This issue paper addresses the topic of providing more certainty about state, local, and regional responsibilities in land use and environmental matters. This issue paper has been prepared as part of the development of a consolidated land use code. This is the work of the Land Use Study Commission staff. Advisory Committee members have not had an opportunity to review or comment on this draft paper.

A. State/ County/City/ Federal/tribal Relationships

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 as 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 conflict 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.

b. Governmental roles

1. Coordination

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.

2. Policy / Planning

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.

3. Information Management and Monitoring

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.

4. Standard Setting

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.

5. Dispute Resolution

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.

6.    Regulation and Enforcement

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.

7.    Service provision

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

8.    Trustee

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.

9. Funding and Incentives

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

C. Unit of Government’s Interest

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.

c. Governance structures

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.

A. Issues of Only local concern

1. Criteria for determining matters of only local concern

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 criteria for determining whether matters are of greater than local concern can also assist in this effort. As a starting point, the following criteria can be considered to assist in determining which matters are of only local concern:

2. Examples of issues of only local concern

The following are examples of items that might be considered of only local concern.

B.. Issues of Greater than Local Concern

1. Criteria for determining matters of greater than local concern

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.

2. Examples of issues of greater than local concern

State law is replete with example of issues that the Legislature has at some time determined to be of greater than local concern. The following list of items does not endorse these prior legislative decisions, but is provided as illustrative examples:

C. Issues of Statewide Concern

1. Criteria for determining issues of statewide concern

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.

The following are criteria that might be considered in determining that a matter is of statewide concern:

2. Matters of statewide concern

The following are existing examples where the Legislature has determined that certain matters are of statewide concern:

E. Mechanisms for governing issues of greater than local concern

1. Traditional APA Rule Making

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.

2. Negotiated Rule Making

Negotiated rule-making is a process by which representatives of any agency and of the interests affected by a subject of rule-making seek to reach consensus on the terms of a proposed rule and on the process by which it is negotiated. Negotiated rule-making has the following attributes:

3. Coordinated Decision Making

A third model for decision making, particularly when different units of government are involved, is coordinated decision making. This involves a sharing of responsibility among the different governmental entities. The coordinated decision making model is primarily intended for those issues where controversy prevents timely and effective decisions. However, since it is basically a framework for convening and conducting negotiations among multiple jurisdictions, it may also provide guidance for those situations where jurisdictions collaborate effectively.

The following are guidelines that should govern the development of a coordinated decision making process:

The state, a county, or some regional entity or partnership of governments establish a framework setting forth some structural aspects of coordinated decision making before any the process can be used. The parties to a case would then agree on additional procedural matters and express them in written protocols. See Appendix ___ for a discussion of the coordinated decision making model.

4. State agency coordination

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.

There are a number of approaches for coordinating state agency responsibilities. See Appendix ___, Chapter 4 – State Planning, Growing Smart Legislative Guidebook (American Planning Association, 1997). The following is a list adapted from the Growing Smart project of some options that provide mechanisms for coordinating agency duties:

A. Matters of local concern, greater than local concern, and statewide concern

B. decision making models

C. preferred option