**U.S. Department of Transportation**

######### 

######### 

######### 

######### [Collaborative Problem Solving:]{.smallcaps}

**[Better and Streamlined Outcomes for All]{.smallcaps}**

**Guidance on Managing Conflict and Resolving Disputes**

**between State and Federal Agencies**

**During the Transportation Project Development**

**and Environmental Review Process**

*Prepared by*

Federal Highway Administration

Office of NEPA Facilitation

Washington, DC

*In Collaboration with*

U.S. Institute for Environmental Conflict Resolution

Tucson, AZ

### 2002

### Table of Contents

**Page**

Overview 1

1\. Introduction 3

1.1 Environmental Streamlining 4

1.2 National Dispute Resolution System 6

2\. Purpose and Applicability of the Guidance 7

2.1 Applicability 7

2.2 Purpose 7

2.3 Guidance, Not Prescription 7

2.4 Guiding Principles 8

3\. Streamlining for Effective Decision Making and Conflict Management

> Through Early Involvement and Coordination 9

3.1 Expectations 9

3.2 NEPA as a Decision Making Tool 10

3.3 Interagency Goals and Commitments to Advance the Principles

> of Streamlining 11

3.4 Regional and State Strategies 11

-   Process Strategies 11

-   Program Strategies 11

-   Streamlining Project Agreements 12

3.5 Benefits of Early Involvement and Coordination of Reviews 13

3.6 Making it Happen 13

-   Role of the Lead Agency 13

-   Role of Cooperating Agencies 14

4\. Disputes that Arise During NEPA Reviews of Transportation Projects
15

4.1 Issues that Can Lead to Disputes in the NEPA Process 15

-   Purpose and Need 15

-   Scoping 16

-   Alternatives Analysis 16

-   Identification of Selected Alternative through the Final

> Decision Document 16

4.2 The Nature of these Disputes 17

-   Disputes over Interpretations of
    Terms.........................................17

-   Disputes over
    Information........................................................17

-   Disputes Associated with Insufficient
    Resources...........................\...18

-   Disputes Caused by Failure to Deliver or Fulfill a
    Commitment.........\...18

-   Fundamental Disagreements Based on Missions and
    Mandates............19

-   Other Types of
    Disagreements...................................................19

> **Table of Contents (continued)**

5.  Approaches to Managing Conflict and Resolving Disputes at the

> Project Level 20

1.  The Nature of
    Conflict..............................................................
    20

2.  Dispute Resolution Framework 20

5.3 Unassisted Problem Solving 21

-   Develop Timelines for Streamlined Environmental Reviews .... ..23

-   Establish Guiding Principles 24

-   Define Meeting Protocols 24

-   Define Ground Rules for Problem Solving 25

-   Define Procedures for Addressing Impasses and Obtaining Assistance
    25

5.4 Assisted Problem Solving 26

-   Define Procedures for Obtaining Assistance 27

5.5 Upward Referral 29

-   Define Procedures for Upward Referral of Disputes 29

-   Establishing Criteria for Upward Referral 29

-   Identifying Organizational Levels for Upward Referral 30

-   Establishing Operating Rules and Time Frames 30

-   Preparing Higher-Level Decision Makers 30

-   Recognizing Formal Processes for the Highest Level Upward Referral
    ...30

5.6 Training in Problem Solving and Dispute Resolution
..........................33

Figure 1. Dispute Resolution Framework
...............................................21

Figure 2. Project-Level Conflict Management and Dispute

Resolution
Checklist.........................................................\...28

Figure 3. Effective Agency Dispute Resolution-Recommended Steps
............32

Appendix A - U.S. Institute for Environmental Conflict Resolution

Appendix B - Guidance Development and Review Process

Appendix C - Results of Agency Stakeholder Interviews

Appendix D -- Environmental Streamlining National MOU

Appendix E --Example Guiding Principles for Problem Solving and

Dispute Resolution

Appendix F - Example Discussion Ground Rules

Appendix G -Maryland Conflict Resolution Hierarchy

Appendix H -Example Executive Panel Structure for Upward Referral of
Disputes

Appendix I - Joint Briefing Paper Template

Appendix J­­­­ - Bibliography of Conflict Management and Dispute Resolution
Literature

Appendix K­­­­ -Federal Agency Roles and Responsibilities Under NEPA and

Environmental Streamlining

###  

### Overview

This guidance presents strategies for managing conflict and identifying
issues that may arise during the transportation project development and
environmental process reviews under the National Environmental Policy
Act (NEPA) and related laws. These strategies should help Federal and
state transportation and resource agencies to implement a coordinated
environmental review process that streamlines unnecessary delays for
highway and transit project construction. This guidance offers options
for problem solving and is not an absolute prescription.

The following overarching topics are discussed in this document:

-   **Environmental Streamlining:** In keeping with the emphasis on
    early and continuing involvement of all agencies in project planning
    and environmental review activities, a discussion on conflict
    management as a way to streamline project implementation while
    advancing effective and environmentally sound transportation
    decisions is presented.

-   **Broad environmental streamlining strategies for engaging the
    relevant agencies** **to identify problems through early
    coordination:** Employing these strategies early in the project
    development process establishes an effective link to transportation
    planning. Key strategies include developing agreements that promote
    interest based problem solving, such as:

    -   Interagency memoranda of understanding at the regional and state
        levels,

    -   Programmatic agreements that simplify operating procedures for
        specified categories of projects including delegation of
        authority to transportation agencies to conduct environmental
        reviews for categories of projects, and

    -   Environmental streamlining agreements for expedited project
        reviews.

> These strategies should help to reduce the level of conflict and
> better manage disputes as they arise.

-   **Traditional dispute resolution approaches successfully applied to
    solving issues that may surface during the NEPA process:** These are
    illustrated in a side-by-side layout of potential disputes and
    related strategies for minimizing or addressing conflicts.

-   **Examples of prototypical procedural alternate dispute resolution
    frameworks for managing project-level conflict are provided:** These
    examples may be used to guide a structured review process in a way
    that can help keep everyone on track while addressing complex or
    controversial projects, or where a history of contention among the
    relevant agencies exists. Some may find this structured framework an
    especially useful way to foster constructive consultation and
    collaborative decision-making. The following elements are included:

    -   Project time periods and guiding principles,

    -   Meeting protocols and ground rules,

    -   Dispute resolution procedures,

    -   Procedures for upward referral of disputes, and

    -   Procedures for obtaining assistance.

        -   **The appendices** include other useful information that can
            be used in conjunction with the guidance and illustrate how
            some of these strategies were applied in specific
            situations.

This guidance is one element of FHWA's National Dispute Resolution
System. The other elements are specific elevation procedures to the
USDOT Secretary, the roster of qualified neutral facilitators, and
training in the application and use of alternative dispute resolution
during project development. A further description of FHWA's four-part
system for dispute resolution is also presented.

**1. Introduction**

The National Environmental Policy Act of 1969 (NEPA) created a
deliberative process for effective environmental decision-making. NEPA
requires appropriate consideration of impacts of Federal actions to the
human and natural environments and to cultural/historical resources.
When environmental considerations are introduced during transportation
planning and refined during project reviews, more effective and
environmentally sound decisions can be made. The focus of the U.S.
Department of Transportation's (USDOT) environmental streamlining effort
as directed by TEA-21 includes: improving the transportation process by
reducing project delays and improving the integration of project
development and NEPA, while protecting and enhancing the environment.

Strategies discussed in this document draw upon conflict management and
alternative dispute resolution as a way to help all practitioners
involved in the environmental review or permitting of transportation
projects go beyond agreeing to disagree on controversial issues that
arise during the environmental review process or throughout project
development. In doing so, the conflict is assessed and resolved as it
arises, not deferred to the final point of decision, only to then be
revisited. The early assessment of resource issues associated with the
transportation project development can help to identify a reasonable
range of alternatives for a specific project or lead to the development
of flexible mitigation strategies. This streamlines the NEPA process.

*What does "managing conflict" involve?*

> NEPA is a deliberative process. It intends for impacts to the natural
> and human environment to be viewed and assessed through a
> multi-disciplinary lens and with full public disclosure. Competing
> interests (conservation vs. development), different needs (mobility
> and air quality) and a range of influences (political, statutory,
> philosophical) color the landscape in which the transportation project
> planning and development is carried out. So, invariably competing
> priorities of need, resource impacts, mitigation, and desired outcomes
> will come into play. Invariably disagreements that turn into
> full-blown conflicts, the need for additional information, or issue
> clarification are part of the process. Conflict left to its own
> devices will not go away. It has to be addressed, managed, disputed,
> and ultimately resolved. Employing interest-based negotiation sooner,
> rather than later, in the process can wind up saving time and money.
> Managing conflict, using alternative dispute resolution skills, or
> drawing upon third party neutrals to keep the process on track helps
> to reduce unnecessary delays and arrive at better transportation
> decisions. Effective conflict management requires:

-   Understanding the nature of conflict;

-   Knowing when conflict has become a problem in the project
    development process;

-   Recognizing when conflict is interfering with progress toward an
    end;

-   Knowing when to continue working on problem solving with the party
    involved and when to pursue other avenues, such as seeking
    assistance or elevating a dispute to a higher authority;

-   Understanding how to establish an efficient mechanism for making
    these decisions; and

-   Improving the knowledge and skills of those involved in project
    development, negotiation, and problem solving.

Hundreds of decisions are made in the context of each transportation
project, including the ultimate one---whether to proceed and how. An
effective project conflict management system can ensure that these
decisions are timely, efficient, and arrived at by informed decision
makers.

*Managing conflict does [not]{.underline} necessarily mean that parties
have to agree.*

Where agency missions diverge or agency representatives have
fundamentally different interpretations of legal mandates, agreement may
be elusive. However, disagreement does not have to produce an impasse
and result in decision paralysis for the project.

*Methodology*

The development of this guidance is a result of the USDOT's
environmental streamlining efforts, and is a critical component of the
Agency's National Dispute Resolution System (see section 1.2 of this
document). This guidance provides advice and recommendations; [it is not
a mandated design]{.underline}. The U.S. Institute for Environmental
Conflict Resolution (USIECR) assisted the Federal Highway Administration
(FHWA) with the preparation of this guidance.

The USIECR is a Federal agency charged with advancing the use of
alternative dispute resolution methods for those involving public lands,
natural resources and the environment, where a Federal interest is
involved. Appendix A contains a description of the USIECR and its
programs.

The list of USIECR's team of experts used to assist FHWA in the original
design of this guidance is found in Appendix B.

One of the initial activities associated with the development of this
guidance was a telephone survey of Federal and state agency
representatives involved in the development and/or review of
transportation projects. The participants were asked to identify the
following:

-   How and why disputes arose,

-   Strategies used for resolving disputes,

-   Impediments to better conflict management,

-   Experience with the use of neutral third parties to aid dispute
    resolution, and

-   Types of training acquired to enhance negotiation skills and to
    build relationships with other agencies. The survey results are
    summarized in Appendix C.

As a result, the guidance provides procedural clarifications and
information on the use of simple diagnostic tools to improve the
management of interagency conflict and a menu of dispute resolution
methods, protocols and structures for agencies to consider.

**1.1 Environmental Streamlining**

Section 1309 of the Transportation Equity Act for the 21^st^ Century
(TEA-21) calls for a coordinated environmental review process to
expedite Federal highway and transit projects without compromising
environmental protection. Accomplishing this requires better and earlier
coordination among Federal, state, tribal and local agencies. To avoid
delays and costly duplication of effort in reviewing and approving
transportation projects while protecting and enhancing the environment,
agencies should:

-   Establish an integrated review and permitting process that
    identifies key decision points and potential conflicts as early as
    possible;

-   Integrate the NEPA process and other environmental considerations as
    early as possible in the scoping and if feasible, into the
    transportation planning processes;

-   Encourage early and meaningful participation by all Federal, state,
    tribal and local agencies that must review a transportation
    construction project or issue a permit, license, approval, or
    opinion relating to the project; and

-   Establish a dispute resolution mechanism to address unresolved
    issues.

Environmental Streamlining encompasses the spectrum of planning,
development, and review activities. Early coordination and adequate
resources help to reduce the number and intensity of disputes that occur
at the planning and project review stages. Nevertheless, disagreements
among agencies are likely to emerge, and some may develop into
full-blown disputes.

The National Memorandum of Understanding (MOU) for Environmental
Streamlining (Appendix D) was written and signed to implement Section
1309 of the TEA-21. The following Federal resource agencies are
signatories to the MOU: U.S. Fish and Wildlife Service, U.S. Department
of Agriculture (USDA), U.S. Department of Commerce, U.S. Environmental
Protection Agency (EPA), U.S. Army Corps of Engineers (USACE), and the
Advisory Council on Historic Preservation. Under the MOU, the agencies
agree to work cooperatively and to conduct concurrent project reviews
under NEPA and other legal authorities for project permits, licenses,
and approvals. As the Federal Interagency Workgroup, representatives of
these agencies meet regularly with the FHWA and FTA.

Being charged with lead on environmental streamlining, FHWA in
coordination with the Federal Interagency Workgroup developed the
Environmental Streamlining National Action Plan[^1]. The Action Plan
identifies how the agencies will coordinate their streamlining
commitments and manage conflict constructively. The Plan contains the
following five elements:

-   Program efficiency (early interagency involvement and concurrent
    reviews)

-   Mitigation strategies (avoidance of impacts, innovative mitigation
    initiatives, and programmatic reviews)

-   Resource management (allocation of resources to support early
    involvement and training)

-   Continuous improvement (measuring and monitoring progress and
    accountability)

-   Dispute resolution (keeping projects on schedule through conflict
    avoidance and resolution)

**Dispute Resolution and Streamlining**

Section 1309(c) of TEA-21 specifically addresses dispute resolution.
Under it,, the Secretary of Transportation shall after notice and
consultation with an affected agency, close the record on matters before
the Secretary if a Federal agency, subject to a time period for its
environmental review or analysis, has not been met. If after timely
compliance with the agreed upon time periods, an environmental issue for
which an affected Federal agency has jurisdiction has not been resolved,
the Secretary and the head of the Federal agency shall resolve the issue
in 30 days after the date of the finding by the Secretary.

This guidance is also designed to encourage collaborate decision making
and facilitate the resolution of interagency disputes at lower levels of
decision-making, thus avoiding the need for elevation to the Secretary.

**1.2 National Dispute Resolution System**

The USDOT is committed to the active management of conflicts that emerge
during development of transportation projects. Conflict is to be
expected given the dual goals of environmental streamlining i.e.,
developing and implementing coordinated and timely reviews for the
advancement of highway and transit projects, while fully meeting
environmental responsibilities.

Conflict that forces agencies to recognize differing views and the
struggle to accommodate diverse interests can produce positive results.
However, conflict must be managed carefully to avoid its deleterious
effects, such as damage to working relationships and lack of progress in
reaching needed decisions.

The USDOT's National Dispute Resolution system for addressing
disagreements among Federal and state agencies within the context of
environmental streamlining, includes the following:

-   Guidance on how to manage conflict and resolve disputes, i.e., the
    focus of this document;

-   National Procedures for elevating disputes involving Federal and
    state agencies to the Secretary of the USDOT \[per Section 1309(c)
    of the TEA-21\],

-   Access to qualified third-party neutrals who can provide
    professional assistance in managing conflict and resolving disputes
    (i.e., the Transportation Roster), and

-   Training workshops to help Federal and state agency staff become
    familiar with the dispute resolution guidance and to develop more
    effective negotiation and problem solving skills.

Chapters 3, 4, and 5 provide strategies for achieving collaborative
decision-making through early coordination and involvement. Conflict
management strategies, if applied as part of environmental streamlining,
can be helpful in yielding better outcomes for all.

**2. Purpose and Applicability of the Guidance**

**2.1 Applicability**

In keeping with the focus of Section 1309 of TEA-21, this guidance is
designed to assist Federal and state agencies (such as departments or
offices of transportation, environmental protection, fish and game, and
historic preservation[^2]) as they interact at the transportation
planning stage and during the review of individual transportation
projects. Federal and state land management agencies may also be
involved where the transportation project affects public lands. Most of
the concepts presented in this guidance also have applicability to
effective collaboration with local governments and tribes.

Many disputes arising in the transportation development process involve
nongovernmental groups and the public at large. Public involvement and
input is an integral component of the transportation planning project
development process. These requirements are delineated in FHWA's
statewide and metropolitan planning regulations (23 CFR 450) and FHWA's
NEPA regulations (23 CFR 771). Problems that are identified by the
public, related project controversies and the manner in which they are
resolved can be found in those references. However, this document
focuses exclusively on managing [interagency]{.underline} relationships
and conflicts . Keep in mind that these Federal agency reviews and
public involvement occurs simultaneously and public input is continually
integrated into the planning and environmental review processes**.**

**2.2 Purpose**

Given the complexity of decision-making and the diversity of competing
needs to be addressed, conflict is usually a part of the transportation
development business. Various agencies operate under different missions
and mandates, each of which must be accommodated. Advanced planning,
coordinated scheduling, sufficient time for reviews and adequate
resources will help reduce the numbers and intensity of disputes that
occur both at the planning stage and at the project review level. This
guidance focuses on helping agencies identify when and how they are
stuck, and most importantly, what to do next. Moving beyond an impasse
is essential to getting back on schedule. Understanding how to avoid
getting stuck again will help smooth the project review process in the
long run.

**2.3 Guidance, Not Prescription**

In the following chapters, common aspects of conflicts that occur in the
transportation planning and project review processes and suggestions for
how to proceed are discussed. Examples of successful approaches to
dispute resolution implemented in selected states are also presented.
Flexibility and adaptation as well as early coordination and
communication among involved parties are emphasized in order to
accommodate local conditions, operating relationships, existing
agreements, and political considerations.

**2.4 Guiding Principles**

Some guiding principles to consider:

-   Engage all relevant agency representatives early, actively, and
    continually in collaborative problem solving during transportation
    planning and project review processes.

-   Improve negotiation and problem solving skills of agency staff
    through training and coaching.

-   Attempt to resolve disagreements at the earliest stage possible and
    at the lowest appropriate organizational level.

-   Seek resolution first by focusing on how to meet agency interests
    and needs in the context of existing laws and regulations.

-   Take advantage of experienced facilitators and mediators to assist
    agencies in designing conflict management processes and in resolving
    challenging disputes.

-   Make effective use of higher-level authorities as appropriate for
    negotiating impasses or resolving higher-level issues.

-   Educate each other as to legal authorities of each agency and
    structure collaborative processes to be respectful of those
    authorities.

Knowing when to elevate and recognizing that it is far more expedient to
get issues addressed as soon as possible by those who are in the best
position to solve them is not an indicator of failure. Instead, it is a
hallmark of effective communication and good decision-making.

**3. Collaborative Decision Making and Conflict Management**

**Through Early Involvement and Coordination**

**Overview**

This chapter presents strategies that advance good NEPA management
practices, specifically those facilitating early involvement in
transportation planning and coordinated, concurrent reviews of
individual projects. The strategies include memoranda of understanding
among agencies, delegations of programmatic authority, partnering
initiatives, and other arrangements to promote environmental
streamlining goals.

**3.1 Expectations**

Congress expected that environmental streamlining would lead to better
coordination and predictable project delivery schedules through a
process that is efficient, comprehensive, and streamlined. An efficient
process allows agencies to agree on timeframes for conducting the
required environmental reviews. Conceivably, these reviews would occur
concurrently; the CEQ regulations state that agencies shall do
concurrent reviews to the fullest extent possible***.***

Concurrent reviews would reduce duplication of effort, expedite
agreement on outstanding issues, result in quicker acceptance of
mitigation strategies, and help expedite the issuance of permits. This
approach is ideal in theory. In reality, NEPA practitioners have learned
that the missions of many transportation, environmental review, and
permitting agencies do not intersect clearly. Distinct levels of legal
review dictated by various environmental laws drive the level of
information required, the nature of the documentation, the involvement
of the various state and local resource agencies, and the standards of
judicial review. All of this in addition to constrained resources can
complicate the review process. Moreover, misinterpretation of the
mandates, goals, and responsibilities of the agencies can make
coordination a contentious affair, and can

set the stage for conflict throughout the NEPA process.[^3]

Early coordination is emphasized in the TEA-21 as an essential
ingredient of environmental streamlining. Congress recognized that the
concerns of the involved parties should be identified early in the
process. A lot of time can be spent debating poorly documented decisions
based on incomplete information or inadequate documentation. Similarly,
failure to clarify agency requirements, needs and expectations on a
broader level can exacerbate conflict during specific project
development phases. These project specific conflicts and the issues that
arise during the NEPA process are addressed in Chapter 4.

Congress also recognized the need for additional resources to support
enhanced resource agency engagement in transportation projects, and
deemed efforts to support their involvement eligible for Federal aid
reimbursement. State departments of transportation may chose to fund
positions or activities to be carried out by resource agencies that meet
agreed upon timeframes and streamlining objectives.

**3.2 NEPA as a Decision Making Tool**

NEPA established the national policy for protection of the human
environment and natural environment, and applies to actions that involve
a Federal agency making a decision. All Federal agencies are encouraged
to use NEPA as a procedural framework for addressing compliance with
applicable environmental laws.

A coordinated approach to planning and project development contributes
to more effective and environmentally sound decisions about
transportation investment choices and trade-offs. Title 23 of the U.S.
Code makes clear that transportation planning is a state and locally
driven process. State and local officials are responsible for defining
their transportation investment strategies, planning a transportation
system that best reflects their community needs, and selecting and
setting priorities for transportation projects. Because this is not
defined as a Federal action, transportation plans are not subject to
NEPA.

Experience has shown that greater commitment to preventing adverse
environmental impacts and integrated agency coordination can add
significant value to the transportation decision-making process. By law,
FHWA cannot require NEPA at the planning level. However, the outcomes of
the transportation planning process need to be considered in a manner
that respects state and local decisions and investment choices. The
challenge is in reaching agreement and defining the appropriate levels
and timing of Federal agency involvement in what begins as a Federally
assisted state process and culminates in a Federally directed process --
NEPA.

Some states will choose to accelerate interagency coordination early in
the NEPA process, while others will engage agencies at the
transportation planning stage, emphasizing balancing of transportation
and environmental needs at a broader systems level. Both models will
lead to collaboration and provide an opportunity to resolve whatever
conflict may arise or modify the transportation proposal early in the
process.

Actions that help build interagency relationships and institutionalize
conflict management strategies define expectations and clarify each
party's level of participation and contribution to streamlining. A
number of strategies available to facilitate collaborative
decision-making or conflict management through the use of environmental
streamlining are discussed in the following subsections.

**3.3 Interagency Goals and Commitments to Advance the Principles of
Streamlining**

The National MOU on Environmental Streamlining reflects the intentions
of the Federal resource agencies to achieve the goals of environmental
streamlining---to expedite transportation projects while protecting and
enhancing the environment. The signatories agree to work
collaboratively, coordinate environmental review activities, and to
become involved early in transportation planning activities. The Federal
Interagency Work Group meets regularly in Washington, D.C. to facilitate
the implementation of agency commitments under the MOU and serves as a
conduit for quick agency response on issues that may generate conflict.
Some responses require clarification of agency policy or guidance, or
breaking logjams through specific agency directives.

**3.4 Regional and State Strategies**

Building on the National MOU and Action Plan, Federal agency field
offices have defined approaches to achieve the environmental
streamlining goals. They can be categorized as strategies that address
process, program, or project efficiencies.

# **Process Strategies**

> Several field offices have adopted principle-based agreements,
> patterned after the National MOU, for consistency in meeting the goals
> of reducing delays, enhancing, and protecting the environment*.* The
> regional and state MOUs incorporate distinct regional priorities and
> typically define the ground rules and expectations, and clarify agency
> roles and responsibilities for conducting project reviews. The parties
> can choose to include negotiated timeframes, which is encouraged by
> the FHWA. The MOUs may also include agreements for a transfer of funds
> from transportation to environmental agencies to support specific
> activities.

-   **Program Strategies**

> *-* Agencies often find it appropriate to address factors and actions
> using a programmatic approach. This allows the affected agencies to
> explore and seek resolution of broad issues that benefit a large
> number of actions. If an action has no significant environmental
> impact or is always resolved in the same way, eliminating the need to
> address the same types of issues repeatedly can save time and lead to
> repeatable and predictable outcomes.
>
> \- Programmatic agreements are useful for expeditiously addressing
> transportation system needs that are driven largely by safety and
> maintenance requirements. For many states, these are the bulk of their
> programs and are based on technical highway needs inventories and
> conditions, and performance of the physical structures.
>
> \- Efficient and proficient handling of operational transportation
> improvements should allow necessary resources to be dedicated to
> projects requiring the preparation of environmental impact statements.
> Projects of this nature typically involve the construction of new
> facilities or major capacity expansion projects. These projects
> reflect the long-range transportation plans such as corridor studies,
> feasibility studies, or perhaps as illustrative projects.
>
> \- If a state has a long range plan that is a policy plan rather than
> a facility-specific plan, new facilities are generally discussed in
> terms of a range of transportation system options that consider the
> statewide and metropolitan planning factors listed in TEA-21. These
> projects are more specifically advanced into the transportation
> improvement program -- a listing of projects or project phases to be
> advanced over the next 1-3 years.

-   Transportation planning and air quality conformity requirements
    require regional analysis of the transportation projects anticipated
    to be advanced over the next 20 years. The transportation plan must
    be supported by documentation of financial commitment -- the
    transportation improvement plan (TIP) must specify funding sources.
    Some projects, although still in planning, might be assigned
    dimensions and project descriptions as "placeholders" in order to
    fulfill planning and conformity requirements. While a significant
    amount of analysis and project related data collection through
    feasibility or corridor studies could be amassed in the planning
    phase, NEPA is not applied to these transportation system plans. For
    Federal transportation actions, NEPA is applied to the specific
    projects in the plan/transportation improvement program when the
    project enters the project development phase. From the perspectives
    of many environmental agencies, these statutory underpinnings have
    led to a perceived "procedural " disconnect between transportation
    planning and NEPA. Conversely, transportation agencies become
    frustrated when environmental agencies fail to consider the results
    of the transportation planning process or do not fully appreciate
    the transportation agency's responsibility as the lead agency to
    ensure full compliance with all environmental regulations under the
    "NEPA umbrella " concept.

-   If properly documented, the planning and analysis data that are
    developed could be used to justify and narrow the range of
    reasonable alternatives to be addressed during the NEPA process.

-   Expedited project reviews through programmatic agreements or
    delegations of authority create the opportunity for agencies and
    states to successfully meet their environmental protection missions.
    In addition, the resource agencies have more time to become familiar
    with the transportation planning process and better understand the
    basis for the transportation agency's proposals.

## Streamlining Project Agreements

\- Project agreements define the processes and approaches to be used and
set specified timeframes for project reviews. Project-specific
streamlining or partnering agreements are generally used for large or
complex projects, or those involving a host of complex impacts (e.g.,
significant historic, cultural or community impacts or issues).

\- These projects could lead to prolonged environmental reviews,
disagreements and significant project delays. A number of states are
pursuing streamlining agreements for "pilot " projects to test the
benefits of more structured coordination.

5.  **Benefits of Early Involvement and Coordination of Reviews**

Several states are addressing environmental resource protection issues
at the transportation systems level. For example:

-   Florida has adopted a strategy for incorporating environmental
    factors into its long range planning process.

-   Oregon is defining a level of environmental review to apply during
    planning which allows the regulatory and resource agencies to
    provide input into the purpose and need as projects are identified
    in the planning phase.

-   Indiana is developing an approach for conducting environmental
    assessments during transportation corridor planning studies.

One goal is to develop mitigation strategies that will increase the
likelihood of avoidance, reduce mitigation costs, or establish
mitigation credits off-site. These strategies ensure greater
predictability for carrying out the transportation plan as envisioned at
the state and local levels. Early involvement of environmental agencies
might also encourage the use of natural systems (e.g., river basins, air
sheds, ecosystems) as geographic units for transportation planning.

Several states have also developed frameworks for coordinating
project-specific review processes. These efforts typically encompass
Section 404 permitting and NEPA process requirements. The benefits are
faster, more efficient reviews.

For more information on streamlining initiatives and strategies, refer
to the FHWA Web site (\<www.fhwa.dot.gov/environment/strmlng.htm\>).

5.  **Making It Happen**

-   **Role of the Lead Agency Under NEPA**

As the lead agency for most transportation projects, the FHWA division
office or Federal Transit Authority (FTA) regional office are
responsible for facilitating effective decision making, managing
conflict, and reducing the likelihood of disputes. They should:

\- Convene and chair the initial and subsequent meetings for all the
relevant Federal and state agencies.

\- Support and assist with resource exchange arrangements between state
departments of transportation and resource agencies where the state has
exercised its option to do so.

\- Suggest and arrange for activities that encourage team building, such
as a partnering sessions conducted by a third party.

\- Make available or assist with obtaining interagency training in
problem solving, negotiation, and dispute resolution, as well as in
traditional substantive areas.

-   Model effective collaborative problem-solving behavior in its
    interactions with other agencies by employing interest-based
    negotiations. This implies that agency personnel have the requisite
    communication and problem-solving skills.

-   Develop meeting facilitation skills and be prepared to chair
    interagency discussions (see Section 5.2).

FHWA and FTA must balance their responsibility as a proponent of the
project sponsor, and should:

\- Act impartially as the facilitator of a fair and balanced process,

\- Advocate the decision-making process, and

\- Extend the concept of partnership to all agencies in the process.

-   **Role of Cooperating Agencies**

The role of cooperating agencies is addressed in the CEQ regulations (40
CFR 1501.6) and emphasizes the importance of cooperation early in the
NEPA process. Upon the request of the lead agency, other Federal
agencies, with jurisdiction by law or with special expertise on an
environmental issue involved in the project, have the responsibility to
be cooperating agencies. It is important that this is done as early as
practicable, and includes not just Federal agencies, but also state,
tribal, and local government agencies that are players in the NEPA
decision-making process for that project.

Early in the NEPA process, the lead agency along with all cooperating
agencies are urged to:

-   Set time limits

-   Identify milestones

-   Assign responsibilities for analysis and documentation

-   Specify the scope and detail each agency's contribution

-   Establish appropriate ground-rules.

Cooperating agencies have a major role in ensuring that decisions made
during the project development process are timely and conducted in an
efficient manner. However, reaching agreements on agency roles could
involve contentious deliberations. The decision-making authority of each
agency and the level of consultation required can be the cause of
ongoing disputes.

It is important to keep in mind that the benefits of cooperating agency
participation include:

-   Disclosing relevant information early in the process

-   Applying available technical expertise

-   Avoiding duplication with other Federal, state, tribal, or local
    procedures

-   Establishing a mechanism for fostering inter and intra-governmental
    trust

-   Understanding and appreciating various roles in the NEPA process.

> Additional thoughts on lead and cooperating agencies are available on
> CEQ's NEPA Net website at <http://ceq.eh.doe.gov/nepa/nepanet.htm>

**4. Disputes that Arise during NEPA Reviews of Transportation
Projects**

**4.1 Issues that Can Lead to Disputes during the NEPA Process**

As a project moves from planning through the phases of project
development, conflicts may arise at any phase. Many states have
established particular points of concurrence to be reached between state
transportation agencies and various Federal and state agencies before
moving on to the next phase of the project review process. Each phase
has its set of issues that must be satisfactorily addressed to manage
the potential for disagreements. Broad project development phases under
NEPA, regardless of the action classification, include:

\- Establishing purpose and need,

\- Interagency coordination or scoping[^4],

\- Alternatives analysis, and

> \- Selection of an alternative in the decision document.

Final design and implementation stages can also be problematic; however,
this topic is beyond the scope of this guidance. Success in resolving
disputes up to the Record of Decision, will allow for (but not
guarantee) fewer problems through the project implementation phase.

The following issues typically emerge during key phases of the NEPA
process. Each issue can be the focus of disagreements among agencies.
However, some of the broader issues can be addressed at the planning
level.

## 

## Purpose and Need

Transportation problems are defined and the reasons for addressing them
are proposed in a purpose and need statement. This establishes the basis
for any proposed action to correct the problems and therefore, is
critical to the evaluation of all reasonable alternatives. It is the
responsibility of the transportation agencies to provide a clear and
comprehensive justification of why the action is needed, and re-examine
or update information throughout the project development process.

Key questions that may lead to disputes in this area pertain to:

-   How was the transportation need defined?

-   What are the underlying causes of the need?

> \- How were the traffic demands determined and what analyses were
> used?
>
> \- Does the purpose and need statement exclude any alternatives that
> should be evaluated?

## Scoping

The purpose of scoping activities is to identify issues early in the
NEPA process that will need to be considered throughout project
development. Scoping helps to determine:

> \- Study boundaries,
>
> \- Roles and expectations of agencies,
>
> \- Project schedule and review timeframes,
>
> \- Sensitive environmental factors to be considered for analyses, and
>
> \- Technical studies that may be required, including appropriate
> methodological approaches.

Each of these issues may lead to conflict or disputes and often involve
questions concerning:

-   Appropriate time requirements,

-   Each agency's level of effort and how it will be accomplished,

-   Environmental resources or evaluation of impacts that will be
    important factors in the decision-making,

-   The extent or methodology for data collection or environmental
    analyses, and

-   The appropriate classification level of documentation
    \[Environmental Impact Statement (EIS), Environmental Assessment
    (EA) or Categorical Exclusion (CE)\] for the proposed action.

## Alternatives Analysis 

This analysis presents the rationale for which transportation
alternatives are evaluated to meet the purpose and need established for
the project. It also provides a comparison of environmental impacts
associated with each alternative and other potential mitigation
(avoidance, minimization, compensation). The issues tend to fall under
the following categories:

-   Number and type of alternatives (e.g., What is a reasonable number
    of alternatives? Is there sufficient rationale for elimination of an
    alternative? Are the alternatives consistent with local land-use
    plans? How are indirect effects to be addressed?

-   Data requirements for environmental studies and analysis of effects
    (e.g., How much data is sufficient? What data is credible? What data
    needs to be developed through new studies and what methodology
    should be used? What are the cumulative effects?)

-   Proposed mitigation (e.g., What is the appropriate ratio for
    wetlands replacement? How are potential mitigation strategies
    identified, and at what level of detail? How to best quantify
    impacts and potential mitigation strategies to ensure a balanced
    decision?)

## Identification of Selected Alternative Through the Final Decision Document 

The lead agency makes a final decision on the selection of an
alternative. This decision is based on the transportation purpose and
need, the views and comments of the public, the environmental impacts,
and the input of resource agencies and other regulatory requirements.

Issues may arise over the evaluation of the no-build alternative,
alternatives considered under other legal standards (e.g., Section 4(f)
of USDOT Act, Section 404 of Clean Water Act) or acceptance of the
conceptual mitigation package for the selected alternative.

The goal of the dispute resolution guidance is to provide strategies for
resolving issues, so that the project can progress through the
decision-making phases in a timely manner and toward an appropriate
outcome.

**4.2 The Nature of These Disputes**

Disputes that may arise at various junctures in the NEPA process include
the following.

**Disputes over Interpretations of Terms:**

These involve questions such as: "What is an indirect/cumulative
effect?" "What does 'practicable' mean (in relation to project
alternatives)?" and "What is the 'public interest'?" (e.g., in relation
to the USACE mandate under Section 404 of the Clean Water Act).

Questions that only pertain to the immediate project could be addressed
within the context of the project. If the terms are associated with
multiple projects, the dispute could be addressed by a specially
designated group of representatives from the affected agencies.

However, the examples cited above involve terms found in authorizing
legislation and agency rules, and their interpretation represents agency
policy. Resolution is thus likely to require negotiation by higher-level
decision makers in the relevant agencies.

**Disputes over Information:** These can take the form of insufficient
information, or disagreeing with the data analysis or the methods
employed, or adopting a different interpretation of the analysis.

Most of these disputes involve larger debates about agency jurisdiction
and domains of expertise. Sometimes the agencies cannot agree on who has
primacy for defining natural resource methodologies.

Disagreements between EPA and transportation agencies often involve the
underlying planning assumptions used to arrive at vehicle miles of
travel as inputs into travel demand models or for establishing mobile
source emissions budgets. These disagreements may evolve into disputes
about the interpretation of terms or overlapping legal mandates.

**Disputes Associated with Insufficient Resources***:* Sometimes the
cause of missed deadlines is due to the lack of staff or other agency
resources. It is best to refer these issues to higher levels within the
affected agencies; or they may be resolved through funding agreements
for staff positions. Resource problems are appropriately addressed as
part of an interagency agreement. Nevertheless, resource issues may also
emerge during the project review stage.

**Disputes Caused by Failure to Deliver or Fulfill a Commitment***:*
Unrealized expectations can lead to serious disputes. The inability of
an agency representative to honor a commitment (e.g., "That certainly is
not my understanding of what we agreed") or to deliver the signature of
a higher agency authority on a negotiated agreement, can erode gains
made on the current project, and can have a significant effect on future
negotiations.

If the cause of the problem is a failure to persuade higher authorities
to sign off on a negotiated agreement rather than bad faith bargaining
by the negotiator, the problem could be a lack of understanding of the
issues by the higher-level decision maker. In this case, resubmitting
the agreement with a more complete explanation is appropriate. This
underscores the importance of keeping decision makers informed
throughout the negotiating process.

Unsigned agreements may also indicate the emergence of a substantive
dispute and it may be a candidate for upward referral for negotiation
among the affected agencies.

**Fundamental Disagreements Based on Missions and Mandates***:*
Sometimes agencies differ on the interpretation of their disparate
mandates. These types of disputes often arise over the purpose and need
for the project, the failure of the project sponsor to consider a full
range of alternatives, or the selection of a preferred alternative.

Appealing to the mutual respect for each agency\'s mandate and making
specific reference to commitments made in the National MOU (and perhaps
complementary region- or state-level MOUs) may help move the agencies
toward compromise or creative solutions. However, where project redesign
or mitigation measures are not successful in reaching an accord, upward
referral of the dispute should be considered.

**Other Types of Disagreements***:* Some disputes are due to
personalities, attitudes, or differences in agency cultures. Deeply
embedded behavioral

patterns and attitudes are difficult to change during relatively brief
attempts at dispute resolution within the context of a project review
process, thus leading to impasse.

Agency cultures are also difficult to remold and may require assessment
and intervention by organizational development specialists. Interagency
training sessions where participants become more familiar with the
mission and operating style of their counterparts may prove to be
useful.

**5. Approaches to Managing Conflict and**

**Resolving Disputes at the Project Level**

**5.1 The Nature of Conflict**

Why do people disagree, and why do some disagreements escalate into
full-blown arguments or disputes? Conflict arises when the interests of
two or more parties cannot be simultaneously satisfied, or at least the
parties perceive this to be the case. The separate interests may involve
competition to obtain scarce resources, fundamental differences in
values, identification with adversarial groups, power imbalance in the
parties' relationship, a difference in style or culture, or a simple
dislike or distrust of each other. Nevertheless, conflict can be
positive.

-   Addressing conflict in a forthright manner can produce positive
    results.

-   Conflict forces the recognition of differing perspectives, and
    provides opportunities to arrive at new understandings.

-   Struggling to accommodate diverse interests can be rewarding.

-   Addressing conflict also provides the option of responding in either
    a competitive or a cooperative fashion. If a competitive posture is
    chosen, damaged working relationships and a lack of progress in
    achieving goals is often the result.

Understanding the nature of conflict and how to manage it constructively
are keys to achieving desired outcomes effectively and efficiently. In
the case of transportation projects, the dual objectives are to meet
transportation needs and protect the environment, all within a specified
time frame. TEA-21, NEPA, and the various related environmental laws and
regulations comprise the context within which conflicts among
interdependent agencies must be managed.

The following sections describe each element of the framework. The
discussions assume that general agreements and operational
understandings among the participating agencies have not necessarily
been established at the transportation planning stage.

#  **Dispute Resolution Framework**

# 

The Dispute Resolution framework as illustrated in Figure 1, can serve
as an option for a more formal, structured dispute resolution model at
the project level. It encompasses collaborative problem solving, with
various supporting elements, and presents a general process for dispute
resolution starting from the lowest organizational level, with possible
elevation to higher levels per existing laws and regulations of the
organization.

The three elements of the support system are presented as: agency
dispute resolution specialists; third-party process neutrals (mediators
and facilitators) on a transportation roster; and trainers for help in
developing or improving negotiation, problem solving, and dispute
resolution skills. These support elements can be used at any point in
the problem solving and dispute resolution processes.

# 

# **Figure 1. Dispute Resolution Framework**

#  **[Support Elements]{.underline}**

**5.3 Unassisted Problem Solving**

Face-to-face dialogue is the medium of problem solving and dispute
resolution. Through direct discussion, participants can share ideas,
troubleshoot proposals, and negotiate agreements.

Establishing a process up-front for collaborative problem solving and
dispute resolution can help reduce conflict later on, or at least smooth
the process for managing subsequent conflict.

Rules to guide meetings are important. Timelines should be established
and explicit guidelines for determining progress developed. Agreements
reached along the way need to be documented and signed. This will help
guide the process and keep it on track.

Discussions can begin upon establishing the timeline and strategy.
Simple rules of thumb will help to make the discussions productive and
efficient.

-   Strict adherence to the process agreements is useful, especially in
    the beginning, to set the stage for timely, efficient discussions.

-   Meetings should be held as scheduled and start on time.

-   Substitute representatives should participate when designated
    representatives are not available.

-   Good faith means honoring commitments to participate consistently
    and to provide information and decisions when promised.

-   All participants in the process should be kept informed. Sidebar
    conversations between individuals should be shared with the group at
    appropriate times. Avoid surprises.

-   Success in negotiation and problem solving is also dependent on the
    knowledge and skill of the participants. Understanding the nature of
    the issues (technical, legal, administrative, and perhaps political
    aspects) is essential. In addition, process skills and personal
    attitudes are key.

-   Participants should engage in problem solving with openness and a
    desire to achieve mutually agreeable results. They should be candid
    about differences that exist and be respectful of other
    perspectives.

-   In the case of transportation projects, multiple objectives must be
    achieved, such as improvement in human safety and mobility,
    conservation of natural resources, protection of wildlife and
    preservation of historical structures. Agency representatives need
    to be aware that these objectives must be achieved within the
    context of authorizing laws and regulations. Blending the
    achievement of these objectives becomes the challenge.

Early stages of problem solving should focus on:

-   Identifying the interests that underline the stated positions of the
    participants. This is sometimes referred to as "interest-based"
    negotiation. Often the "position" is stated in a manner that
    suggests no compromise is possible. Through careful listening and
    probing, positional language can reveal central interests or
    objectives. In many cases the interests of several parties are held
    in common.

-   How participants can best achieve these mutual interests. Developing
    mitigation plans or redesigning the project, perhaps by altering the
    route or substituting one mode for another, is the art of
    identifying and satisfying multiple interests, at least some of
    which may be held in common.

Artful communication is a key to managing conflict and involves:

-   The tone and speed of oral communication

-   The use of body language which results in messages that differ from
    the meaning of the words.

-   Communication behavior often reflects and sometimes creates
    conflict, but it is also the vehicle for constructive conflict
    management.

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-   **Develop Timelines for Streamlined Environmental Reviews**

Sections 1309(a) and (b) of the TEA-21 state that all agencies involved
in streamlining environmental reviews of transportation projects should
cooperatively establish time periods for concurrent reviews. At a
minimum, this includes the FHWA or the FTA as the lead Federal agency,
and all cooperating agencies in the NEPA process. This may include the
USFWS, the NMFS, and the USACE*.*

-   The USACE reviews the project if a Section 404 of the Clean Water
    Act permit is required.

-   The USFWS (and/or the NMFS) may be engaged through consultation on
    endangered species or essential fish habitats;

-   EPA is involved through its review and approval responsibilities
    under Section 309 of the Clean Air Act; and

-   The state department of transportation is usually the project
    applicant, and other state environmental and historic preservation
    offices may be involved depending on their role in their respective
    state and the nature of the project.[^5] The SHPO/THPO coordinates
    compliance with Section 106 of the National Historic Preservation
    Act and 36 CFR Part 800.

-   The pertinent tribal government is involved if any tribal leads or
    interests are impacted by the transportation project.

Establishing a project timeline at the scoping stage, provides points of
reference for developing a shared set of expectations that will frame
the problem-solving and dispute resolution process.

Agency decision points in the NEPA process should be considered, and the
time required for each agency to analyze data and conduct its review.
Timelines should encompass permits that may be required by the USACE,
USFWS or the NMFS under the Endangered Species Act. (Note that specific
timelines set by law or rule applies to the section 404 permit process
and to reviews under the Endangered Species Act, and specific phases of
the NEPA process.) Several states have merged their NEPA and 404
permitting processes.

Give careful thought on how to conduct the discussion during the first
official project meeting for all affected agencies. As the lead agency,
the FHWA division office or FTA regional office should identify someone
to chair the meeting. An independent facilitator could help manage the
initial and/or subsequent meetings, and assist in designing the process
for developing a timeline (and for the reviews which follow). For
example, a facilitator was employed at the start of the review process
for the recent I-93 project in New Hampshire. A "partnering" concept
borrowed from the construction industry was used in conjunction with an
existing NEPA/404 merged process to establish timeframes and concurrent
points for the project, during the first meeting.

Other examples of interagency agreements that contain timelines are
posted on the FHWA Environmental Streamlining Web site:
\<www.fhwa.dot.gov/environment/strmlng.htm\>.

-   **Establish Guiding Principles**

The first few meetings of the project team provide the opportunity to
articulate principles that will guide constructive dialogue and
collaborative problem solving. Agreeing on guiding principles could
either precede or follow agreement on the project timeline. A general
set of principles that underpin the guidance provided here was set out
in Section 2.4. Another set of principles drawn from specific projects
in several states is offered as an example in Appendix E. The principles
are broad statements about engaging the agency representatives and
managing conflict during the review process.

-   **Define Meeting Protocols**

Upon establishing the project timeline and guiding principles, the
participating agencies should appoint a chairperson, and develop
protocols for consultation and collaborative problem solving, these
include: frequency of meetings, identify appropriate participants (and
substitutes) and appoint a note-taker, establish ground rules, and agree
on managing record-keeping.

The chair manages the meeting logistics (e.g., start and end the meeting
on time, make sure the agenda items are covered and minutes are taken),
and maintains impartiality during the discussions. As the lead agency,
the FHWA or FTA representative(s) could assume the role as chair. This
would require the individual to be impartial despite their traditional
role as project advocates. Staff from the participating agencies could
also chair the meetings, perhaps on a rotating basis.

The use of an outside facilitator on a regular basis could be considered
if the project appears to be particularly contentious. Suggestions for
obtaining assistance appear in Section 5.4.

-   **Define Ground Rules for Problem Solving**

Specific ground-rules governing interactions among the participants
should be established. Ground rules are designed to ensure that
exchanges of ideas and information are constructive and efficient --
that participants have opportunities to present their interests and
concerns, and are treated with respect. Appendix F contains an example
set of discussion ground rules.

-   **Define Procedures for Addressing Impasses and Resolving Disputes**

Working through disagreements is the essence of problem solving. Initial
discussions should include strategies for resolving future disputes.
When disagreements become disputes, a mechanism for resolution is often
critical to reaching agreement and continuing the project review
process.

Designing an effective dispute resolution process, including rules for
upward referrals to higher-level decision makers (see Section 5.5),
requires distinguishing among the different types of disputes, which may
require the assistance of a mediator with design expertise. Knowing when
the group is "stuck" and understanding the nature of the dispute is key
to getting the appropriate dispute resolution process started. The
following are suggestions for preventing impasses, recognizing when an
impasse has been reached, and moving forward again with constructive
problem solving.

-   If a serious dispute is building or an impasse has been reached, the
    agency representatives should seek counsel from their agency dispute
    resolution specialists. The specialists can assess the problem from
    their agency's perspective and provide advice on a process to move
    the negotiations forward.

-   Sometimes a dispute resolution expert from one of the disputing
    agencies will have the confidence of negotiators from the other
    agency, can provide advice to everyone, and act as the mediator.

-   Another option is to obtain the services of a third-party mediator
    from the roster of qualified mediators and facilitators, such as the
    one maintained by the U.S. Institute for Environmental Conflict
    Resolution (USIECR) or from another source. To learn more about the
    "Transportation Roster," (which is a subset of the USIECR consisting
    of third-party mediators with specific experience in the
    transportation development process) see www.ecr.gov.

Upon deciding to use a facilitator or a mediator, establish rules to
address:

-   Who will initiate an assisted negotiation process (one that uses a
    mediator possibly in conjunction with a technical expert). Any
    agency can make the request. However, all of the disputing agencies
    must agree before the deadline ends.

-   The duration of the dispute resolution process should be sufficient
    for the mediator or expert to

> understand the issues and conduct discussions, but short enough to
> move the deliberations toward resolution.

-   The consequences for failing to resolve the dispute typically
    involve referral to higher-level authorities.

These rules should recognize and accommodate existing regulatory
processes for elevation of disputes, as explained in the Section 5.5 and
existing processes. (In particular, a project sponsor or the state
Governor initiates the USDOT referral process whenever an agency fails
to comply with a project timeline).

**5.4 Assisted Problem Solving**

Most negotiations proceed without the assistance of a trained
facilitator. However, a facilitator can help guide the process in
situations where the issues appear contentious. If critical
disagreements emerge in the course of problem solving that need timely
resolution the participants should consider engaging a mediator. The
differences between facilitation and mediation are not crucial to this
discussion, except:

-   Mediators will focus on a specific dispute and assist in reaching
    explicit written agreements.

-   Competent facilitators (and mediators) can help improve the
    efficiency and effectiveness of the process, and:

    -   Help participants establish and enforce meeting and discussion
        rules.

    -   Assist in moving discussions beyond a statement of positions to
        identification of key issues and the interests of the parties.

    -   Clarify and reframe questions and issues helps to make the
        discussions more productive.

    -   Assist in managing technical information and presentations by
        experts, and thus help focus areas of disagreement.

-   Facilitators and mediators do [not]{.underline} make decisions. They
    help the participants with their problem-solving process.

Most agencies may continue to conduct discussions in an unassisted
manner. This is particularly true for agencies that have
long-established and good working relationships wih other agencies.
Assistance should be considered when the process is not working well and
when disputes arise frequently. Guidance on obtaining assistance from a
third-party facilitator or mediator is provided below.

-   **Define Procedures for Obtaining Assistance**

Much of the routine discussion about a transportation project and its
impacts will typically be "unassisted problem solving." That is, the
participants discuss and negotiate various aspects of the project and
possible mitigation proposals without assistance of a trained
facilitator or mediator.

Guidelines for determining when assistance should be requested are
summarized as follows:

-   At the beginning and periodically during the negotiations (if the
    discussions are not going well), obtain advice from agency dispute
    resolution specialists on collaborative problem solving.

-   For contentious projects, consider using a trained facilitator for
    all meetings (who could be an agency dispute resolution specialist
    who has the confidence of all the agencies, or an independent
    party).

-   Consider using a trained process neutral with expertise in designing
    the dispute resolution system.

-   If disagreements lead to impasses, use one of the agreed-upon
    dispute resolution processes. If the chosen process is assisted
    negotiation, it will involve a mediator (possibly a dispute
    resolution specialist from an agency or an independent mediator).

-   If the dispute involves data analysis and interpretation, consider
    obtaining additional assistance from independent technical experts.
    The most efficient approach to obtaining these services is through
    local colleges and universities where respected experts in a variety
    of technical fields are located. However, obtaining the services of
    these experts in a timely fashion may not always be possible. Other
    sources of technical expertise include relevant Federal and state
    agencies not involved in the dispute. Remember, however, that
    questions about information and data analysis frequently involve
    issues of agency jurisdiction.

A checklist for designing the conflict management and dispute resolution
framework (Figure 2) for specific projects is provided below. The lead
agency can use it to document each element in the framework and the
decisions that are reached.

> **Figure 2. [Project-Level Conflict Management and Dispute Resolution
> Checklist]{.underline}**
>
> *[Timelines and Guiding Principles]{.underline}*

1\. Time periods for concurrent review specified:

2\. Points of concurrence identified:

3\. Guiding principles established:

*[Meeting Protocols and Ground Rules]{.underline}*

1\. Frequency of meetings established:

2\. Agency representation established:

3\. Rules for meeting attendance established:

4\. Operational rules for meetings (ground rules) established:

5\. Meeting recorder(s) identified:

6\. Rules for circulating and approving/signing minutes and

agreements established:

7\. Need for a meeting "chair" and/or facilitator discussed:

Decision: FHWA to provide: \_\_\_\_\_\_

Other agency to provide (which?):

> Rotation among agencies: Outside Facilitator (how obtained?):

*[Dispute Resolution Procedures]{.underline}*

> 1\. Need for a dispute resolution design expert discussed:
>
> Decision: No need: Agency dispute resolution specialist:
>
> Outside dispute resolution design expert:
>
> 2\. Rules for when disputes become impasses established:
>
> 3\. Rules for who can activate the process established:
>
> 4\. Timelines for resolving disputes established:
>
> 5\. Rules for the use of mediators discussed:
>
> Use of agency dispute resolution specialists discussed:
>
> Use of outside mediators discussed:
>
> Decision (how
> obtained):\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
> \_\_ \_\_\_\_\_
>
> 6\. Rules for use of technical experts discussed:
>
> Decision (how obtained if needed):

###### [Procedures for Obtaining Assistance]{.underline}

> 1\. Mechanism(s) for obtaining facilitators and mediators established:
> \_\_\_\_\_\_\
> 2. Mechanism(s) for obtaining technical experts established:
> \_\_\_\_\_\_

######  [Upward Referral of Disputes]{.underline}

> 1\. Rules for when to refer a dispute established:
>
> 2\. Comparable levels of agency decision making established:
>
> 3\. Timelines and consequences for failure to resolve established:
>
> 4\. Rules for presentation of issues at next higher level established:
>
> 5\. Rules for recommended use of mediators discussed:
>
> Decision:
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**5.5 Upward Referral**

Every effort should always be made to resolve disputes at the lowest
level. This is the level where the project and the issues are well
understood by the agency representatives who are familiar with the
problem-solving environment and each other. However, disputes involving
reviews of transportation projects could be referred to a special
resolution body or elevated to higher level authorities within the
respective disputing agencies. The higher authorities could negotiate,
with or without assistance. If the dispute remains unresolved, it could
be elevated further to an ultimate authority as governed by applicable
laws and regulations. Specific suggestions for upward referral of
transportation disputes are presented below.

## Define Procedures for Upward Referral of Disputes

-   Resolution at a low level allows state/district/division offices to
    maintain control of the process. However, the ability to refer
    disputes to higher levels can be crucial to resolving them and
    maintaining momentum.

-   Knowing when to make an upward referral can be challenging. The
    desire to maintain control of negotiations by project-level agency
    representatives must be balanced against the need to keep moving in
    the review or permit approval process.

-   Establishing rules about who and when to make referrals will provide
    incentives to negotiate earnestly at the lowest organizational
    levels.

-   Higher-level negotiations may benefit from assistance. Procedures
    for upward referral should identify opportunities for obtaining the
    services of a mediator.

-   Higher-level authorities can bring broader perspectives on
    unresolved disputes. Project-level agency representatives may want
    to move on with other aspects of the project review or permitting
    process while attempts are made to resolve one or more specific
    disputes. This will maintain progress but at the risk of wasting
    time if the unresolved disputes involve decisions that could "make
    or break" the project or redirect it.

####### 

####### Establishing Criteria for Upward Referral

> A dispute may be appropriate for upward referral based on either of
> two criteria:

-   The impasse is not broken with either unassisted negotiations or the
    use of a mediator.

-   The dispute involves or is caused by:

-   Delays due to lack of sufficient agency resources,

-   Interpretation of agency policy, procedures, or legal mandates, or
    definitions of law terms or regulations.

-   Other types of disputes may also be appropriate for upward referral.

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-   **Identifying Organizational Levels for Upward Referral**

Careful consideration should be given to how an upward referral system
will operate. The objective should be to identify comparable levels of
decision making for each of the disputing agencies so that higher-level
negotiation can take place. Identifying comparable levels for referral
is not straightforward, as Federal and state transportation and the
resource agencies do not have parallel organizational structures.

Some states are developing a hybrid structure for upward referrals---a
board of interagency supervisors that meets regularly to hear disputes.
This structure eases first-level upward referrals and brings supervisory
personnel into the dispute resolution process on a regular basis.
Establishing such a body provides a clear message to project-level staff
that agency managers are dedicated to resolving disputes quickly and
effectively. Examples of structures and processes are provided in
Appendices G and H.

####### 

-   **Establishing Operating Rules and Time Frames**

Beyond the architecture of the referral system, operating rules to
identify whom and at what point referrals can be made, and the length of
time required for each step in the process need to be developed. A
useful rule is to allow referrals by any disputing agency whenever a
dispute is not resolved through assisted negotiation or involves
higher-level issues (specifically defined).

Also critical is the specification of timelines. The desire to act
expeditiously must be balanced against the time required to assemble and
present information to the higher-level decision makers, and the time
needed for negotiations to take place. Nevertheless, establishing
specific timelines and specifying the consequences if deadlines are
missed is crucial. Such consequences typically involve referrals to yet
higher-level decision makers.

-   **Preparing Higher-Level Decision Makers**

> \- The use of joint briefing statements prepared collaboratively by
> representatives of the disputing agencies is highly recommended.
> (Appendix I contains an example format for a joint statement.)
>
> \- The individual agencies may also wish to prepare position papers
> for their upper management and possibly for exchange with the other
> agencies. The first meeting of higher-level agency negotiators
> preferably would be a joint briefing by agency representatives who
> prepared the briefing statement. Note that the preparation of the
> joint statement may require the services of a facilitator or mediator
> and may prompt resolution of the dispute, negating the need for upward
> referral.

-   **Recognizing Formal Processes for the Highest Level Upward
    Referral**

> Decisions on whether and when to refer disputes to the highest level
> should consider
>
> other opportunities for elevating disputes under existing rules. These
> decisions are typically
>
> reserved for the last stage of dispute resolution when all other
> avenues have been exhausted.

**Formal Upward Referral Processes**

**CEQ Referral**

-   Under Section 309 of the Clean Air Act and the Council on
    Environmental Quality's (CEQ) regulations at 40 CFR Part 1504, any
    Federal agency may refer a dispute over an action proposed by
    another Federal agency to the CEQ. The head of the department or
    agency must make the referral within 25 days after the notice of
    availability of the FEIS. CEQ determines whether to take the
    referral based on several criteria, including a determination of
    whether the issue is of national importance.

-   If the CEQ takes the referral, several options are available for
    resolution, including making recommendations to the President. The
    most typical outcome is the publication of Findings and
    Recommendations. The referral process focuses on the underlying
    proposed action and how it does/does not meet the policy goals of
    NEPA, rather than procedural compliance with NEPA.

> **404(q) Elevation Process**

-   Under Section 404(q) of the Clean Water Act, the EPA, the USFWS, or
    the NMFS may request the elevation of a Section 404 permit decision
    by the USACE. Elevation can occur through successively higher
    levels, culminating with the Assistant Administrator of the EPA, an
    Assistant Secretary of the Department of the Interior, the
    Undersecretary of the Department of Commerce, and an Assistant
    Secretary of the Army.

-   Procedural or policy issues and those related to a specific project
    can be elevated, if the project would impact water resources of
    national importance. However, the USACE decides whether elevation
    will occur and makes the final permit decision. (Note that the EPA
    has separate authority under the Clean Water Act to prohibit or
    restrict disposal of dredged or fill material into waters of the
    U.S. under certain circumstances, and thus can veto a 404 permit
    issued by the USACE.)

> **Dispute Resolution under TEA-21 Section 1309(c)**

-   Elevation of disputes to the Secretary of the USDOT, by the FHWA
    Division Administrator or the FTA Regional Administrator is also
    possible per Section 1309(c) in the TEA-21. Elevation is triggered
    by failure or anticipated failure to comply with project timelines.
    This elevation process is available on the FHWA environmental
    streamlining website
    ([http://www.fhwa.dot.gov/environment/strmlng/index.htm]{.underline}
    ).

> **Figure 3. Effective Agency Dispute Resolution**

Recommended steps for effectively resolving disputes within and between
agencies:

**5.6 Training in Problem Solving and Dispute Resolution**

Study, training, and practice are keys to improving communication and
conflict management skills. Appendix K contains a bibliography of
conflict management and dispute resolution literature. Additional
training opportunities include:

-   FHWA will conduct regional interagency workshops on communication,
    negotiation, and dispute resolution based on this guidance.

-   A list of available courses and schedule of offerings at the
    National Highway Institute can be found on the FHWA Web site
    \<www.nhi.fhwa.dot.gov\>.

-   Interagency training at the beginning of a major transportation
    project should be considered. This may be the best way to build the
    team prior to initiating the review process, especially if key staff
    from the participating agencies are included, and examples of
    transportation projects from the local area are discussed or used in
    role-playing exercises. Recommended courses are those featuring
    "hands-on," interactive activities or sessions that are adapted
    specifically for project level team building.

Many resource agencies offer courses that would be useful. Information
regarding the courses can be found on the relevant agency's website.
These courses provide an opportunity to enhance knowledge and skills,
and to learn about the missions and operating regimes of other agencies;
this helps to strengthen interagency relationships. Periodic refresher
training also provides an opportunity to reinforce and strengthen new
skills and knowledge.

[^1]: The Environmental Streamlining Interagency Working Group has
    prepared a National Action Plan. See the FHWA Web site for more
    information \<www.fhwa.dot.gov/environment/strmlng.htm\>.

[^2]: Section 1309(d) of the TEA-21 specifies that "... a State ... may
    require that all State agencies that have jurisdiction by State or
    Federal law over environmental-related issues that may be affected
    by the project or that are required to issue any
    environmental-related reviews, analyses, opinions, or determinations
    on issuing any permits, licenses, or approvals for the project, be
    subject to the coordinated environmental review process established
    under this section...."

[^3]: The agencies' roles and responsibilities for NEPA, streamlining,
    and fulfilling environmental resource and protection mandates are
    summarized in Appendix K - Federal Agency Roles and Responsibilities
    Under NEPA and Environmental Streamlining.

[^4]: For the purposes of this guidance, "scoping" refers to the open
    and continuous interaction among transportation and resource
    agencies that occurs throughout the NEPA process; it is focused on
    identifying issues and approaches, rather than regulatory formal
    scoping required for the preparation of an EIS.

[^5]: Section 1309(d) of the TEA-21 specifies that "... a State ... may
    require that all State agencies that have jurisdiction by State or
    Federal law over environmental-related issues that may be affected
    by the project or that are required to issue any
    environmental-related reviews, analyses, opinions, or determinations
    on issuing any permits, licenses, or approvals for the project, be
    subject to the coordinated environmental review process established
    under this section...."