Using Consensus-Building and Collaboration in the Context of

Using Consensus-Building and Collaboration in the Context of FACA David Emmerson - DOI CADR Deborah Dalton – EPA CPRC

Introduction ¡ Office of Collaborative Action and Dispute Resolution l ¡ DE Upstream/Downstream EPA Conflict Prevention and Resolution Center

What is Consensus? ¡ ¡ Distinguish From Majority Vote A Package of items Everyone can Live with DD

What is Collaboration? Collaborative Behavior ¡ Collaborative Problem-Solving ¡ “Shared Decision-Making” ¡ “Little d” decisions---Agency still has ultimate authority. ¡ DD

Federal Government is Increasingly Endorsing Collaboration ¡ ¡ ¡ DE 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

Benefits of Consensus. Building/Collaborative Problem-Solving ¡ ¡ ¡ ¡ DE 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.

FACA Committees--Good Candidates for Consensus Decision-Making ¡ FACA Requirements Overlap With Best Practices: l l Balanced Membership/Identify All interests Stated Purpose and Need/Assess Conflict Public Meetings/Transparency Advance Notice of Meetings/Planning, Structure, Minutes, Record-Keeping DD

Use of Neutral ¡ ¡ ¡ DD 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

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 DD

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 Group ¡ DD

Where to Get a Neutral ¡ In House l ¡ Private Practice l l ¡ Concerns: Trust of Parties, Experience, Skills, Time Costs Contracting issues Other Federal agencies DE

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? l (Maintaining Neutrality, trust of parties, etc. ) DD

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 DD

FACA Committees That Have Used Consensus-Building ¡ NPS Overflights ¡ RAC Committees ¡ Negotiated Rulemaking Committees DE

NPS Overflights ¡ ¡ FAA/NPS/Tribes/Air Tours/Conservation Groups Sub. Committee 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/REGNEG)

National Seashore Off-Road Driving Negotiated Rulemaking ¡ Cape Cod National Seashore needed to develop new regulations to control access and routes of off-road and beach driving of tourists, nature lovers, residents and fishermen. l l protect the fragile dunes provide critical habitat for nesting/fledging endangered Piping Plover. existing regulations evolved over a period of 35 years long-standing and serious controversy between park and stakeholders.

Need to Collaborate, but No FACA Committee in Sight? ¡ Options: l l l DE Outside Contractor Non-Fed entity Form FACA Committee Form FACA Subcommittee Public Meetings that don’t result in Group Recommendation

Some Tools for Collaborative Problem-solving ¡ ¡ DE Basic Principles for Agency Engagement in Environmental Conflict Resolution and Collaborative Problem-Solving Ground Rules

Basic Principles ¡ ¡ ¡ ¡ DE Informed Commitment Balanced, Voluntary Representation Group Autonomy Informed Process Accountability Openness Timeliness Implementation

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 DD

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: ¡ ¡ DD Time Frame and Schedule Communication with Constituents, the Public and Media Facilitator and Chairperson roles and Responsibilities Funding Issues for Parties and Process

Read More About It! ¡ www. doi. gov/cadr/ ¡ www. epa. gov/adr ¡ www. ecr. gov