Washington has a strong tradition of local control. Some issues facing local governments have impacts that are of concern to a region or statewide. Effective implementation of many land use and environmental laws requires cooperation among different levels of government. There are some mechanisms available to coordinate or share decision making authority between the different levels of government, but there are a number of areas where these mechanisms are not available or have not yet been tried.
Washington has a complex governmental structure that involves a variety of state and local governments with different authority and responsibility. Governance issues arise around the relationship between different levels of government, such as between the state and counties and cities; between the same types of governments, such as between cities and counties; and between different types of governments, such as between cities and counties and special purpose districts.
At the local government level, the different local governments often have overlapping authority. This can lead to conflicts over territorial jurisdiction, particularly when the local government with jurisdiction receives financial benefits through additional tax revenue. Conflicts between the state and local governments often involve issues of authority and control. The state, through the Legislature and the Executive, seek to exercise authority over issues that it believes to be of state-wide concern. Local governments often view this as intervention in matters of mostly local concern.
Washington's local government structure has been the subject of several studies over the years, including the Washington State Local Governance Study Commission, which issued its report in January 1988. The first paragraph of the Governance Study Commission's Recommendations states:
Washington local governments are fighting a losing battle to fulfill their responsibilities in today's changing world. Their powers fall short of their problems: their structures are often outdated, and hard to change; most of all, their revenues are inadequate for the services they are expected or required to perform. Frequently there are too many local governments, particularly in densely populated areas outside of cities, and too little coordination among them in coping with problems that often cross jurisdiction lines. Citizens feel uninvolved and unrepresented in the cumbersome processes through which local governments are obliged to operate.
The Quiet Crisis of Local Governance in Washington, Final Report of the Washington State Local Governance Commission, Vol. 2, p. 1 (1988). This is not a dissimilar list of concerns and problems expressed about local governments today, although much as changed since the report was written. Most significantly, the GMA addressed some of the issues concerning coordination among local governments. The GMA also addressed the issue of public involvement.
The traditional relationship between state and local government has tended towards a hierarchical structure. Local governments generally can only exercise the authority given them by the state either by statute or by the constitution. The constitution allows local governments to make and enforce laws not in conflict with the state's general laws. In some subject matter areas, the state has exercised its authority to such an extent that local governments are prohibited from taking any independent action or may be limited in the actions that they are authorized to take. In other subject matter areas, the state may have either explicitly given authority to local governments or may not have taken any action to restrict the inherent authority of local governments. This arrangement has resulted in a complicated array of authority between local and state government that varies depending on the particular subject matter.
One example of the relationship between state and local governments can be found in the Shoreline Management Act (SMA). The SMA establishes broad state policy goals and purposes. It gives a state agency (Ecology) the authority to adopt rules implementing the statute. Local governments are required to take action consistent with the statute and Ecology rules. Ecology must approve some local government actions and has the authority to review and appeal others. A state board is established by the SMA to hear appeals of Ecology and local government decisions under the SMA.
An example of a different type of relationship can be found in the GMA. The GMA also establishes broad state policies and goals. A state agency (Community, Trade, and Economic Development) has authority to adopt rules as guidance, but not as mandatory requirements. State agencies have a right to review and comment on local government decisions under the GMA, but they do not have approval authority. A state agency may appeal a local government's actions under the GMA to a state board. Local government actions under the GMA are presumed valid upon adoption. The board is required to uphold the local government decision unless it determines the action was clearly erroneous.
The state/local relationship turns in part on the regional scope of the interest that is in question. Some issues are of only local concern and do not require involvement or affect the interests of a broader community. Other interests have impacts on a region or implicate interests that are of regional or statewide importance.
The Legislature has provided some mechanisms to address regional issues. For example, Regional Transportation Planning Organizations (RTPOs) were authorized by the legislature in 1990 as part of the Growth Management Act. They are voluntarily created by local governments to coordinate transportation planning among jurisdictions and to develop a regional transportation plan. Local comprehensive plans and regional plans must be consistent. The RTPO also has authority to certify that local transportation elements of comprehensive plans are consistent with the regional transportation plan.
The 1998 Legislature added to the importance of regional transportation planning in SHB 1487. That legislation requires the state to work with local governments and the RTPOs to designate a transportation system of statewide significance. The Washington Transportation Plan, adopted by the Transportation Commission, is the basis for the collaboration between the state and local governments and the RTPOs.
Another approach towards regional decision-making is the watershed basin planning process authorized by the 1998 Legislature. Counties and cities, with the involvement of state agencies and in cooperation with water utilities and the tribes, can exercise some of the authority previously exercised exclusively by the state. This may be a model for future relationships. However, it is new and not yet fully tested.
Types of Governmental Interests
The Commission has found it useful to examine the interests of the different levels of government by separating those interests into three broad categories: (1) issues of only local concern; (2) issues of greater than local concern, i.e. regional or statewide; and (3) issues of solely statewide concern. Some issues may clearly fall into the solely local or solely state-wide categories. The majority of issues fall in the middle because they are of importance to both the local community and to the regional or state-wide interest.
One alternative governance model that has received some recent attention might be called coordinated decision making.
In coordinated decision making, governments with decision making authority collaborate to reach a decision that each then ratifies. They also decide how to involve citizens, for example by allotting time at each meeting for public comment; appointing advisory committees or work groups; meeting with constituents between the joint sessions, or by providing additional seats "at the table."
Steps in Coordinated Decision Making
The basic steps in coordinated decision making are: Principles Governing Coordinated Decision Making
The following are principles that should govern the development of a coordinated decision making process: Coordinated Decision Making For Project Decisions
Coordinated decision making can be used for specific projects either on an ad hoc basis or through procedures prescribed in a framework.
Ad hoc process
Most coordinated or collaborative decision making processes are currently established on an ad hoc basis. One party will suggest the idea and other parties decide whether to participate. If they do, they work to address the issues. Oregon and other states encourage such efforts by providing technical assistance for the convening process and by providing funds for facilitation services. Under this approach, the default decision making process, if parties do not reach agreement, are the existing processes, such as litigation or political action to change policy or leadership.
Pre-established framework
This model provides a structured framework for establishing a coordinated decision making process. As an example, the state or a county, or the governments of a region, would establish a framework that promotes negotiated decisions for a specific project or for a type of project, such as essential public facilities. The framework would specify how the coordinated decision making process would be convened, who has standing to participate, what issues are negotiable or nonnegotiable, and how decisions will be made if the participants cannot agree.
An example of this approach is a Wisconsin statute governing the siting of solid and hazardous waste facilities. Under that process, a local negotiation process is established when the applicant and the local government are unable to agree on siting. The statute controls the issues that may be considered and the procedure for negotiating disagreements. It also includes a procedure to resolve disputes that cannot be resolved through the negotiation process.
Coordinated Decision Making for Rule or Policy Development
Coordinated decision making can be used to develop rules or policies that apply either on a regional or statewide basis. The Administrative Procedures Act contemplates a form of coordinated decision making through its recognition of negotiated rule-making. Negotiated rule making is a process by which representatives of an 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.6
Coordinated decision making for rule or policy development will generally require authorizing legislation. The legislation should enable one or more state agencies and local governments to develop and adopt a rule for regional purposes. It should specify the procedures for convening the process and a default decision process if an agreement is not reached.
The emphasis for policy development should be on those issues that are of greater than local concern. These are issues where there is value in establishing multi-jurisdictional agreements and regulatory authority to conserve and protect important state interests, including:
Watershed planning legislation enacted by the 1998 Legislature has many of the elements of this model. It allows a county to establish a watershed planning process that involves both local and state government and the tribes. The planning process is given authority to address a limited set of water resource issues. If agreement is reached on those issues, the agreement takes the place of rules that would otherwise be adopted by Ecology.
The watershed planning legislation was controversial, with a number of interest groups expressing concerns about or opposition to the proposal. The environmental community, the tribes, and others believe the watershed planning process is an untested model. They are concerned that these processes may result in a dilution of state standards. The tribes see the statute as essentially a delegation of state authority to local governments and are concerned with that result. Implementation of the watershed planning process will be watched closely by those interested in water quality and water quantity issues. It will take few years before there is sufficient information to judge the success of the program.
Intergovernmental Coordinating Council
An Intergovernmental Coordinating Council could be established as a forum for developing a partnership between the different levels of government. It would bring together the interests of local, state, and tribal governments in a constructive discussion on how to advance the interests of Washington's citizens as a whole. It would have representation from these different governments. The intergovernmental council could be given authority to establish broad policy over a specific set of land use and environmental issues. There would be a need to clearly define the authority of the council and the extent to which it would have the power, if any, to overturn decisions made by local governments or state agencies.
Pros: Cons: Regional Coordinated Decision Making Process
A framework for establishing coordinated decision making processes could be established as part of a consolidated land use code. The framework should be based on the principles discussed earlier. The framework should allow the regional process to address either specific projects or specified policy or rule development. The framework should allow the use of an existing mechanism, such as an RTPO or an augmented county-wide planning process, or a new entity specifically designed to address the issue under review.
Pros:
Cons:
Alternative Dispute Resolution
A key component of coordinated decision making is the provision of technical assistance to both state agencies and local governments to help establish and implement the process. A number of states have adopted more or less formal mechanisms to provide that assistance. Oregon, for example, has established an Office of Dispute Resolution that provides assistance in evaluating issues for their potential for resolution, identification of facilitators and mediators, and matching grants to help pay for the costs of the process. Further consideration should be given to how such an office can be established in Washington. Details should be further developed on its budget, duties, powers, and public role.
Pros:
Cons:
(1) Establish new, or expand on existing, approaches to shared governance between state and local government. Two options deserving further consideration are:
(a) An intergovernmental council with representation from state government, local government, and the tribes; and
(b) Rule making and decision making procedures that promote shared governance over issues of greater than local concern, such as designation and protection of critical areas, shoreline management, and siting of transportation facilities of regional or state-wide significance.
(2) Provide additional technical assistance to state agencies and local governments on methods to avoid land use and environmental disputes and how and when to use alternative dispute resolution mechanisms. One mechanism deserving further consideration is a state office of dispute resolution to provide that technical assistance.
6 See A Guide to Negotiated Rule Making, Washington State Office of Financial Management (Nov. 5, 1997) for a discussion of the negotiated rule-making process in Washington.
Land Use Study Commission Final Report
December 1998