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NEGOTIATING SUSTAINABLE AGREEMENTS

NEGOTIATING SUSTAINABLE AGREEMENTS. ACR Environment and Public Policy Section June 29, 2011, Portland, OR. Gerald W. Cormick Phone: 425 745-0832  jerry.csegroup@jerrycormick.com www.geraldcormick.com. The need for cooperation to implement The time span of the agreement

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NEGOTIATING SUSTAINABLE AGREEMENTS

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  1. NEGOTIATING SUSTAINABLE AGREEMENTS ACR Environment and Public Policy Section June 29, 2011, Portland, OR Gerald W. Cormick Phone: 425 745-0832  jerry.csegroup@jerrycormick.com www.geraldcormick.com Gerald Cormick: June 29, 2011

  2. The need for cooperation to implement The time span of the agreement The importance of the relationships The importance of the issues The complexity of the issues The need to share resources and authority The level of uncertainty The potential impact of external factors The need to “learn by doing” The Importance of implementation provisions increases with Gerald Cormick: June 29, 2011

  3. A Sustainable Agreement is a Flexible Agreement • Capable of “learning” • Designed to evolve • Jointly administered • Clear decision making procedures and responsibilities • Adequately funded Gerald Cormick: June 29, 2011

  4. The Four Cornerstones of Sustainable Agreements • Adaptive Management • A “test drive” • Purpose-built implementation structure • Dispute management system Gerald Cormick: June 29, 2011

  5. Principles of “adaptive management” “If we make decisions and commit resources based upon our present knowledge we are likely to make poor choices and may even make the problem worse. If we wait until we know all we would like to know, it may be too late to solve the problem.” Gerald Cormick: June 29, 2011

  6. Process of “adaptive management” Gerald Cormick: June 29, 2011

  7. Adaptive managementrequires • Embracing risk and uncertainty as a part of effective decision-making • Specific provisions in the agreement • Explicit recognition of uncertainties • Identification of learning objectives • Iterative decision-making: evaluating results and adjusting actions based upon the what is learned • Time and resources for monitoring and feedback Gerald Cormick: June 29, 2011

  8. Identify assumptions and make them explicit Test each assumption Test feasibility Technical Fiscal Time Legal Social and cultural Political Practice processes Test agreement against foreseeable situations (the “what ifs”) Economic changes Legal or regulatory changes Physical world (climate change, etc.) Identify provisions that require more explicit understandings Modify agreement Taking a “test drive” Gerald Cormick: June 29, 2011

  9. Recognizing, raising and clarifying issues Procedures for resolving differences Time constraints and deadlines Resolution Special teams Mediation Arbitration Escalation Consequences for non-resolution Issue and dispute management Gerald Cormick: June 29, 2011

  10. Examples • Lower Colorado Multi-Species Conservation Plan • Rocky Reach Dam Relicensing Gerald Cormick: June 29, 2011

  11. Gerald Cormick: June 29, 2011

  12. Current five year cycle Identify best current knowledge Establish monitoring and research priorities for each work plan item Identify and describe implementation challenges Review and apply accumulated data Next five year cycle Priority 1: complete ongoing research and monitoring Priority 2: new research and monitoring needs base on ongoing work Priority 3: refine and update data sets LCR MSCP Adaptive Management Strategy Five year planning cycle Gerald Cormick: June 29, 2011

  13. LCR MSCP Governance Structure Secretary Dept. of Interior Steering Committee Regional Director Bureau of Rec. Working Group Program Manager Adaptive Mgmt Coordinator ad hoc committees Habitat Restoration Group Fish Group Wildlife Group Gerald Cormick: June 29, 2011

  14. Key Elements • Design based on successful negotiating structure • Clear delineation of authority and responsibility • Steering Committee operates by consensus • Steering Committee approves budgets and work plans • Adaptive management is central focus of structure and planning Gerald Cormick: June 29, 2011

  15. One of states or aggregate of six “votes” in dissent Informal meetings and discussions Confirm resolution via PM or make new decision or direct process for further resolution efforts Letter to identify issues, relief sought, supporting documents Regional Director uses “good offices” Appeal requires state or 15 “votes” Could lead to discussions with Governors before making decision LCR MSCP DISPUTE RESOLUTION PROCESS Determine if dispute exists 10 days Written request to reconsider decision Program Manager works to resolve issues 30 days Steering Committee convenes to resolve issues 10 days Letter to confirm continued dispute Bureau of Rec. Regional Director renders decision 30 days Appeal to Interior Secretary ? days Gerald Cormick: June 29, 2011

  16. Key Elements • Disagreement requires effort • Opportunity for informal dispute resolution • Clear time lines • Need to formally and institutionally define issues • The “buck stops” with the Secretary Gerald Cormick: June 29, 2011

  17. Rocky Reach Implementation Structure Executive (Dispute Resolution) Committee • Senior representatives with authority to assign resources • Operate by consensus Policy Committee • Senior executives of parties to agreement Fish Forum Wildlife Forum Recreation Forum (Tribal) Cultural Forum • 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 Gerald Cormick: June 29, 2011

  18. Key Elements • Key policy makers are kept involved • Defined level of authority for committee membership • All bodies operate by consensus • Process provisions specifically designed to meet the needs of the individual forums • Carefully defined time constraints for annual decision making Gerald Cormick: June 29, 2011

  19. Forum member provides written notice of disagreement on organization’s letterhead. Formal and informal meetings and discussions Policy Committee may resolve dispute, refer it back to the forum with recommendations or call for other dispute settlement process Executive Committee may resolve dispute, refer it back to the forum with recommendations or call for other dispute settlement process Rocky Reach Dispute Resolution Process Forum Chair declares dispute Program Manager works to resolve issues 21 days* 30 days Policy Committee convenes to resolve issues Policy Committee prepares revised statement of issues Executive Committee convenes to resolve issues 30 days Any party may withdraw From agreement *For time sensitive issues there is an expedited process Gerald Cormick: June 29, 2011

  20. Key Elements • Requires formal, organizational decision to create a dispute • Opportunity for informal dispute resolution • Focus on policy via early involvement with Policy Committee • Encourages use of variety of dispute resolution tools • Escalation to senior executives and unattractive option Gerald Cormick: June 29, 2011

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