1. Gerald Cormick: June 29, 2011 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

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

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

4. Gerald Cormick: June 29, 2011 4 The Four Cornerstones of Sustainable Agreements 1. Adaptive Management 2. A test drive 3. Purpose-built implementation structure 4. Dispute management system

5. 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.

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

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

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

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

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

11. Gerald Cormick: June 29, 2011 11

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

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

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

15. Gerald Cormick: June 29, 2011 15 LCR MSCP DISPUTE RESOLUTION PROCESS One of states or aggregate of six votes in dissent One of states or aggregate of six votes in dissent Informal meetings and discussions Informal meetings and discussions Confirm resolution via PM or make new decision or direct process for further resolution efforts Confirm resolution via PM or make new decision or direct process for further resolution efforts Letter to identify issues, relief sought, supporting documents Letter to identify issues, relief sought, supporting documents Regional Director uses good offices Regional Director uses good offices Appeal requires state or 15 votes Could lead to discussions with Governors before making decision Appeal requires state or 15 votes Could lead to discussions with Governors before 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

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

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

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

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

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