Gerald Cormick: June 29, 2011 1 NEGOTIATING SUSTAINABLE AGREEMENTS ACR Environment and Public Policy Section June 29, 2011, Portland, OR Gerald W. Cormick

Gerald Cormick: June 29, 2011Gerald Cormick: June 29, 2011 11

NEGOTIATING SUSTAINABLE NEGOTIATING SUSTAINABLE AGREEMENTSAGREEMENTS

ACR Environment and Public ACR Environment and Public Policy SectionPolicy Section

June 29, 2011, Portland, ORJune 29, 2011, Portland, OR

Gerald W. CormickPhone: 425 745-0832 [email protected]

www.geraldcormick.com


The Importance of implementation The Importance of implementation

provisions increases withprovisions increases with The need for The need for

cooperation to cooperation to implementimplement

The time span of the The time span of the agreement agreement

The importance of the The importance of the relationshipsrelationships

The importance of the The importance of the issuesissues

The complexity of the The complexity of the issuesissues

The need to share The need to share resources and authorityresources and authority

The level of uncertainty The level of uncertainty The potential impact of The potential impact of

external factorsexternal factors The need to “learn by The need to “learn by

doing”doing”


A Sustainable Agreement is a A Sustainable Agreement is a Flexible Agreement Agreement

Capable of “learning”Capable of “learning”Designed to evolveDesigned to evolveJointly administeredJointly administeredClear decision making procedures Clear decision making procedures

and responsibilitiesand responsibilitiesAdequately fundedAdequately funded


The Four Cornerstones of The Four Cornerstones of Sustainable AgreementsSustainable Agreements

1.1. Adaptive ManagementAdaptive Management

2.2. A “test drive”A “test drive”

3.3. Purpose-built implementation Purpose-built implementation structurestructure

4.4. Dispute management systemDispute management system


Principles of Principles of “adaptive management”“adaptive management”

““If we make decisions and commit resources If we make decisions and commit resources based upon our present knowledge we are based upon our present knowledge we are likely to make poor choices and may even likely to make poor choices and may even make the problem worse. If we wait until we make the problem worse. If we wait until we know all we would like to know, it may be know all we would like to know, it may be too late to solve the problem.”too late to solve the problem.”


Process of Process of “adaptive management”“adaptive management”


Adaptive managementAdaptive management requiresrequires

Embracing risk and uncertainty as a part of effective Embracing risk and uncertainty as a part of effective decision-making decision-making

Specific provisions in the agreement Specific provisions in the agreement Explicit recognition of uncertainties Explicit recognition of uncertainties Identification of learning objectivesIdentification of learning objectives Iterative decision-making: evaluating results and Iterative decision-making: evaluating results and

adjusting actions based upon the what is learnedadjusting actions based upon the what is learned Time and resources for monitoring and feedbackTime and resources for monitoring and feedback


Taking a “test drive”Taking a “test drive”

Identify assumptions Identify assumptions and make them explicitand make them explicit

Test each assumptionTest each assumption Test feasibility Test feasibility

TechnicalTechnical FiscalFiscal TimeTime LegalLegal Social and culturalSocial and cultural PoliticalPolitical

Practice processesPractice processes

Test agreement against Test agreement against foreseeable situations foreseeable situations (the “what ifs”)(the “what ifs”)

Economic changesEconomic changes Legal or regulatory Legal or regulatory

changeschanges Physical world (climate Physical world (climate

change, etc.)change, etc.) Identify provisions that Identify provisions that

require more explicit require more explicit understandings understandings

Modify agreementModify agreement


Recognizing, raising Recognizing, raising and clarifying issuesand clarifying issues

Procedures for Procedures for resolving differencesresolving differences

Time constraints and Time constraints and deadlinesdeadlines

ResolutionResolution Special teamsSpecial teams MediationMediation ArbitrationArbitration Escalation Escalation

Consequences for Consequences for non-resolutionnon-resolution

Issue and dispute managementIssue and dispute management


ExamplesExamples

Lower Colorado Multi-Species Lower Colorado Multi-Species Conservation PlanConservation Plan

Rocky Reach Dam RelicensingRocky Reach Dam Relicensing



LCR MSCP LCR MSCP Adaptive Management StrategyAdaptive Management Strategy

Current five year cycleCurrent five year cycle

Identify best current knowledgeIdentify best current knowledge Establish monitoring and Establish monitoring and

research priorities for each research priorities for each work plan itemwork plan item

Identify and describe Identify and describe implementation challengesimplementation challenges

Review and apply accumulated Review and apply accumulated datadata

Next five year cycleNext five year cycle

Priority 1: complete ongoing Priority 1: complete ongoing research and monitoringresearch and monitoring

Priority 2: new research and Priority 2: new research and monitoring needs base on monitoring needs base on ongoing workongoing work

Priority 3: refine and update Priority 3: refine and update data setsdata sets

Five year planning cycle


LCR MSCP Governance StructureLCR MSCP Governance Structure

Program Manager

Secretary

Dept. of Interior

Regional Director

Bureau of Rec.

Steering

Committee

ad hoc committees

Habitat Restoration

GroupFish Group

WildlifeGroup

AdaptiveMgmt

Coordinator

WorkingGroup


Key ElementsKey Elements

Design based on successful negotiating Design based on successful negotiating structurestructure

Clear delineation of authority and Clear delineation of authority and responsibilityresponsibility

Steering Committee operates by consensusSteering Committee operates by consensus Steering Committee approves budgets and Steering Committee approves budgets and

work planswork plans Adaptive management is central focus of Adaptive management is central focus of

structure and planningstructure and planning


LCR MSCP DISPUTE RESOLUTION PROCESSLCR MSCP DISPUTE RESOLUTION PROCESS

One of states or aggregate of One of states or aggregate of six “votes” in dissentsix “votes” in dissent

Informal meetings and Informal meetings and discussionsdiscussions

Confirm resolution via PM or Confirm resolution via PM or make new decision or direct make new decision or direct process for further resolution process for further resolution effortsefforts

Letter to identify issues, relief Letter to identify issues, relief sought, supporting documentssought, supporting documents

Regional Director uses “good Regional Director uses “good offices”offices”

Appeal requires state or 15 Appeal requires state or 15 “votes” Could lead to “votes” Could lead to discussions with Governors discussions with Governors before making decisionbefore making decision

Determine if dispute exists

Written request to reconsider decision

Program Manager works to resolve issues

Steering Committee convenes to resolve issues

Letter to confirm continued dispute

Bureau of Rec. Regional Director renders decision

Appeal to Interior Secretary

10 days

30 days

10 days

30 days

? days



Disagreement requires effortDisagreement requires effortOpportunity for informal dispute resolutionOpportunity for informal dispute resolutionClear time linesClear time linesNeed to formally and institutionally define Need to formally and institutionally define

issuesissuesThe “buck stops” with the SecretaryThe “buck stops” with the Secretary


Rocky Reach Implementation StructureRocky Reach Implementation Structure

PolicyCommittee

•Senior representatives with authority to assign resources•Operate by consensus

Executive (Dispute Resolution)

Committee

(Tribal) CulturalForum

RecreationForum

WildlifeForum

FishForum

•Parties are members•Independent, funded chair (for 10 years)•Consensus•Public can participate

•Parties are members•Select chair from members•Consensus•Public can participate

•Tribes, agencies and PUD are members•Meetings are closed•Meeting notes are confidential

•Senior executives of parties to agreement



Key policy makers are kept involvedKey policy makers are kept involvedDefined level of authority for committee Defined level of authority for committee

membershipmembershipAll bodies operate by consensusAll bodies operate by consensusProcess provisions specifically designed Process provisions specifically designed

to meet the needs of the individual forumsto meet the needs of the individual forumsCarefully defined time constraints for Carefully defined time constraints for

annual decision makingannual decision making


Rocky Reach Dispute Resolution ProcessRocky Reach Dispute Resolution Process

Forum member provides written Forum member provides written notice of notice of disagreement on on organization’s letterhead. organization’s letterhead.

Formal and informal meetings Formal and informal meetings

and discussionsand discussions Policy Committee may resolve Policy Committee may resolve

dispute, refer it back to the forum dispute, refer it back to the forum with recommendations or call for with recommendations or call for other dispute settlement processother dispute settlement process

Executive Committee may resolve Executive Committee may resolve dispute, refer it back to the forum dispute, refer it back to the forum with recommendations or call for with recommendations or call for other dispute other dispute settlement process process

Program Manager works to resolve issues

Policy Committee convenes to resolve issues

Policy Committee preparesrevised statement of issues

Executive Committee convenes to resolve issues

21 days*

30 days

30 days

Forum Chair declares dispute

*For time sensitive issues there is an expedited process

Any party may withdrawFrom agreement



Requires formal, organizational decision to Requires formal, organizational decision to create a disputecreate a dispute

Opportunity for informal dispute resolutionOpportunity for informal dispute resolution Focus on policy via early involvement with Focus on policy via early involvement with

Policy CommitteePolicy Committee Encourages use of variety of dispute Encourages use of variety of dispute

resolution toolsresolution tools Escalation to senior executives and Escalation to senior executives and

unattractive optionunattractive option

Documents

Gerald Cormick: June 29, 2011 1 NEGOTIATING SUSTAINABLE AGREEMENTS ACR Environment and Public Policy Section June 29, 2011, Portland, OR Gerald W. Cormick