Using Consensus-Building and Collaboration in the Context of FACA

David Emmerson - DOI CADRDeborah Dalton – EPA CPRC

Introduction

Office of Collaborative Action and Dispute Resolution Upstream/Downstream

EPA Conflict Prevention and Resolution Center

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What is Consensus?

Distinguish From Majority Vote

A Package of items Everyone can Live with

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What is Collaboration?

Collaborative Behavior Collaborative Problem-Solving

“Shared Decision-Making” “Little d” decisions---Agency still has

ultimate authority.

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Federal Government is Increasingly Endorsing Collaboration

Societal Trend—Watershed Groups/Volunteerism

Joint OMB/CEQ Memo—Principles of Agency Engagement

Cooperative Conservation Initiative

FACA Regulations Establishment of

United States Institute of Environmental Conflict Resolution

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Benefits of Consensus-Building/Collaborative Problem-Solving

Build Trust Emphasis Placed on Planning Group buy-In on Decisions Solutions Gain Durability Enhances Legitimacy of Decisions Encourages Creative thinking Builds relationships that may last into

other Projects.

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FACA Committees--Good Candidates for Consensus Decision-Making

FACA Requirements Overlap With Best Practices: Balanced Membership/Identify All

interests Stated Purpose and Need/Assess Conflict Public Meetings/Transparency Advance Notice of Meetings/Planning,

Structure, Minutes, Record-KeepingDD

Use of Neutral

Difference Between Facilitator and Mediator

Can perform an “Assessment” Have No Stake in Matter Allow Parties to focus on Substance Can Help parties through difficult

Negotiations

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Qualifications Of Neutral

Manage Complex Information and Data Coordinate Communications and Activities Personal Qualities: Credibility, Sensitivity,

Presence, and Persistence Ability to write clearly and effectively Neutrals Should be Familiar With

Underlying Concepts of FACA

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Qualifications Of Neutral

Communicate and Listen Effectively Analyze and Assess Conflicts Design Process with Parties Promote Interest-Based Negotiations Organize and Manage Meetings Ensure full participation, help

develop structural Integrity of GroupDD

Where to Get a Neutral

In House Concerns: Trust of Parties, Experience, Skills, Time

Private Practice Costs Contracting issues

Other Federal agencies

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Concerns When Using Neutral

Clearly Define roles of Neutral and DFO and Chairperson

Management concerns regarding loss of control or status or delegation of tasks

Costs Is Neutral Doing his/her job?

(Maintaining Neutrality, trust of parties, etc.)

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Challenges of Using FACA as Vehicle for Collaborative Problem Solving

Caucuses of interest groups or between interest groups

Use of workgroups Between meetings work of members Appointing relevant members in a timely

way Timeliness of decision making within

vertical hierarchy of agency

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FACA Committees That Have Used Consensus-Building

NPS Overflights

RAC Committees

Negotiated Rulemaking Committees

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NPS Overflights

FAA/NPS/Tribes/Air Tours/Conservation Groups

SubCommittee of NP Advisory board

Mediated by Phil Harter

Group reaches consensus on National Rule for Air Tour Overflights—adopted by Congress in Legislation

BLM Resource Advisory Committees

Set Up to bring wide range of perspectives together to advise BLM on Resource Management Issues

Many have used Collaborative Problem Solving and Consensus-building to reach agreements on Recommendations (Steens Mountain, Central Montana, many others)

Negotiated Rulemaking

Special Kind of FACA Committee Convened under Negotiated Rulemaking

Act Aside from standard FACA requirements,

also requires: use of convenor, use of facilitator.

Becoming more popular at DOI—Cape Cod, Fire Island, Golden Gate, Cape Hatteras (Interplay of NEPA/FACA/REG-NEG)

National Seashore Off-Road Driving Negotiated National Seashore Off-Road Driving Negotiated RulemakingRulemaking

Cape Cod National Seashore - Cape Cod National Seashore - needed to develop new needed to develop new regulations to control access regulations to control access and routes of off-road and and routes of off-road and beach driving of tourists, beach driving of tourists, nature lovers, residents and nature lovers, residents and fishermen.fishermen. protect the fragile dunes protect the fragile dunes provide critical habitat for provide critical habitat for

nesting/fledging endangered nesting/fledging endangered Piping Plover.Piping Plover.

existing regulations evolved existing regulations evolved over a period of 35 years over a period of 35 years

long-standing and serious long-standing and serious controversy between park and controversy between park and stakeholders. stakeholders.

Need to Collaborate, but No FACA Committee in Sight?

Options: Outside Contractor Non-Fed entity Form FACA

Committee Form FACA

Subcommittee Public Meetings that

don’t result in Group Recommendation

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Some Tools for Collaborative Problem-solving

Basic Principles for Agency Engagement in Environmental Conflict Resolution and Collaborative Problem-Solving

Ground Rules

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Basic Principles

Informed Commitment Balanced, Voluntary Representation Group Autonomy Informed Process Accountability Openness Timeliness Implementation

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Importance of Ground Rules

Replacement for Roberts Rules of Order Describe Scope and Limit of Negotiation Define Operating Procedures Define Roles and Responsibilities Try Out Parties Negotiation Style Set a Productive Tone Demonstrating

Parties’ ability to Agree

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Ground Rules Should Address:

Purpose and Scope Decision-Making and

Ratification Process Representation, Roles,

and Responsibilities Alternate representatives Procedural Requirements,

Sunshine Laws, Confidentiality

Behavioral Guidelines Organization and Conduct

of Process

Ground Rules Should Address:

Time Frame and Schedule Communication with Constituents, the

Public and Media Facilitator and Chairperson roles and

Responsibilities Funding Issues for Parties and Process

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Read More About It!

www.doi.gov/cadr/

www.epa.gov/adr

www.ecr.gov