, a collaborative effort between Ecology and the planning unit is begun. The process has four years to attempt to achieve consensus, which means agreement of all of the initiating parties and a majority approval of other invited members of the planning unit. Ecology may establish instream flows if the process does not lead to consensus within the four year period. If consensus is reached, Ecology is directed to adopt the instream flows under the APA.

Watershed planning may also address issues of water quality and habitat. If the watershed plan is approved by consensus, it is submitted to each of the participating governments for a public hearing and approval or rejection. The plan may not be modified by the participating governments.

The Energy Facility Site Evaluation Council (EFSEC) was originally established under a different name in 1969. EFSEC has jurisdiction over large thermal energy facilities, oil and gas pipelines over a certain size and length, and electric power lines over a certain size and length. EFSEC is composed of representatives from a statutorily defined list of state agencies. In addition, any local government in which an energy facility will be located is a member for that project, or portion of a project.

An applicant for a covered energy facility applies to EFSEC for certification. After a lengthy review process, including environmental review, EFSEC makes a recommendation to the Governor that the certification either be granted or rejected. The Governor may accept or reject EFSEC’s recommendation, but the Governor may not modify the recommendation.

If a certification is approved by the Governor, EFSEC is the permitting agency, responsible not only for all building permits, but also for all state and local environmental permits. Local and state land use and environmental laws are superceded by the EFSEC. EFSEC must determine, however, whether at the time of application, the local zoning was consistent with the proposed use. Upon completion of the facility, EFSEC is responsible for regulating facility operations.

EFSEC’s conducts formal quasi-judicial hearings for the purpose of making its recommendation. A majority of EFSEC members is required to make a recommendation.

The Administrative Procedure Act (APA) establishes the process state agencies must follow in order to adopt rules of general application. Ch. 34.05 RCW. The basic APA process begins with notice from an agency that it is contemplating rule-making and asking for comments on the general issue. After reviewing those comments and conducting appropriate public involvement, the agency publishes a proposed rule and opens the proposal for public comment. At the conclusion of public comment, the agency reviews and responds to those comments, makes any changes it determines are appropriate, and publishes the final rule. If substantial changes are required after the public comment period, the agency must republish the rule for additional public comment.

The Forest Practices Board was established by the Legislature in 1974. It consists of the Commissioner of Public Lands, the directors of DCTED, Agriculture, and Ecology, an elected county legislative member, and six public members appointed by the Governor. At least one public member must be a small forest land owner and one must be an independent logging contractor.

The board issues forest practice regulations, procedures for voluntary resource management plans, and procedures for the collection and administration of forest practices fees. The board adopts forest practice rules pursuant to the APA. Forest practice rules relating to water quality are developed and adopted jointly with Ecology.

The Growth Strategies Commission recommended that counties should be the smallest geographic areas for regional planning. It suggested the regional transportation planning process provided for in the RTPO statute should be looked to as a model for multi-county regional planning in other areas. It also recommended that regional fair-share plans or processes should be pursued to assure that regional and state public services were equitably distributed throughout a region.

A specific example of issues that have impacts beyond the strictly local are essential public facilities. Attached to this paper as Appendix __ is a more detailed examination of the issue.

There are two basic questions that the discussion of sharing responsibility between levels of government raises – what are the issues over which responsibility should be shared; and what is the best means of making those decisions? With respect to issues, this paper divides the issues into three broad categories: (1) issues of only local concern; issues of greater than local concern, i.e. regional or statewide; and (3) issues of statewide concern. With respect to the decision making process, one key criteria is whether the process will lead to a decision. Particularly when addressing issues involving multiple jurisdictions and interests, reaching a decision on some issues can sometimes appear to be impossible.

Establishing criteria for determining matters that are of only local concern is not a simple task. Because of the mobility of contemporary society and the advance of technology, there are many issues that may at first review appear to be matters of only local concern, but upon reflection have implications beyond the borders of the local government.

The SEPA framework for the built and natural environment presents an example that may not be satisfactory. Although the built environment would generally seem to be a matter of only local concern, there are elements of the built environment – such as roads, energy facilities, and public utilities – that have impacts beyond the jurisdictional boundaries and that also impact the natural environment.

The challenge in developing criteria for determining matters that are of greater than local concern is to develop criteria that will discard some issues. As described in the discussion in III. A. 1. above, much of contemporary life results in impacts beyond the jurisdictional boundaries of a local government.

These areas are those where there are multi-jurisdictional agreements and regulatory authority to conserve and protect important state interests including: substantial health and safety issues; ensure essential public facilities and unwanted land-uses are sited; protect critical environmental and natural resources; conserve valuable energy resources; and mediate cross-jurisdictional impacts on ecosystem resources.

In addition to matters that are of greater than local concern, which may be addressed at a regional level, there are also matters that are of statewide concern. These are generally issues with significant public policy implications that affect the entire population of the state and for which even regional decision making might be deemed to be inappropriate.

Governments are required to make decisions that range from establishing policy, to interpreting statutes, rules, and ordinances, to reviewing specific projects. The decision making mechanism appropriate for these different types of decisions should vary, depending both on the nature of the decision and the issues and parties involved. In many cases, however, the decision making processes used may not be tailored for the particular decision.

The traditional model for making decisions on matters of greater than local concern is for a state agency with responsibility to adopt rules implementing legislative policy. Depending on the nature of the legislative directive, the rules can range from guidelines to prescriptive requirements. If permitted by the authorizing legislation, rules may also provide for delegation of the state agency’s responsibilities to another governmental entity. Although there is an opportunity for public comment on the proposed rule, the APA process leaves the decision on what action to take within the authority of the agency.

Coordinated decision making could be used for specific projects either on an ad hoc basis or through procedures prescribed in a framework.

This is essentially how collaborative processes now occur. Someone raises the idea, other parties decide whether to participate, and they work to address the issues. Oregon and other states encourage such efforts through technical assistance, both with convening and by providing funds for facilitation services. The default decision processes if parties cannot agree whatever other options to negotiation that the parties have, such as litigation or political action to change policy or leadership.

The state or county (or the governments of a region) could establish a framework that promoted negotiated decisions for a specific type or types of projects, such as essential public facilities – or a subset of them. The framework would specify how coordinated decision making would be convened, who would have standing to participate, what issues were negotiable or nonnegotiable, and how decisions would be made if the participants could not agree. An example of this approach is the Wisconsin statute that promotes negotiations over the siting of solid and hazardous waste facilities. From 1982 when the act took effect in 1982 through June 1997, parties had reached agreement in 54 cases. They had been assisted by mediators in eight of those cases and they had invoked the default decision process three times for a total of 57 decisions. (See below [appendix ___] for a discussion of default procedures.)

For issues of greater-than-local concern the Commission has contemplated a recommendation that authority for rule making be assigned to the state agencies and local governments with an interest in the regionally focussed issues that would be the subject of rule making.

The authorizing legislation which enabled a consortium of agencies and local governments to develop and adopt a rule for regional purposes would also specify procedures for convening the process and for a default decision process if the governments could not agree. Negotiated rule making, which the Administrative Procedure Act encourages agencies to use when developing rules, might be modified to serve as a model for structuring this form of coordinated decision making.

[RESERVED]

A special instance of coordinated rule-making involves issues among different state agencies. In Washington, there is no defined structure for resolving disputes among different state agencies over matters of policy or implementation of policy. The basic institutions of state government – the Legislature, the Governor, and the Judiciary – are the mechanisms that are currently available to resolve disputes and achieve consistency between different state agencies.

In the last several years, there have been a number of different efforts at the state level to institute procedures designed to address this issue to one degree or another. Governor Lowry, by Executive Order, directed state agencies involved in disagreements to bring the matter to the director of the Office of Financial Management. The Director had the authority to resolve the dispute, or if the need arose, to refer the matter to the Governor. Governor Lowry also encouraged the use of alternative dispute resolution mechanisms, both to resolve disputes between state agencies, but also between the state and other parties. This process, however, does not result in a sharing or coordination of responsibility, but only deals with solving a problem that has arisen through another decision-making process.

Provides the strongest statement of state policy

Cons:

Difficult to accomplish through legislation.

With appropriate representation, provides broad base of support

Requires time and resources on the part of all participants

Allows agencies with expertise to make decisions

Success of result dependent upon the process established by agencies

Well understood process

Provides a means for public participation and comment

Time consuming

Decision rests with a single entity rather than being a collaborative process

Allows all interested parties an opportunity to participate in the process on a more equal basis

Shares some of the decision-making responsibilities

Can be time-consuming

Requires all parties with an interest to be involved and to participate

Recognizes that responsibility should be shared among different levels of government

Emphasizes a collaborative approach

Not as well understood as some other decision-making mechanisms

May require more resources, particularly on the part of state agencies, if there are multiple processes

Involvement of the public in the process needs to be addressed

Focus on Areas of Greater Than Local Concern. The switch in focus puts the emphasis on both local and state concerns. These areas are those where there are multi-jurisdictional agreements and regulatory authority to conserve and protect important state interests including: substantial health and safety issues; ensure essential public facilities and unwanted land-uses are sited; protect critical environmental and natural resources; conserve valuable energy resources; and mediate cross-jurisdictional impacts on ecosystem resources.

Consolidate state agency input and responsibilities on the local level. State agencies should coordinate their environmental and land-use planning efforts within local jurisdictional service areas formed by local governments, with an emphasis on multi-jurisdictional planning areas. The process for formation would be voluntary with incentives to develop greater state agency cooperation. The process would be similar to the multi-countywide planning policies. There would be a focus on watersheds and similar areas with shared environmental and land-use concerns.

Agency decision-making in areas of greater than local concern would be done under a coordinated decision making process within the local jurisdictions’ framework. The decisions would need to be consistent with state and federal policies and guidelines. The decision-making process would be consistent with a "one-size does not fit all" approach and negotiated for each "Issue of Greater Than Local Concern". If a agreement is not reached through the process, or if an area does not initiate a coordinated decision making process, general state rules would apply. Existing rules would stay in place until new rules were developed through the coordinated decision making process.

Issues that are completely local – where there would be no state guidelines or coordinated decision making – would include areas such as planning or permitting where local government has the primary responsibility to implement land-use and environmental ordinances. In some instances, this would state laws and frameworks might apply, but application would be completely local.