Governor Hickenlooper's Executive Order regarding unfunded mandates

[Ken M]

This will hopefully provide local governments with some relief from
unfunded state mandates - time will tell...Ken.

EXECUTIVE ORDER D 2011-005
Establishing a Policy to Enhance the Relationship between State and
Local Government
Pursuant to the authority vested in the Office of the Governor of the
State of Colorado, I, John W. Hickenlooper, Governor of the State of
Colorado, hereby issue this Executive Order directing state agencies
to take specific steps to enhance relations with local government.
I. Background and Purpose
For many years state government has imposed an ever-increasing number
of legal requirements on local governments, without regard to the
costs such requirements impose on already-strained local budgets, and
without providing additional funding to enable local governments to
comply. Local governments continue to face difficulties such as
funding, complexity, and delay in securing flexibility and approvals
regarding state requirements.
Local governments should have more flexibility to design solutions to
problems without excessive interference or oversight, or unnecessary
regulation, from state government. In addition, local governments
should not be expected to implement laws and regulations without the
funding necessary to do so. In order to assist local governments in
effectively complying with such requirements, this Executive Order
gives direction to state agencies on consulting and working with local
governments before imposing new regulations or other obligations.
II. Directive and Scope
A. To the extent authorized by law, no state agency shall promulgate
any regulation creating a mandate on local governments unless:
1. The mandate is specifically required by federal or state law;
2. The agency consults with local governments prior to promulgation of
the regulation; and
3. The state government provides the funding necessary to pay for the
direct costs incurred by local governments in complying with the
mandate.
B. Each agency, prior to the formal promulgation of regulations
containing the proposed mandate, shall provide to the Director of the
Governor’s Office of State Planning and Budgeting a description of the
nature and extent of the agency’s consultation with representatives of
the local governments that would be affected by the proposed mandate,
the nature of their concerns, any written communications or comments
submitted to the agency by such units of local government, and the
agency’s reasoning supporting the need to issue the regulation
containing the mandate.
C. Each agency shall develop a process to actively solicit the
meaningful and timely input of elected officials and other
representatives of local governments into the development of
regulatory proposals affecting local government. Each agency shall
implement its process as soon as practicable and post the process on
its website.
D. Each agency that is permitted by law to grant temporary or
permanent waivers of statutory or regulatory requirements shall adopt
rules for granting waivers if a local government can demonstrate that
the requirements conflict with other regulations or statutes, or are
unduly burdensome. Each State agency shall prepare and publish on its
website a policy describing the circumstances in which temporary or
permanent waivers will be granted, and the criteria required for
obtaining a waiver.
E. Each agency shall consider any application by a local government
for a waiver of statutory or regulatory requirements in light of the
goal of increasing opportunities for local governments to exercise
flexibility in seeking to comply with statutory or regulatory
requirements.
F. To the fullest extent practicable and as permitted by law, each
agency shall render a decision on an application for waiver within 90
days of receipt of such application by the agency. If the application
for waiver is not granted, the agency shall provide the applicant
local government with timely written notice of its decision and the
reasons for its decision.
G. The executive director of each agency shall be responsible for
ensuring implementation of, and compliance with, this Executive Order.
H. Executive agency means any authority of the State of Colorado that
is an “agency” pursuant to C.R.S. § 24-3-101.
III. No Creation of Rights
This Executive Order is intended only to improve intergovernmental
operations, and is not intended to, and does not, create any right or
benefit, substantive or procedural, enforceable at law or equity by
any party against the State of Colorado, its agencies, officers,
employees, or any other person. This Executive Order shall not be used
as a basis for legal challenge to statutes, regulations, or other
actions or to any inaction of any state agency subject to it.
IV. Duration
This Executive Order shall remain in full force and effect until
modified or rescinded by future Executive Order of the Governor. This
Executive Order supersedes Executive Order D 0007 94.

GIVEN under my hand and the Executive Seal of the State of Colorado
this eleventh day of January, 2011.
John W. Hickenlooper
Governor

[Ben-UWLLC]

Not sure the governor understands the Clean Water Act and what the
"delegation" of regulatory powers to Stated (i.e., Colorado) contains. It
is my understanding that unless the State complies with the federal law, EPA
can take away the delegation and promulgate its own discharge regulations
and proceed to issue MS4 NPDES discharge permits directly.

The issue of letting EPA to take over was discussed ever since, and before,
I became a member of the Colorado Water Quality Control Commission in the
early 1980 and was rejected each time at the strong and loud request of the
dischargers, who believed that it was much easier to deal with the State
versus the EPA. So, I would not read into this too much as a relief to new
federal mandates, which the State is obligated to follow; although it may
delay their implementation for some time. Note, this executive order does
not rescind any existing regulations/mandates

Ben Urbonas

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