2.1 Types of Formal Agreements
There are several broad categories of formal agreements between governing bodies. The type of agreement is largely determined by the level of governance – such as international, inter-state, or local – as well as the types of provisions necessary to complete the agreement.
International agreements are legally-binding agreements between nations in written form. These agreements govern the rights, duties, and obligations of all participating nations. Formal international agreements are commonly referred to as treaties, conventions, charters, protocols, and pacts, among other titles.25 International agreements can be established bilaterally between two nations, or multilaterally between three or more nations. International agreements cannot bind non-participating nations. Generally, these agreements contain provisions that specify the date on which the agreement becomes legally binding, how compliance will be monitored and measured, how other nations may join the agreement, how and whether the agreement may be amended or modified, and how and when the agreement will terminate.25
At the sub-national level, agreements can also exist across independent governmental jurisdictions, including states or provinces. An example of formal coordination agreements within the United States is that of inter-state compacts. Inter-state compacts are written, legal agreements between states that bind member states to their provisions. These compacts create an agreement between states to adopt certain standards, cooperate on regional or national matters, or address a particular policy issue that transcends state boundaries.26The agreement is negotiated between the involved states and establishes a framework for administering and implementing the compact’s provisions. These frameworks vary in content depending on the subject matter, complexity, and scope of the agreement. For example, simple frameworks may prescribe certain conditions in which member states must comply with the compact, or that require the states to coordinate in furthering the purpose of the compact. In contrast, complex frameworks may delegate authority to commissions and describe the organizational structure, powers and authorities, dispute resolution, and public accountability for these commissions.27
Another example of coordination at the sub-national level occurs through inter-agency agreements. This type of agreement can take place between agencies at the same level of governance – such as between two counties or between two or more executive branch agencies – or across levels of governance, such as between state and local agencies. Interagency agreements can take several forms, such as a Memorandum of Agreement (MOA) or a Joint Powers Agreement (JPA), each of which set up a differing legal structure for coordination (See Box 2a).
Box 2a. Legal Structures for Interagency Agreements –
Example from California
Under California’s Sustainable Groundwater Management Act (SGMA), interagency coordination agreements were created to collaborate on the planning of sustainable groundwater management. Agencies partnering to form Groundwater Sustainability Agencies and develop groundwater sustainability plans could choose to form a Joint Powers Agreement (JPA), thus creating of a new legally distinct collaborative agency through which coordination would occur or they could choose to sign a Memorandum of Understanding (MOU), under which coordination occurred through the existing institutional structures. Choices varied across the state, and often reflected considerations of the depth of collaboration sought, whether or not agencies wanted to delegate implementation responsibilities to a newly formed entity, and concerns about liability and legal contracting.
In the Eastern San Joaquin Subbasin, twenty-one local level agencies joined together using a JPA in order to fulfill the state’s groundwater sustainability mandate. The “Joint Exercise of Powers Agreement Establishing the Eastern San Joaquin Groundwater Authority”creates a new governing body, the Eastern San Joaquin Groundwater Authority (ESJGA), which is legally distinct from the agencies that formed it. The ESJGA is governed by a Board of Directors, which is comprised of representatives from each member agency, and has the authority to make binding decisions on behalf of its members. Under the JPA, ESJGA has the power to borrow funds; to adopt rules and policies; to perform all necessary actions to carry out the terms of the agreement; and to coordinate the exercise of the common powers of the member agencies. The JPA does not grant the ESJGA the authority to control individual member agency’s internal matters, which include police powers, land use authorities, and legal rights to water supplies.
In the Merced Subbasin, fourteen agencies jointed together using a MOU in order to fulfill the state’s groundwater sustainability mandate. The sets up a formal mechanism through which agencies will coordinate, yet does not create a new legally distinct entity. Rather, individual agencies retained their authority and agree to a process through which they will jointly make decisions and take action. The MOU formed a Coordination Committee, which has equal representation from each member agency. Unlike ESJGA, the Coordination Committee does not make binding decisions; rather, it makes recommendations to its members agencies, each of which decides individually whether or not to accept the recommendation. The Coordination Committee has the authority to make recommendations on the following actions: adoption of rules and policies, approval of contracts, budgets, and approval of the finalized groundwater sustainability plan.
A MOA is a written document describing the specific responsibilities of, and actions to be taken by, each of the agencies in the agreement. Some agencies use the term “MOA” interchangeably with a similar term called an MOU (Memorandum of Understanding). While there is no established legal distinction between the two terms,29 some agencies designate MOUs as legally-binding contracts and MOAs as less formal and non-binding agreements.30
MOA/MOUs serve a wide variety of purposes, so they may contain variable levels of detail and different sets of provisions.28 In general, MOA/MOUs will list each cooperating party and describe their roles and responsibilities.29 In addition, MOA/MOUs often include a description of the mutual goals of the coordinating parties, as well as provisions about decision-making procedures, agreement implementation, funding, dispute resolution, communication standards, and amending or terminated the agreement.28 MOA/MOUs come into force once all parties sign it. Importantly, both parties continue to operate as distinct entities and their commitment to collaborate is limited to the terms of the agreement.
A JPA is a written agreement between public entities that formalizes coordination on the exercise of a common power. Unlike an MOA/MOU, a JPA creates a new, public agency that operates as a separate legal entity from its members.28,30The acronym “JPA” can have multiple meanings, as it may refer to the agreement itself (a Joint Powers Agreement) or to the new agency created through the agreement (called a Joint Powers Authority or Joint Powers Agency).31
Like an MOA/MOU, JPAs describe the parties involved in the agreement along with their roles and responsibilities. However, JPAs also regularly include sections about the parties’ intent to form a separate entity, their purpose in doing so, the powers of the JPA, and the manner in which those powers will be exercised. JPAs also typically describe the internal organization of the newly formed partnership, including membership and voting procedures. This type of agreement comes into force once it has been authorized by the member agencies’ governing bodies, once representatives from all parties have signed the agreement, and once proper notice has been given to any necessary authorities such as the Secretary of State.28