¶35 (concurring in part and dissenting in part) — I join the majority to affirm the Western Washington Growth Management Hearings Board (Board) 2003 order upholding Skagit County’s (County) comprehensive plan under the Growth Management Act (GMA), chapter 36.70A RCW. However, I write separately because I would reverse the inconsistent 2005 Board order that determined that the County’s adaptive management processes under the affirmed comprehensive plan failed to comply with the GMA.
¶36 The majority’s decision that the legislature did not intend “protection” to further mandate enhancement is a correct reading of the statute and properly deferential to the County’s plan as also required by the statute. In dissent, I assert the same deference should apply to the County’s adaptive management program. In addition, the 2005 Board decision was flawed by consultation with an ex parte technical adviser and improperly relied on nonrecord materials.
¶37 While I concur with the chief justice’s affirmation of the 2003 Board order and the county plan, I address the important legal defects in the Board’s 2005 order.
Growth Management Hearings Boards Have Limited Discretion
¶38 The GMA provides for the creation of three regional growth management hearings boards to resolve some plan*438ning disputes under the statute. RCW 36.70A.250. The growth management hearings board members are not elected but are appointed by the governor for six-year terms (without legislative confirmation). RCW 36.70A.260. They do not have, indeed cannot have, legislative power over land use. It follows that they surely have no power to engage in the “adaptive management” of county lands.
¶39 The legislature has expressly required each growth management hearings board “to grant deference to counties and cities in how they plan for growth, consistent with the requirements and goals of” the GMA. RCW 36.70A.3201. Growth management hearings boards are limited in jurisdiction, possessing no policy-making authority. See Viking Props., Inc. v. Holm, 155 Wn.2d 112, 129, 118 P.3d 322 (2005).10 The GMA does not require a single approach to growth management or to adaptive growth management. See id. at 125-26 (“ ‘the ultimate burden and responsibility for planning, harmonizing the planning goals of [the GMA], and implementing a county’s or city’s future rests with that community’ ” (alteration in original) (quoting RCW 36.70A.3201)).
¶40 Under the GMA, the legislature requires that when a growth management hearings board considers challenges to the decisions of local government, it “shall find compliance unless it determines that the action by the state agency, county, or city is clearly erroneous in view of the entire record before the board and in light of the goals and requirements of this chapter.” RCW 36.70A.320(3) (emphasis added). Accordingly, “a board’s ruling that fails to apply this ‘more deferential standard of review’ to a county’s action is not entitled to deference from this court.” Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 154 Wn.2d 224, 238, 110 P.3d 1132 (2005). As the *439analysis provided below demonstrates, the Board’s 2005 order fails to accord the County the statutorily required deference. Accordingly, I would not defer to the Board’s 2005 order.
The County’s Adaptive Enforcement Mechanism Satisfies the GMA
¶41 The County’s program consists of two adaptive mechanisms: a water quality monitoring program (WQMP) and a salmon habitat monitoring program (SHMP). The WQMP measures water quality parameters and their importance to fish habitat. The methods and protocols are derived from guidelines created by state and federal agencies, including the United States Environmental Protection Agency (EPA), the Washington Department of Ecology (Ecology), and the United States Geological Survey. Admin. R. (AR) at 0109-10. The SHMP is based on EPA standards and was developed with the assistance of scientists from the EPA. See, e.g., AR at 0082-83, 0532-602, 0604-877, 0891-904, 0897-98.
¶42 Likewise, the County’s adaptive management program specifies statistical methods for reporting and analyzing data collected, requiring publication of an annual report and the raw data. See, e.g., AR at 0071, 0094, 0105-08. The program even includes a minimum three-year cycle legislative process for the County to consult with agencies and then consider proposals to amend a county ordinance (if the County decides that the desired protection level has not been achieved). AR at 0105-06. It is notable that the County’s three-year cycle is significantly shorter than the seven-year time period specified by the GMA. See RCW 36.70A.130(4)(b).
¶43 The majority argues that the County’s plan lacks evidence of sufficient benchmarks. Majority at 434. This is an inconsistent position, given the majority’s decision that *440“protection” does not require enhancement over and beyond the current fish run status. Here, the County’s monitoring and adaptive management programs were created in consultation with both state and federal agencies with expertise, including the Washington Department of Fish and Wildlife, Ecology, and the EPA. See AR at 0891-905, 0527-30, 0959-60, 0931-58, 0906-30. Strikingly, the County’s final decisions were supported by Ecology and the EPA. AR at 0525, 0970. Thus, the County’s program is consistent with state and federal programs and has been tailored — with the assistance of those respective agencies — to the County’s local circumstances. Id. Due diligence has been satisfied, as has RCW 36.70A.172(1)’s requirement that the County include the “best available science in developing policies and development regulations to protect the functions and values of critical areas.”
¶44 This court’s recent decision in Ferry County v. Concerned Friends, 155 Wn.2d 824, 123 P.3d 102 (2005), did not determine whether the best available science (BAS) requirement is procedural or substantive in character. I pointed out as much in my dissent. Id. at 855 (J.M. Johnson, J., dissenting). In my view, the BAS requirement is best understood as a procedural mandate requiring consideration of “best available science” by local government but continuing the deference to local decisions made after such consideration. As a procedural matter, the County’s determination in this matter clearly satisfied the BAS requirement. This conclusion is confirmed by the participation in and approval of the county plan by federal and state environmental agencies.
¶45 The majority asserts that the three-year window set aside for data collection is insufficient, precisely because the data has not yet been collected. Majority at 434-35. However, the County should not be penalized for adopting this three-year practice that is actually more protective than the GMA mandated seven-year review cycle. See RCW 36.70A.130(4)(b).
*441¶46 Additionally, the criticized three-year period for the collection of benchmark data is now moot. By the time this opinion issues, the benchmark data promised by the County will be available since this case concerns 2003-04 events. Yet, the majority argues that the Board should not approve the County’s plan without sufficient data collection measures in place. Majority at 435. This argument does not give the statutorily required deference to the County; indeed, it casts aspersions on the county’s assurances. Id. (“We find no reason to reverse the Board’s holding that such an assurance by the county is insufficient.”). The County had a plan to generate benchmark numbers but needed time to establish the comparative values. See Skagit County’s Opening Br. at 56. The Board should not overturn the County’s plan because it had not yet yielded results. Ironically, the results were not complete, precisely because the Board refused to allow implementation of the County’s plan.
¶47 In sum, if there is a plausible argument that some other enforcement mechanism might further the goals of the GMA, such as revised benchmarks, the County is free to consider any such proposal.11 The Board or a court may not make that decision for the County because neither possesses legislative powers. The county standards satisfy statutory requirements and common sense, and this court should do “no harm” to the GMA’s hallmark of local decision making. See Quadrant, 154 Wn.2d at 238.
¶48 Here, the County’s actions must be implemented by ordinances that utilize an open, deliberative process involving notice and public discussion. See RCW 36.70A.035; see also RCW 42.30.030 (“All meetings of the governing body of a public agency shall be open and public and all persons shall be permitted to attend any meeting of the governing body of a public agency . . . .”). This process protects the interests of all stakeholders by encouraging a fully devel*442oped public record. The various interested parties should be required to submit their recommendations and then allow the County to revise its management program through the appropriate deliberative and local legislative process.
Defects of the Board’s 2005 Order
¶49 The Board’s 2005 order is the product of procedural defects that separately require reversal. The Board’s reliance upon nonrecord materials constitutes a denial of proper procedures. Likewise, its reliance upon a secret “expert” to support the 2005 order did not adhere to common law principles of notice and verification. I recognize that a governmental entity does not have actual due process rights, as those rights are properly reserved for private parties. See City of Mountlake Terrace v. Wilson, 15 Wn. App. 392, 394, 549 P.2d 497 (1976). However, the Board’s conduct in this matter violates the same core common law principles that support the due process doctrine: openness and fair play. The rationale for open and balanced proceedings is spelled out in the Administrative Procedure Act (APA), chapter 34.05 RCW, the GMA, and growth management hearings boards procedures. These sources of authority embody fundamental principles of fairness that entitle parties to notice and the opportunity to respond to materials used against them in Board proceedings and decisions. Improper procedures are also grounds for reversal. See RCW 36.70A.290(4); WAC 242-02-540; see also RCW 36.70A.270(7); RCW 34.05.449(2), .452(3).
¶50 First, this Board based its analysis and conclusion largely upon four nonrecord documents. None of those publications were presented to the County or were part of the record. The Board did not notify the County before or during the hearing that it intended to rely on those publications. Nor did the Board afford the County opportunity to respond to the facts and assertions upon which it ultimately based its decision.
¶51 The majority contends that these distinctions are not dispositive because the mere use of such materials is *443not sufficient to transform the publications into evidence. Majority at 433-34. I disagree. The Board relied on the publications to inform its working definition of “adaptive management,” a key term used in the Board’s final decision. These secondary sources should have been available for scrutiny because a successful challenge to their credibility or relevance would have seriously undermined the Board’s final determination.12 One could reasonably assume that the sources’ analyses of conditions in other states (and counties) were much less relevant than the state and local experts who participated on behalf of the County.13 Second, the Board engaged an ex parte scientific consultant to review its draft decision and opine on the nonrecord sources it cited. Without notifying the parties, the Board procured the opinion of a retired environmental science professor, Oscar H. Soule, PhD.14 It belatedly issued a “Notice of Consultation” when it was too late to object or qualify the professor as a “consultant.” AR at 1328-46; see also supra note 13. The Board rejected all parties’ requests that it refrain from consulting this expert without appropriate notice.
¶52 RCW 36.70A.172(2) does authorize growth management hearings boards to retain scientific advice or experts to assist in reviewing petitions involving critical areas. The GMA does not, however, specify procedures for the Board to do so. Here, APA provisions govern the Board’s conduct except where they conflict with specific GMA provisions. *444RCW 36.70A.270(7). The majority notes that RCW 34.05-.455(1)(c) allows for ex parte communication with other employees or consultants of the agency “ ‘who have not participated in the proceeding in any manner.’ ” Majority at 433 (quoting RCW 34.05.455(1)(c)). However, a Board cannot arbitrarily rely on undisclosed and unqualified opinions. Here, the record does not establish that Dr. Soule met any statutory exception. Instead, the County and the tribe were denied the ability to review Dr. Soule’s “consultant” qualifications (or lack thereof) and cross-examine him concerning background, publications, and experience.15
¶53 In sum, Dr. Soule’s conclusion that the nonrecord sources contradicting the county plan “represent sound science” does not equate to the GMA’s more stringent BAS standard. The Board is clearly trying to bootstrap the “sound science” used by Dr. Soule into the BAS standard, a category that is properly limited to the best of all available “sound science” and by definition is an exclusive, rather than inclusive, term. In view of the Board’s failure to engage in an open process, its reliance upon this nonrecord “sound science” also requires reversal. Equally important, these several improper bases for the Board’s second order, especially its reliance on extra record materials, hamper meaningful judicial review.
Conclusion
¶54 In accord with the majority, I agree to affirm the Board’s 2003 order upholding the County’s comprehensive plan. Thus, I concur. However, I would reverse the Board’s 2005 order concerning Skagit County’s adaptive management regulations. I would remand this case to the Board *445and instruct the Board to remand immediately back to Skagit County. More than three years has transpired since the commencement of this action, and I would accept the County’s assurances that it will apply its process, including the benchmark provision, in good faith. The statutorily required deference should allow the County to implement its adaptive management while considering input from all interested parties.
Sanders, J., concurs with J.M. Johnson, J.
“[T]he growth management hearings boards do not have authority to make ‘public policy’ even within the limited scope of their jurisdictions, let alone to make statewide public policy.” Viking Props., Inc., 155 Wn.2d at 129. This opinion does not reach the broader constitutional question of whether these sui generis unelected boards, appointed by the governor, may overrule county legislators and micromanage land use plans for counties.
The parties involved in this litigation, as well as the agencies listed above, are encouraged to provide relevant scientific input to the Comity (as mandated by the GMA).
The four nonrecord publications did not even address the unique circumstances of Skagit County, and it seems unlikely that they were relevant to hearings to the Board. The studies did not address any geographic area inside Washington, but instead analyzed environmental conditions in California, Oregon, and British Columbia. See majority at 433 n.7. Even if the studies were held to be relevant, the County was deprived of any opportunity to rebut the issues addressed in the four nonrecord publications.
Moreover, none of the four nonrecord publications were admitted through a motion to supplement the record pursuant to WAC 242-02-540. The Board thereby failed to comply with APA requirements and its own rules for supplementing the record.
The Board did not qualify the “expert” as is normally required to ensure material testimony. See Wash. R. Evid. 702. Here, there was no adversarial process to determine the professor’s expertise or competency.
The County and the tribe had no chance to cross-examine Dr. Soule as his testimony was presented in a letter, not under oath. See Weyerhaeuser v. Pierce County, 124 Wn.2d 26, 33, 873 P.2d 498 (1994). Furthermore, the Board apparently failed to supply him the EPA protocols or any other materials upon which the County based its decision. AR at 1344. The Board apparently provided Dr. Soule only selected materials — all were exhibits presented by the Swinomish Indian Tribal Community. Id.