TRPC Economic Development Information
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PLANNING COUNCIL
rTrtrold Robertson, Executive Director
Th:.rstorl Regional Planning Council
2 10 4-B H2 r.':L Case Col.lrr, S~
Olympia, W 98502-6031.
Deaf, Harold,
Reg1.11_atory reform was a topic of considerable discussion at The Olympian
-Thurston Regional Planning Council's economic development roundtable at
TESL on May 14th. There was general agreement. that the local regulatory
environment needed some reworking', but few comments on hoc.; to accomplish
that. foal. I agreed that day to pass along to the bid' cities and county
some ir;formaLi.on that I found useful in thinking about the "how to's" of
this sUb.ject.
I've enclosed two documents I hope will provide some ideas and perhaps a
frar;ieC,or1i or lookings at regulatory reform. One is called "Streamlining
Regal.;-ltorz- Controls at the Local Government Level" while the other is an
interim report and recommendations from the Governor's Task Force on
Reg"ul'at.ory Rerorm. The former is tailored specifically for local areas,
the latter is statewide but encompasses points applicable to any and all
,jurlsdi.ctiorIs.
I hope You [and the material useful and pass it along to other officials
and interested parties. Thanky-ou.
Sincerely yours,
Gary I;a.m:i.ma r 1
T.;e,:ider,s1-1i.p Thurston County
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REGULATORY
CONTROLS
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James B. Duncan, AICP
James Duncan and Associates
Austin, Texas
January 6, 1994
ELIMINATING REGULATORY OVERKILL:
The Report of The National Performance Review
"Thousands upon thousands of outdated, overlapping regulations
remain in place. We have no precise measurement of how much
regulation costs or how much time it steals from productive work.
But there is no disagreement that the costs are enormous. A
1993 study concluded that the cost to the private sector of
complying with regulations is at least $430 billion annually."
Common Regulatory Problems
? Outdated Regulations
? Duplicative Procedures
? Unnecessary Requirements
? Incomplete Applications
? Uncoordinated Agencies
? Inadequate Staff Resources
? Conflicting Interpretations
Organizational Improvements
? Revise and Reorganize Regulations
? Re-examine and Restructure; Agencies
? Standardize Handouts/Manuals/Forms
? Establish Centralized Intake
? Assign Project Coordinators
? Employ Process Expediters
? Automate! Automate! Automate!
Development Process Improvements
? Promote Preapplication Conferences
? Require Complete Submittals
? Encourage Concurrent Processing
? Allow Fast-Track Permit Processing
? Employ Joint Staff Review Sessions
? Establish Firm Review Deadlines
? Eliminate Unnecessary Procedures
Decision-Making Improvemftts
? Establish Criteria (Consistency/Equity)
? Allow Lower Level Decision-Making
? Provide for Expedient Conflict Resolution
? Eliminate Duplicative Public Hearings
? Encourage Focused Citizen Input
? Establish Equitable Appeals Process
? Promote Staff /Commission Training
Feedback Improvements
? Create Performance Review Unit
? Survey Customer Attitudes/Opinions
? Initiate Computerized Tracking System
? Require Fiscal/Cost-Benefit Assessments
? Consider Regulatory Sunsetting
? Appoint Citizens Review Task Force
? Increase Public Education/Information
Regulatory Criteria
? Simplicity..
? Predictability
Accountability
? Consistency
? Efficiency
GOVERNOR'S TASK FORCE ON REGULATORY REFORM
INTERIM REPORT AND RECOMMENDATIONS
DECEMBER 17, 1993
r
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Governor's Task Force on Regulatory Reform
Interim Report and Recommendations
Table of Contents
1. Table of Contents Page i
2. Governor Lowry memo from Karen Lane, Chair Page ii
3. Interim Report and Recommendations Introduction Page iii
4. Grants of Authority by the Legislature Page 1
5. Administrative Procedures Page 3
6. Improve the BAC Capacity to Assist Small Business Page 5
7. Regulatory Impact Statements Page 6
8. Standardized Forms Page 8
9. Technical Assistance Without Penalty Page 9
10. Joint Administrative Rules Review Committee Page 10
11. Review Existing Rules Page 11
12. Performance Reporting Page 12
13. Subcommittee to Consider Alternative Approaches Page 13
14. Integration of GMA, SEPA, SMA and Others Page 14
15. Uniform Requirements for Development Regulations Page 15
16. GMA Appeals Process Page 17
17. SEPA Appeals Page 18
18. Model Toxics Control Act Page 19
19. SEPA/GMA Integration Page 20
Attachments:
Attachment A: Executive Order, EO 93-06
Attachment B: Information Developed by The Governor's Task Force on Regulatory Reform
Attachment C: Groups & Individuals who provided written information to the Task Force
Attachment D: Regulatory i'cform, Some of the Alternatives
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GTFRR-0034d1, 17117/93 03:30 PM 1
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1
STATE OF WASHINGTON
GOVERNOR'S TASK FORCE ON REGULATORY REFORM
INSURANCE BUILDING, PO BOX 43113 OLYMPL4, WASHINGTON 99S04-3113 (206) Sd64344
December 17, 1993
The Honorable Mike Lowry
Governor, State of Washington
P.O. Box 40001
Olympia, Washington 98504-0001
Dear Governor Lowry:
Enclosed is the Governor's Task Force on Regulatory Reform interim report and
recommendations called for in Executive Order 93-06. These changes will contribute to
improved state and local government regulation, but we also recognize that there is much more to
do.
We look forward to your reaction to these proposals and will assist in any way possible to pursue
the legislation called for in our report. The Task Force is hard at work preparing a detailed work
plan for 1994 wherein we intend to address:
Integration of SEPA/GMA and other land use laws.
• Further improvements to rule-making including alternatives to
command and control approaches to regulation.
• Measurements of regulatory performance
• Alternative Dispute Resolution concepts.
• Review of existing rules.
Task force members frequently restate your direction that we not harm the environment or
otherwise diminish public protections. 1 am confident we are carrying out your directive in that
regard.
Your personal attention, time, and pagicipation in these issues are very much appreciated.
Thank you,
KCA2.tti
Karen Lane, Chair
Members: Karen Lane, Chair, The Honorable Ann Anderson, Mark Brown, Rodney L Brown, Elaine Davis, Mayor
Tim Douglas, Robert J. Drewel, Ruta Fanning, Andre Gay, Thomas Goelm Ron Judd, Ronald Kiracofe,
Wallace Loh, Casey McKinney, The Honorable Ron Meyers, The Honorable Bill Reams, Mary Riveland,
Susan Schmoll, The Honorable Betti Sheldon, Walter Toner Jr., Mike Williams, Jim Worthington
GTFRR-0034d1. 12117/93 03:37PM 11
Governor's Task Force on Regulatory Reform
Interim Report and Recommendations
December 17, 1993
Introduction
The Governor's Task Force on Regulatory Reform was created by Executive Order 93-06
(Attachment A) and asked to address the following questions:
A. How should the state's environmental and growth management requirements and processes
be integrated so that the goals of environmental protection, orderly and planned growth, and
sustained economic development are achieved?
B. What improvements should be made in project approval, permitting, and appeals processes
and structures to make them faster and simpler without undercutting environmental
protection?
C. In addition to actions directed by this executive order, what other mechanisms, structures,
and procedures should be instituted to achieve better coordination and consistency in
regulatory actions within agencies, between agencies, and between jurisdictions?
D. Are there effective performance-based, market-based, and other regulatory models that will
achieve more efficient and effective regulation than current command and control and
technology-based regulatory approaches?
E. In addition to actions directed by this executive order, are there other ways to expand the use
of alternative decision making and dispute resolution models designed to reach consensus and
resolve conflict on regulatory issues without resorting to litigation?
F. Is there a need to amend the state's Administrative Procedure Act or related statutes that
would lead to more reasonable, efficient, timely, cost-effective, and coordinated rule-making
and adjudication?
The twenty two members include representatives of business, agriculture, labor, environmental
groups, cities, counties, state agencies, and the Legislature. The Office of Financial Management
provides staff support.
The Governor requested interim recommendations by December 1, 1993 with more
comprehensive conclusions and recommendations by December, 1994.
Process
State and local government regulation is a vast topic. Before identifying solutions the Governor's
Task Force on Regulatory Reform set `about to describe the problem. Experts were invited to
address the Task Force, Task Force members identified regulatory issues and needs and interest
groups and the public were given opportunities to testify. Attachment B contains information
provided by Task Force members on October 7 in response to four questions:
• What causes these issues to be before us now?
• What are the characteristics of "good" regulation?
• What measures will indicate performance?
GIFRR-0034d1. 12/17/93 03:30 PM 111
• What is the problem the Task Force should address?
Their responses, identified in Attachment B, provided a framework for subsequent discussions of
the Task Force.
Members, interest groups, state agencies and the public were asked to submit recommendations
for regulatory improvement. The Task Force has received nearly 50 written proposals from a
wide variety of sources. Attachment C is a list of those who have provided written material to the
Task Force, information that has been most helpful in the work to this point. The ideas were
grouped by subject matter as shown in Attachment D. This list of alternatives is representative of
the issues raised, not all inclusive.
In order to meet the December 1993 deadline the Task Force identified those proposals ready for
early action. Considerations included the completeness with which the proposal is defined, the
degree of member consensus, and the impact that the change will have in improving regulation.
Staff drafted concept papers covering the topics identified by the Task Force as having near term
priority. After considerable deliberation, the Task Force recommends legislation and executive
action to:
1. Encourage more specific legislative policy direction.
2. Ensure that legislators and rule makers be better informed of the expected impacts of their
decisions.
3. Reduce paper work and provide technical assistance to the public.
4. Strengthen legislative oversight of new rules and initiate a review of existing rules.
5. Analyze and monitor the results of state regulatory reform initiatives.
6. Clarify and simplify appeals procedures of SEPA and GMA.
7. Exempt Dept. of Ecology supervised toxic waste site c}: anups from cumbersome
procedural requirements.
Task Force members believe that for true regulatory reform to occur, we must clarify and change
the process from beginning to end, including specified legislative intent, rule-making that
implements that intent, analyzing the results, and evaluating whether the law and rules have the
desired effect. _
Future Governor's Task Force on Regulatory Reform Workplan
The interim recommendations are only a start. The Task Force is working with environmental
and land use experts from business, environmental groups, local government, and agencies to
integrate SEPA, GMA, and other environmental and development related laws. OFM has hired
an expert in alternative dispute resolution techniques to assist agencies and provide
recommendations on any legal or administrative changes that may be useful.
Next year's workplan also calls for study of alternative approaches to command and control
regulation, and additional review of existing rules, including the overlap of Federal rules with state
and local government.
The Governor's Task Force on Regulatory Reform looks forward to continuing its work to
develop recommendations to reduce the complexity and cost of today's regulation without
negatively impacting the environment, workplace safety, or general health and welfare.
GTFRR-0034d1, 12/17!93 03:30 PM iv
Grants of Authority by the Legislature
Purpose:
To improve the clarity and comprehensiveness of legislative intent clauses and provide more
specific direction to those involved in the rule-making process.
Nature of the Problem:
Agencies derive rule-making authority from several places. First is the enabling statute, which
often provides broad authority to write rules. The enabling statute, coupled with a broad intent
statement in substantive law, can be used as a basis for adopting new regulatory requirements.
Several state agencies have fairly liberal authority to adopt rules. For example, the Department of
Ecology's enabling statute states, in RCW 43.21A.080, "The director of the department of
ecology is authorized to adopt such rules and regulations as are necessary and appropriate to
carry out the provisions of this chapter."
Second, specific authority may be granted by the legislature as part of a substantive statute. This
authority may or may not provide clear direction to the agency and adequately express legislative
intent.
Two general approaches are necessary to address these concerns. First, there needs to be a
review of previously enacted laws which include grants of authority and purpose statements to
determine which should be amended. Second, to avoid the problem for future legislation, the
Legislature should take certain steps to insure both that future statutes provide clearer direction to
agencies regarding rule-making and that the Legislature understand the magnitude of anticipated
rule-making and the estimated impacts on agencies of proposed legislation.
Recommended Action:
1. Recommend to the Legislature that beginning in 1994 it have the standing committees review
all existing grants of authority and purpose statements and, where appropriate, propose
legislation to clarify, narrow, or repeal such grants and statements, with reference to the
criteria identified in #3 below.
2. Recommend to the Legislature that legislation granting rule-making authority to agencies
include specific guidelines and direction (including more comprehensive purpose statements)
to the agencies charged with drafting such rules. Among the steps that could be taken are
mandatory training for all bill drafters, a revision to the Code Reviser's Bill Drafting Manual,
or legislative rules which would require staff to check off on the standing committee report
whether the bill has an intent clause and whether specific criteria are established for any rule-
making authority granted.
.....continued on next page
GTFRR-00340 11117/93 03:43 PM 1
Grants of Authority by the Legislature
3. Recommend to the Legislature a requirement that a "regulatory note" be prepared as part of
the committee bill report. This regulatory note would identify new rule-making authority
anticipated to be embodied within the proposed legislation, agencies to which new rule-
making authority would be delegated, and a description of any other agencies with related
rule-making authority.
4. Recommend to the Legislature that as part of such a regulatory note there be a checklist
confirming that the committee addressed the following questions, where appropriate:
a. Need Does the law respond to a specific, identifiable need? Is
government the most appropriate vehicle to address this need?
b. Purpose Is the intent of this law clear? Is the state or local government
entity charged with carrying it out identified?
c. Evaluation Has the Legislature identified specific measurable outcomes that the
law should achieve? Is an evaluation process identified?
d. Interested parties Has adequate collaboration occurred with all those affected
(including the public, the regulated, and the regulators)?
e. Cost Have the costs of compliance and administration been estimated?
Will the law achieve the goal with minimum cost and burden?
Has the cost of not adopting the legislation been considered?
f. Compliance Does the law inspire voluntary action?
g. Clarity Is the law written concisely and void of ambiguities?
h Conflicts Does the proposal conflict with existing statutes and, if so, does it
resolve the conflict?
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GTM-0034( 12117M 03:45 PM 2
Administrative Procedures
Purpose:
To make rules more appropriate and effective by requiring that agencies consider certain factors
and respond to testimony during the rule-making process.
Nature of the Problem:
Under existing procedure agencies are not required to respond to testimony presented in required
hearings prior to rule adoption. This frustrates persons attempting to influence the rule-making
process since inadequate attention is given by some agencies to possible consequences and
alternatives to the riles.
There exists a further concern that agencies are not making adequate effort to ensure that new
rules do not conflict with or duplicate existing riles (either their own or those of another agency)
or are not considering adequately whether state riles more stringent than existing federal rules on
the same subject are necessary. No criteria exist by which agencies must formally evaluate
proposed rules.
There also is concern that some agencies use the emergency rule-making authority to short circuit
the existing more elaborate permanent rule-making processes.
Recommended Action:
A. Recommend to the Legislature that it revise the Administrative Procedures Act (APA) as
follows:
1. Require agencies, as part of the rule adoption process, to consider comments prior to
adopting a rule and to prepare a responsiveness summary that responds substantively and by
categories to comments received, is placed in the record, and is sent to any person who has
commented or otherwise requested a copy.
2. Establish the following criteria that agencies must consider in adopting a rule which has a
direct impact on the public. The agency must describe its consideration of these criteria. This
description would become part of the rule-making file.
a. Authorized The law permits or obligates the agency to adopt the rule.
b_ Necessary There is a need for the rule.
c. Economic The agency has evaluated the economic and fiscal
Environmental consequences of the rule (or failure to adopt the rule),
Consequences especially the extent to which these consequences fall
dispropprtionately on small businesses, and has complied
with chapter 43.21H RCW (State Economic Policy Act)
and 43.21C (State Environmental Policy Act.)
....continued on next page
GTFnR WU[ 12/17/93 03:45 PM 3
Administrative Procedures
d. Consistent The rule is consistent with existing state rules and statutes
(does not conflict or duplicate) and resolves conflicts with other
rules.
e. Least Burdensome There was consideration of alternatives to regulation or to
_ the particular rule, including the no action alternative, that
would serve the same purpose at a lesser cost.
f. Federal Mandates The agency describes the basis for, and articulates the costs and
benefits of, any differences with any federal rules on the same
subject. (See comment below.)
g. Equity Where applicable, the agency.must describe any differences
in the application of the rule to public and private entities
and describe the reasons why.
h. Measurable The agency writes the rule such that it can be determined
whether the rule achieves the purpose for which it is
intended.
3. Require that the Governor oversee the use of emergency rule-making authority.
B. The Governor should direct agencies to use the pre-proposal scoping process already
authorized by the APA to gather input from stakeholders prior to formally proposing
significant rules.
Comment:
Regarding recommendation A. 2.f., above, the Task Force struggled with additional language for
a solution to the problem experienced by many businesses which face inconsistent state and
federal rules. Such inconsistency not only causes confusion within this state for businesses but
frequently makes doing business in more than one state difficult.
Given the deadlines under which the Task Force has operated, the Task Force was unable to
reach agreement on language. However, the sense of the Task Force was that the decision of
whether or not a given state agency should impose by rule standards more strict than those
imposed by the federal government is a significant policy decision which should be made by the
legislature, not by the rule-making agencies.
The legislature should in its review of existing delegations of rule-making authority consider
whether it should permit agencies to go beyond federal standards or whether it should limit those
agencies to federal standards only. Likewise, in the future, the legislature should be clear in its
delegations of rule-making authority whether as a matter of public policy agencies should be
constrained to adopting standards no more stringent than the federal standards.
Footnote: See pages 10 and 11 on rules review for additional changes to APA.
GTM-0034L 12/17/93 03:45 PM 4
Improve the Business Assistance Center
Capacity to Assist Small Business
Purpose:
To increase the capacity of the Business Assistance Center to provide regulatory assistance to
businesses and guidance, coordination, and training to state agencies for improving the quality and
consistency of regulatory processes.
Background:
Created in 1987, the Business Assistance Center has continuously expanded the amount and types
of services provided to businesses and state agencies, even though the Center's resources for
staffing and operatic-in have been reduced significantly over the past two years.
In 1992, the BAC's Interagency Task Force on Regulatory Fairness found that there was a need
to improve rule-making training, and state agency communication and outreach to businesses.
The BAC needs additional resources to embark on this expansion.
Currently, the BAC is testing a new approach to providing interagency technical assistance to
businesses in the forest products industry to increase compliance with safety standards enforced
by the Department of Labor and Industries. If successful, this targeted sector approach to
technical assistance will result in written guidelines for small forest products firms and could be
used as a technical assistance model for other industries. To publish these guidelines and to
expand to other industries, the BAC needs additional resources to provide interagency
coordination and to produce materials for targeted industries.
Recommended Action:
1. Strengthen communication and outreach to businesses by working with state agencies to
develop a user-friendly, coordinated approach to providing businesses with information about
all rule-making activity taking place in the state; explore the expanded use of advanced
technology to make detailed regulatory information accessible to businesses; and develop state
agency guidelines for the review of agency forms.
2. Support the rule -making training curriculum developed by the BAC's Interagency Regulatory
Fairness Task Force, and expand training to local services delivery providers to enhance direct
technical assistance to businesses.
3. Develop and implement an interagency, targeted industries technical assistance pilot project.
GTFRR-0034L 12/17/93 03:45 PM 5
Regulatory Impact Statements
Improving the Regulatory Fairness Act
Purpose:
Ensure that the economic effects on small business are adequately considered during rule-making.
Nature of Problem:
The Regulatory Fairness Act was passed in 1982 in an effort to help provide economic relief for
small businesses from costly government regulation.
For proposed rules that have more than a "minor or negligible impact" and which affect more than
20% of all industries or more than 10% of any one industry the agency must prepare a Small
Business Economic Impact Statement (SBEIS) to accompany.the proposed rule when it is filed
with the Code Reviser.
Currently there are several problems and concerns with the existing SBEIS requirement. First,
there is a lack of uniformity in how such statements are being developed. Although the Business
Assistance Center (BAC) has published a useful set of guidelines pursuant to the Act, there is a
perceived need that more specificity be included in statute as well. Further, there is a need to
broaden the threshold for the preparation of an impact statement by redefining industry to smaller
units. Currently, "industry" is defined by the three-digit Standard Industrial Classification (SIC)
Code. There also exist subsets of those three-digit codes, i.e. four-digit codes, which more
precisely define useful categories of industry for purposes of the impact statement requirement.
Recommended Action:
Recommend to the Legislature that it amend the Regulatory Fairness Act to do the following:
1. Redefine "industry" as businesses in any one four-digit SIC Code (versus three-digit) as
published by the United States Department of Commerce. If these data are not available
because of confidentiality, agencies should be required to use the most detailed SIC
breakdown for which data are publicly available.
2. Make the requirement of a small business economic impact statement applicable to all rules
which have impact on small business, not just applicable to those rules which have more than a
• "minor" or "negligible" impact as now is required.
3. Ensure that the statements are prepared by agencies prior to the actual decision to propose a
rule (rather than subsequent to that decision), and include in such statements the steps that the
agency intends to take to mitigate the rule's impact on small businesses.
continued on next page
GTFRR-0034f. 11117/93 03:45 PM 6
Regulatory Impact Statements
Improving the Regulatory Fairness Act
4. Encourage agencies to use committees pursuant to RCW 34.05.310. Appropriate industry
and agency representatives will assist in analyzing costs of compliance and identifying steps
that can be taken to minimize the cost impact on small businesses.
5. Clarify Legislative intent by stating that the intent is to reduce the economic impact of state
rules on Small Businesses.
6. Allow agencies to use both existing and new data gathering methods in the preparation of
SBEIS's. Current: law requires only that "existing" data be used.
7. Add a provision to RCW 19.85.040 to include as part of ah SBEIS the mitigation options
considered by the agency and an explanation for each option not included in the rule. Amend
the statute to allow agencies to use mitigation techniques beyond the four currently specified.
GTM-0034[ 17117/93 03:45 PM 7
Standardized Forms
Purpose:
To reduce paperwork.
Nature of the problem:
State, county, and city agencies have a variety of forms and applications that are required to be
completed by applicants for permits, licenses, approvals, and services. Much of the information
required is duplicative from one form to another. Filtering out multiple forms with the same
information is an unnecessary burden for the public.
Recommended Action:
Recommend to the Legislature that it require all state, county, and city agencies to standardize
their forms by having one standard format for basic information. Different forms for different
purposes would each include a common cover sheet with basic information.
Comment:
City and county officials have expressed an interest in developing models of standardized forms to
be used by cities and counties.
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GTFRR.0034[ 12117/93 03:45 PM 8
Technical Assistance Without Penalty
Purpose:
To gain greater regulatory compliance with less conflict.
Nature of the problem:
The traditional means of gaining regulatory compliance through command and control has
resulted in significant: ill will by the public towards government. It is sometimes difficult for those
needing to comply with regulations to understand what is required. People fear that if they ask
the regulatory agency for assistance and advice, they may receive a citation, fine, or immediate
compliance order.
Regulatory agencies, under current regulations, may have rigid guidelines for enforcement. Once
an inspector finds a violation then if he or she fails to issue a citation or order, liability accrues to
the government and personal risk back to the inspector.
Both the inspector and the public are caught in this rigid system which discourages
communication and helpfulness.
Recommended Action:
Recommend to the Legislature and the Governor as appropriate that they require:
1. Each agency to designate one or more technical assistance representative(s) to coordinate
voluntary compliance and provide technical assistance concerning compliance with the
agency's laws and regulations.
2. Requests for technical assistance will initiate a consultation and education process, not
immediate enforcement. Technical assistance representatives will not issue orders or assess
penalties.
3. On site consultations by technical assistance representatives will not be regarded as
inspections or investigations and no citations or orders will be issued. Representatives will
inform the owner or operator of violations which are observed.
4. If the owner or operator of the facility does not correct the observed violations within a
reasonable time the agency may inspect the facility and take appropriate enforcement action.
If a representative observes a violation of the law that places a person in danger or is likely
to cause physical damage to the property or others, or cause significant environmental harm
the agency may initiate enforcement action immediately upon observing the violation.
GTFRR-0034C 12/17/93 03:45 PM 9
Joint Administrative Rules Review Committee
Purpose:
To strengthen legislative oversight of rule-making to assure consistency with legislative intent.
Nature of Problem:
The Washington State Joint Administrative Rules Review Committee (JARRC) is charged with
the responsibility of reviewing proposed and existing rules to determine whether they conform
with the intent of the statutes they purport to implement.
Under the current JARRC process, a copy of all proposed rules is transmitted to staff of the
appropriate standing committees in the Senate and House for preliminary examination. The
standing committee staff reviews these rules to determine whether a JARRC review is necessary.
A formal request for committee review must be made by a legislator. Interested parties may seek
out a legislator to present the request. If the issue cannot be resolved informally and goes to a
formal hearing before the JARRC, the JARRC may, by majority vote, find that the rule is not
within the scope of authority for the agency. JARRC may attempt to persuade the rule-making
agency to revise the rule by publishing a notice in the Washington State Register that a rule does
not reflect original legislative intent. Also, by a two-thirds vote, JARRC may recommend that the
Governor suspend the rule. If the Governor makes the decision to suspend, such suspension is
effective until ninety days after the end of the next regular legislative session.
Many argue that JARRC lacks the resources and enforcement powers to provide effective
legislative oversight of the rule-making process.
Recommended Action:
Recommend to the Legislature that it strengthen the JARRC by:
1. Amending the current requirement of a two thirds vote of JARRC members to vote in favor of
a recommendation to suspend a rule to a majority of the members.
2. Adding a provision such that if the Governor declines to suspend the rule after the majority
- (currently two thirds) JARRC vote, the JARRC finding would be transmitted to the agency
and would trigger automatically a petition to repeal the rule in question pursuant to RCW
34.05.330. Within sixty days, pursuant to RCW 34.05.330, the agency would have to
commence rule repeal proceedings (or proceedings to amend appropriately the rule) or state
why no such proceedings would be commenced. The legislation would specify that included
in any statement declining to repeal the rule the agency must state why the rule is within the
scope of its statutory authority.
3. Expanding JARRC authority to review rules for compliance with statutory procedures.
4. Allowing JARRC, by a two-thirds vote, to create a-rebuttable presumption that a regulation
was adopted without authority for purposes of any judicial proceeding in which the validity of
the regulation is at issue.
GTM-0034[ 12/17/93 03:45 PM 10
Review Existing Rules
Purpose:
To create an ongoing mechanism for identifying, reviewing, and repealing or amending existing
regulations that are obsolete, duplicative, conflicting, or otherwise unnecessary.
Nature of Problem:
There is a lack of knowledge about which regulations need revision; however, a requirement to
review every rule would be onerous. The Task Force, the Legislature, and the Executive Branch
must formulate an on-going rules review system and begin reviewing regulations now.
Although the existing APA in RCW 34.05.330 provides a mechanism by which any person can
petition the rule-adopting agency to repeal its own rule, on a regular basis, there needs to be a
broader effort to review existing rules and some mechanism to repeal a rule other than simply
having the rule-adopting agency reevaluate its own rule. -
Recommended Action:
1. Establish a Task :Force subcommittee that will:
a. initiate the rules review process by identifying a priority list of rules for review in 1994,
such identification to include a means by which the public can nominate rules for the
subcommittee to consider:
t
b. formulate a realistic ongoing process for reviewing existing rules.
c. prepare a draft of the on-going rules review process quickly so that the Task Force can
recommend it to the Governor in time to identify resource needs in the budget.
2. Recommend that the Legislature amend the APA to provide for a rules review by the
Governor. The existing APA allows for any person to petition for agency review of rules.
The amendment will provide any person who unsuccessfully seeks an agency repeal to petition
the Governor for the repeal or readoption of such rule.
Comment:
Under this revised recommendation the subcommittee would proceed on two tracks. On one it
would create a mechanism for on-going rules review, with the Task Force forwarding a
• recommendation to the Governor before the 1994 report deadline so that adequate resources for
the process could be written into the next budget.
On the other track the subcommittee would prepare a priority list with which to begin the rules
review process. The public could nominate rules for the subcommittee to prioritize. The
questions of who would do the actual reviewing, and how it will be done will need to be specified.
By getting the list out quickly, the first review might be done on a pilot basis, thus contributing
lessons for refinement of the ongoing mechanism. One approach the subcommittee might
consider, for example:, could continue to involve the public in a kind of "negotiated de-
regulation."
GTFRR-0034[ 12/1793 03:45 PM 11
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Performance Reporting
Purpose:
To improve the timeliness, consistency, and responsiveness of state agency administration of
regulation by analyzing and reporting the results of regulatory reform initiatives.
Nature of the Problem:
A significant amount of regulatory, reform activity is going on throughout state government.
These efforts need to be compiled and evaluated to provide a broad understanding of successes
and shortcomings.
There is also a need to measure'results. Decision timeliness, number of regulatory actions,
percentage of appealed agency decisions, and the appeal overturn rate are examples of regulatory
activities that can and should be counted and compiled. Currently this is not being done.
The Governor identified the need to coordinate regulatory activities between agencies and levels
of government to improve timeliness and reduce duplication and overlap. EO 93-06 requests
state agencies to:
• Resolve interagency disputes through jointly developed procedures.
• Convene agency rule coordinating committees
• Implement negotiated rule making and pilot rule process
• Improve regulatory information and education by:
a. Notifying those persons impacted of anticipated rule making.
b. The Business Assistance Center helping agencies better inform the public about regulatory
requirements.
c. Providing better training to rule writers and others responsible for the regulatory process.
d. Utilizing Dept. of Licensing's Business License Center for other regulatory
communications and one stop activities.
Monitoring and performance reporting were not included in the Governor's order.
Recommended Action:
Propose that OFM report performance of state agencies regarding implementation of Executive
Order 93-06 and other regulatory reform activities by:
1. Dedicate staff to monitor regulatory reform efforts and report the results. The office will
work closely with agencies to determine baseline statistics (e.g. permit flow time, appeals
rates, overturn rates) against which to measure how well reform efforts are accomplishing
their objectives.
2. Publishing a periodic report outlining the results of implementing other reform initiatives. The
staff will also serve as a regulatory ombudsman for the public, providing a hotline for access
and incorporating what it learns into the periodic report.
GTFRR.0034C. 12117/93 03:45 PM 12
Subcommittee to Consider Alternative Approaches
Purpose:
To consider alternatives to command and control to achieve compliance with improved public
acceptance.
Nature of the Problem:
The current "command and control" approach to regulation attempts to direct behavior by setting
standards and penalizing violators. Many believe there are additional tools to complement the
traditional approaches.
Several localities have attempted to protect the environment through innovation. They have
established programs that allow for mitigation set-asides and development rights transfers.
Mitigation set-asides for example could allow a developer to replace a filled wetland by creating a
new wetland of equal or greater value. An example of a transfer of development rights (TDR)
would be to provide a developer the option of giving up rights to build in a rural area in exchange
for rights to develop in a denser, urban location.
Recommended Action:
1. Establish a subcommittee of the Task Force to study market and performance incentives as
alternatives to command and control approaches.:
2. Environmental protection, workplace safety, and resource preservation are among the areas to
be addressed. The study should include education and technical assistance programs, and
economic incentives and disincentives such as reducing pollution permit fees for those who
exceed pollution reduction standards. Administrative and Legislative recommendations are
needed for implementation.
3. The subcommittee should explore the following alternative approaches: 1) market incentives
such as wetlands mitigation or developments rights transfer programs, 2) integrated permits
that cover multiple environmental rules such as air pollution and water quality permmits, 3)
pollution preverRion programs, 4) increased technical assistance to those subject to
regulations, and 5) public and consumer education.
4. The subcommittee should draw upon the experience and expertise available in the private
sector and state agencies that are beginning to develop alternative approaches and coordinate
with the private sector and Business Assistance Center.
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GrM-0034f. 17!17193 03:45 PM 13
Integration of GMA, SEPA, SMA and Others
Purpose:
To determine how to consolidate land use and environmental laws to reduce cost and complexity
without harming the environment and to establish the long range context within which short-term
actions can be taken.
Nature of the Problem:
Over the last 25 years, regulatory practices in the State of Washington have evolved to ever
greater levels of complexity. We are now discovering that regulations sometimes conflict with
each other and with other public policy objectives such as housing affordability and economic
development. While in recent years we have become more sophisticated in planning and impact
identification, we have not focused on or revised the process for implementation of the various
regulations. The costs and unintended consequences of regulation result from two principal
characteristics of the regulatory culture that have emerged. First, laws and regulations have been
adopted at different times to address narrow, specific problems, without complete consideration
for how they interact with other regulations. The result has often been overlap, duplication,
conflict and confusion in regulation. Second, laws and regulations that have been adopted this
way often fail to balance the narrow environmental objective of the regulation with broader public
policy objectives. This conflict has become even more pronounced since GMA has directed the
local governments to adopt comprehensive plans that integrate environmental, economic, and
these other broader public policy objectives.
Recommended Action.:
A. During 1994 establish a Task Force subcommittee with additional members to:
1. Study SEPA, the GMA., SMA, and all other land use and environmental laws related to
construction and resource use to determine how all aspects of environmental protection, land
use, appeals and litigation processes can be integrated.
2. Review state, federal, and federally delegated permit programs, local land use laws, and the
need for coordination in these processes to ensure strict time lines for permit decisions.
3. Prepare recommended legislation for consideration by the legislature in 1995.
B. Give appropriate notice to governments planning under the GMA that the results of this Task
Force study guide and affect development regulations to be adopted under the GMA.
J
C. In the short term, initiate the legislative and regulatory changes on the following pages which
are recommended for action in 1994.
Comments:
Given the size and complexity of the project, state agency and legislative staff should provide
support to the subcommittee. The Task Force subcommittee may need technical assistance.
Liaisons with the SEPA/GMA working group (of DCD & DOE), the City/County Planning
Directors, and others also should be maintained.
G'iFRR-0034C 17117!93 03:45 PM 14
Uniform Requirements for Development Regulations ,
Purpose:
Establish uniform requirements for cities and counties adopting development regulations under
the GMA. y
Nature of the Problem:
The GMA requires local governments to adopt development regulations to implement their GMA
comprehensive plans.. These regulations must be adopted by the end of 1994 and have the
potential to add additional layers of regulations and create inconsistency between local
governments. A number of issues need to be addressed in this legislative session to provide
guidance to cities and counties before they adopt their plans and regulations and to reduce
conflict, duplication, and overlapping processes.
Recommended Action:
Recommend to the Legislature amendments to the GMA and other pertinent statutes to:
1. Require local governments to include in their development regulations a timely and predictable
permit process for complete applications deemed to be consistent with adopted GMA plans
and regulations.
2.. Require local governments to specify the contents of a complete application in-their
development regulations adopted to implement their GMA plans.
3. Require all local governments to provide written notice to applicants, within 10 days
following the filing of a permit application, of the following:
a. if the application is complete, or
b. if the application is incomplete, then what is necessary to make it complete.
Comments:
The Task Force was in agreement on the goal to integrate SEPA review with the land use permit
process and to devebp a single, project level review process, but there was no consensus yet on
exactly how to achieve that goal or on the timing of when it should occur. Some members felt
that we were ready now to propose that compliance with the critical areas ordinances and other
development regulations to be adopted under the GMA would constitute adequate SEPA
• mitigation for projects. Other members felt that acting now would be premature because the
GMA does not include minimum standards for the critical areas ordinances or development
regulations and because local governments will not'be adopting their development regulations
until late 1994. The Task Force subcommittee formed to study the integration of SEPA, GMA,
SMA, and other land use and environr9ental laws will consider this issue during its ongoing work
next year.
To help clarify the issues the Task Force provides the following discussion of pros and cons to an
action that was considered by the Task Force but not recommended at this time.
....continued on next page
GTFRR-0034( 12117/93 03:43 PM 15
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continued from previous page
Proposal Discussed:
Require that where adopted regulations address environmental impacts (e.g., critical area
ordinances, drainage regulations, impact fees), then such regulations would be presumed to
provide adequate mitigation under SEPA, absent extraordinary circumstances.
The Task Force reached complete consensus that SEPA and GMA should not provide "multiple
bites of the apple." There was a debate over the specific proposal:
PRO: [Tom Goeltz]
1. Seattle Example. This development regulation/SEPA integration currently is operating and
effective in Seattle, i.e. regulations are presumed adequate mitigation under SEPA.
2. Avoid Duplication. Each jurisdiction must adopt critical area ordinances under the GMA.
Further, most jurisdictions have drainage ordinances, grading ordinances and numerous other
environmental regulations, separate from SEPA. Since these address particular elements of
the environment, the regulations should be presumed adequate mitigation under SEPA absent
extraordinary circumstances. Otherwise, there are at least "two bites of the apple."
3. Local Autonomy Preserved. Local governments would choose the substance of their .
ordinances, and having done so would constitute the regulation of that particular
environmental impact.
4. Eliminate Delays. By continuing to subject projects to SEPA appeals when they otherwise
must meet the adopted environmental regulations, projects are substantially delayed.
CON: [Rod Brown]
1. Not duplicative. Although some jurisdictions like Seattle may have adopted comprehensive
development regulations that take some, but not all, environmental impacts into consideration,
most other jurisdictions do not have development regulations that would provide the type of
mitigation that would be imposed pursuant to SEPA. Furthermore, many of these
jurisdictions lack the expertise (and in some cases, the intent) to do so in the future. In
addition, there are some local jurisdictions that have not met the GMA deadlines for adopting
critical areas ordinances.
2. No Minimum Standards. Because the GMA does not specify minimum standards for critical
areas ordinances or the other development regulations of local government, there is no
assurance that these local ordinances will provide for adequate mitigation of the environmental
impacts of specific projects or that local autonomy will not result in inadequate development
regulations. We should wait until later in 1994 to evaluate the adequacy of the plans and
development regulations.
3. Lack Experience. No GMA comprehensive plans have yet been adopted establishing the
framework for development regulations. It is, therefore, premature to significantly change the
authority under SEPA to assure adequate environmental consideration and protection. The
proposal may be a good idea for the 1995 Legislature, but it is too early to do it now.
GTM-00340 12/17/93 03.45 PM 16
GMA Appeals Process
Purpose-
Amend the GMA to simplify the appeals process for review of GMA interim growth areas plans
and development regulations.
Nature of the Problem:
The jurisdiction of the Growth Management Hearings Boards is limited only to compliance with
the GMA and with SEPA, as it relates to the adoption of GMA interim growth areas, plans and
development regulations.. The Boards do not hear any claims related to constitutional issues or
procedural compliance with local or other state laws, including procedural compliance with a local
jurisdiction's SEPA ordinance. Furthermore, the authority to plan under the GMA is not
exclusive, and cities and counties continue to adopt land use-and environmental regulations
pursuant to SEPA, R.CW ch 36.70, their police powers, charters, etc. As a result, appeals of .
GMA interim growth areas as well as the comprehensive land use plans and development
regulations must be filed not only with the Growth Management Hearings Board, but also
simultaneously in superior court to ensure that issues regarding compliance with the GMA and
SEPA and constitutional and procedural challenges, can all be heard. In addition, local or agency
SEPA appeals processes have shorter appeal periods than the 60-day GMA appeal period and
may require that SEPA appeals be filed both with the Boards and in superior court in advance of y
the GMA appeal. Finally, any appeals of the Board's actions then must be filed in Thurston
County Superior-Court which has exclusive jurisdiction to hear those appeals.
Recommended Action:
Recommend to the Legislature:
1. An amendment to RCW 36.70A.290 to clarify that the 60-day appeal period also applies to
petitions to the Boards alleging that a state agency, county or city is not in compliance with
SEPA as it relates to the GMA plans and regulations.
2. An amendment to, RCW 36.70A.300 and the APA to remove Thurston County Superior
Court from the appeals process and provide for direct appeals of the Board's actions to the
Court of Appeals-where they can be consolidated with appeals from the parallel cases which
must be filed in local superior courts.
3. An amendment to GMA to authorize the GMA Hearing Boards to appoint hearing examiners
• and to allow the hearing examiners to make final decisions on behalf of the Boards.
Comments:
Task Force members agree with the goals to shorten the appellate process and eliminate the need
to file multiple, simultaneous appeals tq different hearing bodies and courts. However, none of
the specific proposals that were considered would have fully accomplished the goals. The Task
Force subcommittee fbrmed to study the integration of SEPA, GMA, and other land use and
environmental laws will give this issue high priority early in 1994 so that a more comprehensive
recommendation can be made to the Legislature.
GTM-0034f. 11117/93 03:45 PM 17
P
SEPA Appeals
Purpose:
Provide for a single SEPA appeal hearing on procedural issues.
Nature of the Problem:
SEPA allows, but does not require, local governments to establish a procedure for administrative
appeals on procedural issues. RCW 43.21C.075 permits only one agency appeal on procedural
issues. This has not been interpreted to restrict local governments from permitting multiple
hearings (e.g., before both a hearing examiner and city council) on procedural issues such as
declarations of non significance or adequacy of any EIS.
Recommended Action:
Recommend to the Legislature amendments to RCW 43.21.C.075 as follows for jurisdictions that
provide for SEPA appeals on procedural issues:
1. To require that SEPA appeal hearings on procedural issues be conducted by a hearing
examiner (unless the jurisdiction does not have a hearing examiner) who shall make a final
decision; and
2. To require that any further SEPA appeal on procedural issues shall be to Superior Court.
Comments:
Some local governments do not provide for any procedural or substantive SEPA appeals and they
will be able to continue not to do so. In addition, many local governments that provide for SEPA
appeals do not have hearing examiners. This amendment to SEPA will allow those local
governments without hearing examiners to continue to permit SEPA appeals to be heard by their
planning commissions, city councils, or county councils or commissioners. This amendment will
not affect the provisions of RCW 43.21 C.060 that require local SEpA appeals on substantive
issues (mitigation or denial) to be heard by the local legislative authority, "unless that legislative
authority formally eliminates such appeals".
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GTFRR-0034C 12/17/93 03:45 PM 18
Model Toxics Control Act
Purpose:
Exempt remedial actions conducted under DOE approval pursuant to the Model Toxics Control
Act (RCW ch.70.105D) from the procedural requirements of state and local environmental and
land use laws.
Nature of the Problem:
Prior to the adoption of the Model Toxics Control Act by Initiative 97 in 1989, RCW
70.105B.250 provided the following exemption from the procedural and substantive requirements
of state and local laws that would otherwise apply to remedial action conducted under approved .
settlement agreements:
A person conducting remedial action under an approved settlement agreement or the .
department conducting remedial action is exempt from the procedural and substantive
requirements of state and local laws that would otherwise apply to the remedial action,
including those requirements imposed by chapters 70.94, 70.105, 90.03, 90.44, and 90.58
RCW.
In addition, the Shoreline Management Act, SEPA, and other applicable state statutes included
similar exemptions. These exemptions were repealed by Initiative 97 and since then all remedial
actions, including those pursuant to settlement agreements and agreed orders have been subject to
the provisions of the State Environmental Policy Act and have been required to obtain various in
state and local permits. This could result in substantial delay in the cleanup process as well as
additional costs. Such additional permit reviews and costs do not seem warranted when the
remedial action is being conducted under an approved settlement agreement or agreed order
pursuant to WAC 173-340, especially because the remedial action is designed to enhance the
environment.
Recommended Action:
1. Recommend to the Legislature an amendment to the Mode! Tonics Control Act to add
language similarlo that formerly found in RCW 70.105B.250, which was repealed by
Initiative 97. The amendment should exempt remedial actions only from the procedural, not
the substantive, provisions of state and local environmental and land use laws. This
amendment should be broad enough to exempt all DOE-supervised cleanups now authorized
by the Model Toxics Control Act.
2. Amendments also may be required to Chapters 43.21C, 70.94, 70.105, 90.03, 90.44, 90.48,
90.58 and 90.62 R.CW, to provide exemptions from the procedural requirements of these
laws.
GTM-0034[ 12117/93 03:45 PM 19