Water Districts Caucus On Voting Positions

WATER DISTRICTS CAUCUS COMMENTS

PLANNING UNIT REPRESENTATION AND PROCEDURE 

OCTOBER 15, 2013 

General Comments. The Water Districts Caucus reviewed Bellingham’s proposal on Planning Unit representation at our meeting on October 14, 2013. It would have been our preference to move the process forward without reviewing credentials, at least at this point, but are cooperating with the preference of the group to perform this assessment. With that disclaimer, we find Bellingham’s suggestions to be reasonable, on the whole, but do have a few comments and would like to place a few questions on the table.

Bellingham treats every member of the Planning Unit as a caucus, posits three types of such caucuses and proposes categorizing participants into those three categories. However, Bellingham, the PUD, the County and the Port are not caucuses – that is, groups of entities united by particular interests. They are specific local government entities that have been deemed sufficiently distinct to warrant direct representation on the Planning Unit. We agree with the process proposed for validating the representation of these entities.

The WRIA 1 Planning Unit caucuses consist of other local governments, certain local interests, and state and federal governments. As proposed, Category 2 would consists of caucuses of smaller local government units, state and federal governments and the Non-Municipal Water Systems.

Those local governments with caucus seats (Small Cities, Water Districts and Diking and Drainage Districts) have been created pursuant to enabling statutes and are headed by elected officials. Every one of the local government caucuses represents a relatively small number of entities, each having identical statutory powers. The 10 water districts in our caucus, for example, are organized under RCW 57 and headed by elected commissioners. These smaller local government entities were organized into caucuses for administrative convenience, in order to allow for a manageable Planning Unit meeting process. The inherent legitimacy of such entities, which represent voters and property owners pursuant to state law, is precisely equal to that of those local government entities having direct representation at the Planning Unit. We agree with the process proposed for validating the representation of local government caucuses as described under Category 2.

Non-Municipal Water Systems. The Non-Municipal Water Systems (i.e., water associations) are private business interests - not local governments. We understand Non-Municipal Water Systems Caucus represents a very large number – perhaps hundreds - of water associations. As such, we believe the Non-Municipal Water Systems Caucus should be subject to the process proposed for validating the representation of other interests under Category 3.

State. For several reasons, we question DOE’s participation as a full-fledged voting member of the Planning Unit. The Watershed Planning Act envisions a planning process driven primarily by local citizens and their governments, with participation from the tribes and a wide range of local water resource interests. 1 The role of the state in this process was to be mainly advisory and not directive:

 “If a planning unit requests technical assistance from a state agency as part of its planning activities under this chapter and the assistance is with regard to a subject matter over which the agency has jurisdiction, the state agency shall provide the technical assistance to the planning unit.” RCW 90.82.030(2),

“Each state agency with regulatory or other interests in the WRIA or multi-WRIA area to be planned shall assist the local citizens in the planning effort to the greatest extent practicable, recognizing any fiscal limitations. In providing such technical assistance and to facilitate representation on the planning unit, state agencies may organize and agree upon their representation on the planning unit. Such technical assistance must only be at the request of and to the extent desired by the planning unit conducting such planning. The number of state agency representatives on the planning unit shall be determined by the initiating governments in consultation with the governor's office.” RCW 90.82.060(7).

The latter citation contemplates that non-state members of the Planning Unit will decide on state participation. We believe that DOE has a valuable role to play in coordinating presentation of technical information from state agencies to the Planning Unit, but that continuing to vote on the same basis as local governments will prove problematic.

The Watershed Planning Act states:

“The planning unit shall not add an element to its watershed plan that creates an obligation unless each of the governments to be obligated has at least one representative on the planning unit and the respective members appointed to represent those governments agree to adding the element that creates the obligation. A member's agreeing to add an element shall be evidenced by a recorded vote of all members of the planning unit in which the members record support for adding the element.” RCW 90.82.130(3).

This provision applies to the narrow question of obligations created in the proposed plan. It does not require DOE to vote on all aspects of the local plan. Placing DOE in the position to frame recommendations for its own consideration is illogical and inconsistent with the intent and design of RCW 90.82.

This inconsistency is especially troublesome in connection with modifying instream flow rules, an activity included in the scope of work for WRIA 1. The Watershed Planning Act provides that 3 instream flow rules shall not be modified “…unless the members of the local governments and tribes on the planning unit by a recorded unanimous vote request the department to modify those flows…” RCW 90.82.080(1)(a)(i).² At that point, it would seem to be the intent that DOE would undertake rule-making. RCW 90.82.080(1)(b). DOE’s participation in formulating proposed minimum stream flow rules as a full voting member of the Planning Unit prior to rule-making, however, could invalidate the rules under the Administrative Procedures Act (RCW 34.05).

We believe the best procedure would be for the non-state members of the Planning Unit to define the state’s technical assistance role and for the state’s voting to be confined to those instances where obligations would be imposed.

Federal. We could find no grounds for including the federal government as a voting member of the WRIA 1 Planning Unit. We recommend the federal government be invited to participate ex officio.

Agriculture. Since the Planning Unit was first formed in 1999, two irrigation districts have been formed. We believe these are governmental entities under RCW 87 entitled to representation on the Planning Unit as an additional local government caucus. Because these districts are defined territorially, we propose that the Agricultural Interest caucus should remain and be filled by interests not included under the irrigation districts.

Procedure. The procedural matter we would like to point out is in connection with a request to DOE to modify instream flow rules, as noted above under RCW 90.82.080(1)(a)(i). This situation would require a recorded unanimous vote of only the local government members of the planning unit (since the tribes are not participating at the Planning Unit). Not only does this procedure exclude interests and state government from voting, it may prevent caucus representation for that particular question. This should be reflected in the Process and Procedural Agreement.

1 The statute provides that the tribes will be invited to participate. RCW 90.82.060(4).

2 We note that DOE is precluded from voting on this question.