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FY 2009 ECR Policy Report to OMB-CEQ (Morris K Udall Foundation)

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1
FY 2009 ECR Policy Report to OMB-CEQ
On November 28, 2005, the Director of the Office of Management and Budget (OMB), and the
Chairman of the President's Council on Environmental Quality (CEQ) issued a policy
memorandum on environmental conflict resolution (ECR).
The memorandum requires annual reporting by departments and agencies to OMB and CEQ on
progress made each year. This joint policy statement directs agencies to increase the effective
use and their institutional capacity for ECR and collaborative problem solving.
ECR is defined in Section 2 of the memorandum as:
“third-party assisted conflict resolution and collaborative problem solving in the context of
environmental, public lands, or natural resources issues or conflicts, including matters
related to energy, transportation, and land use. The term “ECR” encompasses a range of
assisted negotiation processes and applications. These processes directly engage
affected interests and agency decision makers in conflict resolution and collaborative
problem solving. Multi-issue, multi-party environmental disputes or controversies often
take place in high conflict and low trust settings, where the assistance of impartial
facilitators or mediators can be instrumental to reaching agreement and resolution. Such
disputes range broadly from administrative adjudicatory disputes, to civil judicial disputes,
policy/rule disputes, intra- and interagency disputes, as well as disputes with non-federal
persons/entities. ECR processes can be applied during a policy development or planning
process, or in the context of rulemaking, administrative decision making, enforcement, or
litigation and can include conflicts between federal, state, local, tribal, public interest
organizations, citizens groups and business and industry where a federal agency has
ultimate responsibility for decision-making.
While ECR refers specifically to collaborative processes aided by third-party neutrals,
there is a broad array of partnerships, cooperative arrangements, and unassisted
negotiations that federal agencies enter into with non-federal entities to manage and
implement agency programs and activities. The Basic Principles for Agency Engagement
in Environmental Conflict Resolution and Collaborative Problem Solving presented in
Attachment A (of the OMB/CEQ ECR Policy Memo) and this policy apply generally to
ECR and collaborative problem solving. This policy recognizes the importance and value
of the appropriate use of all types of ADR and collaborative problem solving.”
The report format below is provided for the fourth year of reporting in accordance with this
memo for activities in FY 2009.
The report deadline is January 15, 2010.
We understand that collecting this information may be challenging; however, after compiling
previous reports, the departments and agencies can collect this data to the best of their abilities.
The 2009 report, along with previous reports, will establish a useful baseline for your
department or agency, and collect some information that can be aggregated across agencies.
Departments should submit a single report that includes ECR information from the agencies and
other entities within the department. The information in your report will become part of an
analysis of all FY 2009 ECR reports. You may be contacted for the purpose of clarifying
information in your report. For your reference, copies of prior year synthesis reports are
available at www.ecr.gov.
2
Name of Department/Agency responding: _________________________
Name and Title/Position of person responding: _________________________
Division/Office of person responding: _________________________
Contact information (phone/email): _________________________
Date this report is being submitted: _________________________
Department of Defense
James G. Van Ness
General Counsel, Department of Defense
703-693-4841 vannessj@dodgc.osd.mil
3
Section 1: Capacity and Progress
1. Describe steps taken by your department/agency to build programmatic/institutional
capacity for ECR in 2009, including progress made since 2008. If no steps were
taken, please indicate why not.
[Please refer to the mechanisms and strategies presented in Section 5 of the OMB-
CEQ ECR Policy Memo, including but not restricted to any efforts to a) integrate
ECR objectives into agency mission statements, Government Performance and
Results Act goals, and strategic planning; b) assure that your agency’s infrastructure
supports ECR; c) invest in support or programs; and d) focus on accountable
performance and achievement. You are encouraged to attach policy statements,
plans and other relevant documents.]
See attached responses from the Military Departments.
Summary: The Military Departments continue to build programmatic/institutional
capacity for ECR. ECR is integrated into ADR programs in all three Military
Departments and collaborative approaches to environmental problems are
specifically included in strategic planning. The Military Departments enhanced
the training provided to staff and partners to strengthen the institutional
knowledge and information about conflict resolution and public participation.
For Section 2, items i) and o) are the only two that were challenges for all Military
Departments. See attached responses from the Military Departments for the
challenges affecting each Department.
4
Section 2: Challenges
2. Indicate the extent to which each of the items below present challenges or barriers
that your department/agency has encountered in advancing the appropriate and
effective use of ECR.
Extent of challenge/barrier
Major Minor
Not a
challenge/
barrier
Check only one
a) Lack of staff expertise to participate in ECR
b) Lack of staff availability to engage in ECR
c) Lack of party capacity to engage in ECR
d) Limited or no funds for facilitators and mediators
e) Lack of travel costs for your own or other federal agency staff
f) Lack of travel costs for non-federal parties
g) Reluctance of federal decision makers to support or participate
h) Reluctance of other federal agencies to participate
i) Reluctance of other non-federal parties to participate
j) Contracting barriers/inefficiencies
k) Lack of resources for staff capacity building
l) Lack of personnel incentives
m) Lack of budget incentives
n) Lack of access to qualified mediators and facilitators
o) Perception of time and resource intensive nature of ECR
p) Uncertainty about whether to engage in ECR
q) Uncertainty about the net benefits of ECR
r) Other(s) (please specify): ______________________________
s) No barriers (please explain): ____________________________
✔
✔
✔
5
Section 3: ECR Use
3. Describe the level of ECR use within your department/agency in FY 2009 by completing the table below. [Please refer to
the definition of ECR from the OMB-CEQ memo as presented on page one of this template. An ECR “case or project” is an
instance of neutral third party involvement to assist parties in reaching agreement or resolving a dispute for a particular matter. In
order not to double count processes, please select one category per case for decision making forums and for ECR applications.]
Cases or
projects in
progress
1
Completed
Cases or
projects
2
Total
FY 2009
ECR Cases
3
Decision making forum that was addressing
the issues when ECR was initiated:
Of the total FY 2009 ECR
cases indicate how many
your agency/department
Federal
agency
decision
Administrative
proceedings
/appeals
Judicial
proceedings
Other (specify)
Sponsored
4
Participated
in but did not
sponsor
5
Context for ECR Applications:
Policy development
_____ _____ _____ _____ _____ _____ _____ _____ _____
Planning
_____ _____ _____ _____ _____ _____ _____ _____ _____
Siting and construction
_____ _____ _____ _____ _____ _____ _____ _____ _____
Rulemaking
_____ _____ _____ _____ _____ _____ _____ _____ _____
License and permit issuance
_____ _____ _____ _____ _____ _____ _____ _____ _____
Compliance and enforcement action
_____ _____ _____ _____ _____ _____ _____ _____ _____
Implementation/monitoring agreements
_____ _____ _____ _____ _____ _____ _____ _____ _____
Other (specify): __________________
_____ _____ _____ _____ _____ _____ _____ _____ _____
TOTAL
_____
_____
_____
_____
_____
_____
_____
_____
_____
(the sum should equal
Total FY 2009 ECR Cases)
(the sum of the Decision Making Forums
should equal Total FY 2009 ECR Cases)
(the sum should equal
Total FY 2009 ECR Cases)
1
A “case in progress” is an ECR case in which neutral third party involvement began prior to or during FY 2009 and did not end during FY 2009.
2
A “completed case” means that neutral third party involvement in a particular matter ended during FY 2009. The end of neutral third party involvement does not necessarily mean
that the parties have concluded their collaboration/negotiation/dispute resolution process, that all issues are resolved, or that agreement has been reached.
3
“Cases in progress” and “completed cases” add up to “Total FY2009 ECR Cases”.
4
Sponsored - to be a sponsor of an ECR case means that an agency is contributing financial or in-kind resources (e.g., a staff mediator's time) to provide the neutral third
party's services for that case. More than one sponsor is possible for a given ECR case.
5
Participated, but did not sponsor - an agency did not provide resources for the neutral third party's services for a given ECR case, but was either a party to the case or
participated in some other significant way (e.g., as a technical expert advising the parties).
0
14
4
18
16
1
1
17
1
2
1
3
3
1
2
0
1
1
2
2
2
4
4
2
1
2
1
50
1
51
3
1
48
see DON reponse
2
2
80
14
94
28
2
16
48
25
21
13
3
2
14
3
13
16
6
4. Is your department/agency using ECR in any of the substantive priority areas you
listed in your prior year ECR Reports? Indicate if use has increased in these areas
since they were first identified in your ECR report. Please also list any additional
priority areas identified by your department/agency during FY 2009, and indicate if
ECR is being used in any of these areas. Note: An overview of substantive
program areas identified by departments/agencies in FY 2008 can be found in the
FY 2008 synthesis report.
List of priority areas identified in your
department/agency prior year ECR Reports
Check if
using ECR
Check if use
has increased in
these areas
List of additional priority areas identified by
your department/agency in FY 2009
Check if
using ECR
Please use an additional sheet if needed.
See attached responses.
7
5. It is important to develop ways to demonstrate that ECR is effective and in order
for ECR to propagate through the government, we need to be able to point to
concrete benefits; consequently, we ask what other methods and measures are
you developing in your department/agency to track the use and outcomes
(performance and cost savings) of ECR as directed in Section 4 (b) of the ECR
memo, which states: Given possible savings in improved outcomes and reduced
costs of administrative appeals and litigation, agency leadership should recognize
and support needed upfront investments in collaborative processes and conflict
resolution and demonstrate those savings and in performance and accountability
measures to maintain a budget neutral environment and Section 4 (g) which
states: Federal agencies should report at least every year to the Director of OMB
and the Chairman of CEQ on their progress in the use of ECR and other
collaborative problem solving approaches and on their progress in tracking cost
savings and performance outcomes. Agencies are encouraged to work toward
systematic collection of relevant information that can be useful in on-going
information exchange across departments? [You are encouraged to attach
examples or additional data]
See attached responses from the Military Departments.
Summary: The leadership of all Military Departments acknowledge the
benefits and cost savings of ECR. Some of the Districts within the Corps of
Engineers have qualitative and quantitative measures in place.
8
6. Describe other significant efforts your agency has taken in FY 2009 to anticipate, prevent,
better manage, or resolve environmental issues and conflicts that do not fit within the Policy
Memo’s definition of ECR as presented on the first page of this template.
See attached responses from the Military Departments and ODUSD
(Installations and Environment).
Summary: All Respondents describe significant efforts to effectively anticipate
and handle environmental issues and conflicts. Efforts range from
communication and training, to Restoration Advisory Board meetings, to
active engagement with the public and environmental stakeholders on an
on-going basis, and the use of other collaborative tools.
9
Section 4: Demonstration of ECR Use and Value
7 Briefly describe your departments’/agency’s most notable achievements or advances in
using ECR in this past year.
See attached responses from the Military Departments.
Summary: The Military Departments describe their most notable
achievements ranging from training and outreach to facilitated partnering to
serving as a third party neutral.
10
8. ECR Case Example
a. Using the template below, provide a description of an ECR case (preferably completed
in FY 2009). Please limit the length to no more than 2 pages.
Name/Identification of Problem/Conflict
Overview of problem/conflict and timeline, including reference to the nature and timing of the third-
party assistance
Summary of how the problem or conflict was addressed using ECR, including details of how the
principles for engagement in ECR were used (See Appendix A of the Policy Memo, attached)
Identify the key beneficial outcomes of this case, including references to likely alternative decision
making forums and how the outcomes differed as a result of ECR
Reflections on the lessons learned from the use of ECR
See attached responses from the Military Departments and ODUSD (Installations and
Environment).
Summary: The respondents each describe at least one ECR case, including outcomes
and lessons learned.
11
b. Section I of the ECR Policy identifies key governance challenges faced by
departments/agencies while working to accomplish national environmental protection
and management goals. Consider your departments’/agency’s ECR case, and
indicate if it represents an example of where ECR was or is being used to avoid or
minimize the occurrence of the following:
Check all
that apply
Check if
Not
Applicable
Don’t
Know
Protracted and costly environmental litigation;
Unnecessarily lengthy project and resource planning
processes;
Costly delays in implementing needed environmental
protection measures;
Foregone public and private investments when
decisions are not timely or are appealed;
Lower quality outcomes and lost opportunities when
environmental plans and decisions are not informed
by all available information and perspectives; and
Deep-seated antagonism and hostility repeatedly
reinforced between stakeholders by unattended
conflicts.
9. Please comment on any difficulties you encountered in collecting these data and if
and how you overcame them. Please provide suggestions for improving these
questions in the future.
Please attach any additional information as warranted.
Report due January 15, 2010.
Submit report electronically to: ECRReports@omb.eop.gov
See attached responses from the Military Departments.
Additionally: The Department of Defense again requests that the request for survey
responses be sent to the DoD General Counsel's Office, c/o Jim Van Ness, for distribution
throughout the Department. The Department also renews its suggestion for a simplified
survey format for regulated agencies whose mission focus is not licensing, permitting or
environmental enforcement.
12
Attached A. Basic Principles for Agency Engagement in Environmental Conflict Resolution
and Collaborative Problem Solving
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