[Federal Register Volume 66, Number 92 (Friday, May 11, 2001)]
[Notices]
[Pages 24156-24163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11898]


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MORRIS K. UDALL SCHOLARSHIP AND EXCELLENCE IN NATIONAL ENVIRONMENTAL 
POLICY FOUNDATION

The United States Institute for Environmental Conflict Resolution


National Environmental Policy Act Pilot Projects; Comment 
Request; Announcement of Workshop

AGENCY: Morris K. Udall Scholarship and Excellence in National 
Environmental Policy Foundation, U.S. Institute for Environmental 
Conflict Resolution.

ACTION: Meeting notice and request for public comment.

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SUMMARY: At the request of U.S. Senators Max Baucus, Mike Crapo, Harry 
Reid, and Craig Thomas, the U.S. Institute for Environmental Conflict 
Resolution is exploring how pilot projects can be used to determine how 
collaboration, consensus building, and appropriate dispute resolution 
processes can improve the implementation of the National Environmental 
Policy Act (NEPA) in the context of federal lands and natural resource 
management issues. In the past months, the U.S. Institute, with the 
assistance of the Meridian Institute, has sought input from a diverse 
group of individuals representing environmental organizations, resource 
users, federal, state and local governments, tribes, participants in 
local and regional collaborative processes, and NEPA experts. The 
purpose of these individual conversations was to learn more about (1) 
What specific concerns or issues should be addressed by pilot projects, 
(2) what parameters should define the pilot projects initiative, (3) 
what criteria should be used to select pilot projects, (4) what 
institutional mechanisms would be needed to assure project oversight, 
implementation, and evaluation, and (5) how to maximize the likelihood 
that positive lessons learned from the pilots can be mainstreamed and 
begin to influence the implementation of NEPA in the future.
    A number of perceived problems with both NEPA implementation and 
collaborative processes were identified through these early 
conversations. Among the reported problems with NEPA implementation 
were:
    <bullet> Inconsistent implementation of NEPA's statutory 
requirements, implementing regulations and agency guidelines;
    <bullet> Inadequate coordination among federal agencies with 
overlapping jurisdictions and inadequate intergovernmental coordination 
with state agencies;
    <bullet> Overemphasis on NEPA documentation and litigation 
protection, rather than sounder strategic planning and decision-making;
    <bullet> Inefficient and duplicative processes; and
    <bullet> Inadequate attention to realizing the goals laid out in 
Section 101 of NEPA.
    The issues relating to collaborative processes and conflict 
resolution can be placed into four organizational contexts:
    <bullet> Interagency collaboration,
    <bullet> Intergovernmental collaboration,
    <bullet> Governmentally organized multi-stakeholder collaboration, 
and
    <bullet> Privately organized collaborative processes.
    Across these contexts, various problems were raised, such as:
    <bullet> A lack of guidance on options for agencies and 
inconsistent approaches to collaboration resulting in confusion;
    <bullet> The resource intensive nature of such processes and 
inadequate process funding;
    <bullet> Lack of clarity on stakeholder roles and responsibilities, 
and inadequate stakeholder guidance;.
    <bullet> Maintaining balanced stakeholder representation; and
    <bullet> Overemphasis on process of collaboration as an end itself 
and inadequate attention to planning outcomes, decision-making, and 
implementation.
    The U.S. Institute proposes that pilot projects may be useful in 
addressing the perceived challenges of NEPA implementation and 
providing clearer guidance regarding the use of collaborative processes 
in NEPA implementation to agencies, state and local governments, tribes 
and non-governmental interests with respect to public lands and natural 
resources management issues. Specifically, pilot projects could:
    <bullet> Clearly distinguish problems and concerns related to NEPA 
and the manner in which NEPA is being implemented from concerns about 
other environmental statutes and/or broader societal concerns;
    <bullet> Demonstrate innovative and practical solutions to clearly 
delineated NEPA implementation problems; and
    <bullet> Provide information about the conditions under which 
collaborative problem solving, consensus-building, and dispute 
resolution processes can improve implementation of NEPA.
    There are differing views regarding the effectiveness of NEPA 
implementation, reflecting legitimate underlying differences in values 
and perspectives about the nature and extent of the environmental 
impacts of proposed projects and how these impacts can best be avoided 
or mitigated. Most would agree, however, there is room for improvement 
in the application of NEPA procedures and in the achievement of its 
substantive objectives articulated in Section 101. Collaborative 
processes and conflict resolution strategies often involve or implicate 
NEPA review and analysis activities. Well-managed and highly visible 
pilot projects may bring to light important lessons for better 
integrating effective collaboration into NEPA activities and improving 
the quality and durability of management decisions informed by NEPA 
analyses.

[[Page 24157]]

    The U.S. Institute recommends four basic features for a pilot 
projects initiative. First, there must be a sufficient number of pilot 
projects from which to draw reliable lessons across the four different 
contexts of collaborative processes (i.e., interagency, 
intergovernmental, governmentally organized, and privately organized) 
and across a spectrum of agencies that have responsibility for lands 
and natural resource management issues.
    Second, it is important not to ``reinvent the wheel.'' The use of 
collaboration and dispute resolution on environmental issues, of which 
NEPA implementation is a subset, is not new. For this reason, the pilot 
projects under this initiative should be oriented less toward 
introducing a new concept or approach and more toward solving specific 
problems regarding the use of collaboration and dispute resolution in 
NEPA implementation. At the same time, the initiative should include 
research and a retrospective analysis of past and present NEPA projects 
involving collaborative and dispute resolution processes, in parallel 
with current projects in the pilot program.
    Third, pilot projects are not enough in and of themselves. 
Evaluation of the results of the pilot projects is essential in order 
to learn from both the successes and the failures. Articulating the 
criteria for assessing the outcomes of these pilot projects will be 
central to such an initiative. Dissemination of the results of the 
evaluations is essential to ensure that the lessons learned from these 
pilot projects are broadly understood and utilized.
    Finally, a transparent, open, and public process must be designed 
and managed to build consensus on the desired outcomes for this pilot 
projects initiative in relation to NEPA implementation in connection 
with federal lands and natural resource management issues. The 
interviews conducted thus far, along with this request for public 
comment, are a step toward laying the initial foundation for such a 
process.
    The U.S. Institute would like comments on how it can assure a 
balanced and effective approach to developing and managing such pilot 
projects. The U.S. Institute seeks written public comment and direct 
input at two public workshops on the approach it proposes to take to 
the NEPA pilot projects initiative. Based on the comments received from 
this notice and the public workshops, in addition to the feedback from 
earlier meetings and interviews, the U.S. Institute will provide a 
report and recommendations to the Senators for their consideration. The 
supplemental information below provides greater detail on the 
preliminary concepts under consideration.
    Based on the interviews conducted thus far and a review of the 
literature, the supplemental information provides a review of the 
perceived problems with NEPA implementation and collaborative 
processes, as well as the preliminary recommendations for the design of 
a pilot projects initiative to address the request of the Senators.

DATES: Comments must be submitted on or before June 25, 2001. The 
public workshops will be held in Denver, Colorado on June 8, 2001 and 
Washington, DC on June 14, 2001. A balanced set of stakeholder 
representatives will be invited to attend the workshops, which will 
also be open to the public. An opportunity will be provided for public 
comment. The meetings will begin at 8:30 a.m. and conclude at 
approximately 4 p.m. Members of the public who wish to attend one of 
the meetings are requested to contact the Meridian Institute (see 
ADDRESSES section) by June 1, 2001 so that a sufficient number of 
materials can be prepared and directions to the facility can be 
provided. Space may be limited, thus a RSVP is strongly encouraged.

ADDRESSES: Direct comments to: Meridian Institute, Attn. Tutti 
Tischler, P.O. Box 1829, Dillon, Colorado, 80435. Fax: 970-513-8348, e-
mail: <a href="/cdn-cgi/l/email-protection#99ededf0eafaf1f5fcebd9f4fcebf0fdb7f6ebfe"><span class="__cf_email__" data-cfemail="087c7c617b6b60646d7a48656d7a616c26677a6f">[email protected]</span></a> by no later than June 25, 2001.
    The meeting locations are:

June 8, 2001--Embassy Suites at Denver Airport, Conference Center, 4444 
North Havana, Denver, CO
June 14, 2001--GSA National Capitol Region Training Center, Rooms A & 
B, 490 L'Enfant Plaza, Suite 3207, Washington, D.C.

    If you are interested in attending either public workshop, please 
contact Ms. Tutti Tischler by June 1, 2001, Meridian Institute, P.O. 
Box 1828, Dillon, Colorado 80435, phone: 970-513-8340 ext. 252, fax: 
970-513-8348, or e-mail: <a href="/cdn-cgi/l/email-protection#d9adadb0aabab1b5bcab99b4bcabb0bdf7b6abbe"><span class="__cf_email__" data-cfemail="1460607d67777c787166547971667d703a7b6673">[email protected]</span></a>. Ms. Tischler can provide 
directions to both meeting locations.

FOR FURTHER INFORMATION CONTACT: Logistical Information: Tutti 
Tischler, Meridian Institute, P.O. Box 1828, Dillon, Colorado 80435, 
phone: 970-513-8340 ext. 252, fax: 970-513-8348, or e-mail: 
<a href="/cdn-cgi/l/email-protection#81f5f5e8f2e2e9ede4f3c1ece4f3e8e5afeef3e6"><span class="__cf_email__" data-cfemail="5723233e24343f3b3225173a32253e3379382530">[email protected]</span></a> for directions to either meeting location and other 
related information.
    Substantive Information: Sarah Palmer, U.S. Institute for 
Environmental Conflict Resolution, 110 South Church Avenue, Suite 3350, 
Tucson, Arizona 85701, fax: 520-670-5530, phone: 520-670-5299, e-mail: 
<a href="/cdn-cgi/l/email-protection#1f6f7e73727a6d5f7a7c6d31787069"><span class="__cf_email__" data-cfemail="3141505d5c5443715452431f565e47">[email protected]</span></a>

SUPPLEMENTARY INFORMATION:

I. Overview

A. The Senators' Request

    At the request of U.S. Senators Max Baucus, Mike Crapo, Harry Reid, 
and Craig Thomas, the U.S. Institute for Environmental Conflict 
Resolution is exploring how pilot projects can be used to determine how 
collaboration, consensus building, and appropriate dispute resolution 
processes can improve the implementation of the National Environmental 
Policy Act (NEPA). The Senators have asked specifically about the 
potential application of collaborative approaches to NEPA activities in 
the context of natural resources management and public lands issues. In 
order to respond to this request, and at the suggestion of the 
Senators, the U.S. Institute is seeking input from those with interest 
and experience in NEPA review activities and collaborative processes.

B. The U.S. Institute for Environmental Conflict Resolution

    Congress established the U.S. Institute in 1998 in the 
Environmental Policy and Conflict Resolution Act (Pub. L. 105-156). The 
Institute's primary purpose is to assist parties in resolving 
environmental, natural resource, and public lands conflicts. It was 
also charged with assisting in achieving the substantive goals of NEPA 
laid out in Section 101. The U.S. Institute is part of the Morris K. 
Udall Foundation, an independent federal agency of the executive branch 
located in Tucson, Arizona and overseen by a board of trustees 
appointed by the President. The U.S. Institute serves as an impartial, 
non-partisan institution providing professional expertise, services, 
and resources to all parties involved in such disputes, regardless of 
who initiates or pays for assistance. The U.S. Institute helps parties 
determine whether collaborative problem solving is appropriate for 
specific environmental conflicts, how and when to bring all the parties 
to the table, and whether a third-party facilitator or mediator might 
be helpful in assisting the parties in their efforts to reach consensus 
or to resolve the conflict.

C. Background and Context of the NEPA Pilot Projects Initiative

    This project builds on the results of a workshop co-sponsored by 
the Institute for Environment and Natural Resources

[[Page 24158]]

at the University of Wyoming and the O'Connor Center for the Rocky 
Mountain West at the University of Montana in March of 1999 and 
reported on in ``Reclaiming NEPA's Potential: Can Collaborative 
Processes Improve Environmental Decision Making?'' The workshop focused 
on the potential for improving NEPA through the use of collaborative 
processes.
    Chief among the important questions raised at this workshop were:
    <bullet> How can both national and local interests be properly 
considered and appropriately balanced through collaborative NEPA 
processes?
    <bullet> To what extent may multi-stakeholder collaborative groups 
participate in NEPA reviews and affect natural resource management 
decisions?
    <bullet> When should cooperating agency status be granted to state 
and local governments and how can such cooperation be managed most 
fairly and productively?
    <bullet> How can collaborative processes be used to improve the 
implementation of NEPA and in particular help achieve the substantive 
goals stated in Section 101?
    In 1995, coinciding with the twenty-fifth anniversary of the 
passage of NEPA, the Council on Environmental Quality (CEQ) undertook a 
study of the effectiveness of NEPA implementation. This report, which 
refers to NEPA as a ``framework for collaboration,'' focused on five 
critical areas within which improvements could be made to the 
implementation of NEPA, including:
    <bullet> Strategic planning--the extent to which agencies integrate 
NEPA goals into their internal planning processes at an early stage;
    <bullet> Public information and input--the extent to which an 
agency provides information to and takes into account the views of the 
surrounding community and other interested members of the public during 
its planning and decision-making processes;
    <bullet> Interagency coordination--how well and how early agencies 
share information and integrate planning responsibilities with other 
agencies;
    <bullet> Interdisciplinary place-based approach to decision making 
that focuses the knowledge and values from a variety of sources on a 
specific place; and
    <bullet> Science-based and flexible management approaches once 
projects are approved.
    This current effort is guided by an interest in soliciting broad-
based and balanced feedback on a pilot projects initiative, designing a 
well-managed and transparent project, and providing timely and useful 
information. Based on the Senators' request and with the assistance of 
the Meridian Institute, the U.S. Institute is seeking input from those 
with interest and experience in NEPA review activities and multi-
stakeholder collaborative processes. To date, the U.S. Institute and 
Meridian staff have conducted approximately fifty interviews with 
individuals representing a diversity of interests and perspectives on 
this initiative.

D. Working Definitions

    For the purpose of this draft document, the following working 
definitions will be used:
    Collaboration and Collaborative Processes involve people who 
represent diverse interests, perspectives, and institutions that agree 
to work together to identify problems, share information, and, where 
possible, develop mutually acceptable solutions. Collaborative 
processes frequently take place prior to a formal decision being made 
by the responsible institution. The term collaboratives is sometimes 
used to refer to privately organized rather than governmentally 
organized collaborative processes.
    Consensus-Building Processes constitute a form of collaboration 
that explicitly includes the goal of reaching a consensus agreement on 
policy matters, environmental conflicts, or other issues in 
controversy. Consensus is often, although not always, defined as ``no 
dissent.'' Consensus building processes often, although not always, 
involve the assistance of a neutral convenor, facilitator, or mediator.
    Dispute Resolution Processes aim to resolve specific and definable 
disputes over formal agency decisions that have been or are about to be 
made. The parties to a dispute resolution process are typically 
entities that can be granted standing to participate in the dispute 
resolution process. Under this definition, litigation is a form of 
dispute resolution process. The terms appropriate or alternative 
dispute resolution refer to non-adversarial processes that take place 
in advance of or in conjunction with formal litigation usually 
involving a neutral mediator to assist the parties in their 
negotiations.
    Non-governmental interests refer broadly to non-governmental 
organizations (NGOs), such as national environmental groups, local 
citizens groups, and other public interest oriented groups, as well as 
companies, associations, and organizations representing commercial and 
private sector interests. Given the focus on federal lands and natural 
resource management issues in this document, non-governmental interests 
also include resource users such as ranchers, loggers, timber 
companies, miners, mining companies, oil and gas companies, etc.
    Stakeholders refers to the individuals, organizations, and 
institutions that have a stake in the outcome of a decision because 
they are either directly affected by the decision or have the power to 
influence or block the decision.

II. Findings From Preliminary Research and Interviews

A. Introduction

    Based on a review of currently available literature and the results 
of the interviews described above, a number of challenges appear to be 
associated with NEPA implementation, as well as with the use of 
collaborative processes initiated in conjunction with NEPA 
implementation (whether the collaborative process is before or early in 
a NEPA process or, alternatively, after the NEPA process has begun and 
actual or potential disputes have emerged). The challenges with both 
NEPA implementation and collaborative approaches, which are reviewed 
below, should be considered as the basis for focusing the pilot 
projects.

B. Reported Problems Related to NEPA Implementation

    Some of the stakeholders interviewed expressed concern about 
whether the Senators who initiated the request or the U.S. Institute 
believe ``NEPA is broken and needs to be fixed'' and, if so, whether 
there is a belief that the use of collaboration and dispute resolution 
is the way to fix the problem. It is important to point out that almost 
without exception the stakeholder representatives interviewed indicated 
they do not believe there is a problem with the statute itself, but 
many felt there are concerns with how the statute is being implemented.
    The interviews also evidenced concerns about the underlying 
authority and standards for agency decisions contained in other 
environmental statutes. In some cases the criticisms initially leveled 
at the NEPA process were found to be based primarily on concerns with 
requirements of other substantive laws. In the case of federal lands 
and natural resource management issues, the statutes that intersect 
with NEPA include but are not limited to the Endangered Species Act 
(ESA), the Federal Lands Policy and Management Act (FLPMA), the 
National Forest Management Act (NFMA), and the Clean Water Act (CWA).
    Since the focus of this effort is on the use of collaborative 
processes and appropriate dispute resolution in NEPA

[[Page 24159]]

implementation, it will be important to clearly distinguish between 
perceived problems and concerns with the authority and standards of 
decision making contained in other statutes, and perceived problems and 
concerns with how agencies are fulfilling their NEPA duties and 
obligations. While this will be a challenge when identifying criteria 
for selecting pilot projects, it will be even more of a challenge in 
evaluating the effectiveness of the pilot projects and translating any 
new insights from the pilots to concrete suggestions for improving NEPA 
implementation.
    Some stakeholders have suggested that the U.S. Institute undertake 
a systematic retrospective analysis of collaboration and NEPA 
implementation to help inform the development of clearly delineated 
problem statements with respect to the pilot projects initiative. The 
U.S. Institute agrees with the need to have clearly delineated problem 
statements that can be used to develop criteria for selecting and 
evaluating pilot projects. However, it appears that there is sufficient 
clarity regarding problems reported with NEPA implementation to proceed 
with the development of a pilot initiative, which would include a 
systematic retrospective analysis in parallel with the pilot projects.
    From its interviews and a preliminary review of the literature, the 
U.S. Institute has compiled the following list of perceived problems 
with NEPA implementation.
    1. Inconsistent NEPA Implementation. Inconsistent implementation 
and interpretation by lead federal agencies of the statutory 
requirements of NEPA and the CEQ implementing regulations and 
guidelines.
    2. Efficiency and Effectiveness. How to ``streamline'' NEPA 
implementation by making it more efficient, less time consuming, and 
equally, if not more, effective.
    3. Inappropriate Timing of Interagency or Intergovernmental 
Coordination. Many times a lead agency consults with other agencies 
with overlapping regulatory authority after alternatives have been 
identified and publicly discussed with stakeholders, only to find that 
one or more of the alternatives under consideration is unacceptable to 
the agency with overlapping jurisdiction.
    4. Overemphasis on Documentation with Insufficient Attention to 
Planning and Decision Making. There is an excessive focus on NEPA 
documentation and efforts to make NEPA documents ``litigation proof'' 
rather than using NEPA to improve strategic planning and decision-
making.
    5. Inadequate Attention to Section 101. CEQ's regulations for 
implementing the procedural provisions of NEPA (40 CFR 1502.2(d)) 
states that an environmental impact statement:

Shall state how alternatives considered in it and decisions based on 
it will or will not achieve the requirements of sections 101 and 
102(1) of the Act and other environmental laws and policies.

Section 101 of the Act includes the declaration of environmental policy 
that is the cornerstone of NEPA. Section 102(1) of the statute directs 
that,

To the fullest extent possible the policies, regulations, and public 
laws of the United States shall be interpreted and administered in 
accordance with the policies set forth in this Act.

Some stakeholders believe there has been inadequate attention paid to 
the requirements of NEPA and its implementing regulations.

C. Reported Problems Associated With But Not Limited to NEPA 
Implementation

    Both the interviews and the NEPA-related literature cite two 
additional issues that influence the NEPA implementation process but 
are not exclusive to that process. The first is information management 
and use of technical information. The second issue is the role of the 
Federal Advisory Committee Act in the NEPA process.
1. Information and Information Technology Related Problems
    The quality of NEPA analysis depends in large part on the quality 
of information that is available to and considered by decision-makers 
and the general public. As a consequence, a number of reported 
information and information technology related problems may warrant 
consideration in the design of pilot projects. These include:
    a. Lack of Baseline Data. The lack of high quality baseline 
environmental data, especially for land management agencies, that can 
be periodically updated and used as the basis for NEPA analysis, often 
results in the re-creation of high quality data on a case-by-case 
basis.
    b. Insufficient Utilization of Information Technology. Information 
technology, especially decision-support tools and geographic 
information systems are not widely available or are under-utilized.
    c. Excessive Data Demands. Guidance is needed on how to identify 
what data would be useful in improving the quality of the decision. 
While thorough documentation and requests for additional information 
are often warranted, excessive data generation and reporting can 
overwhelm the ability of decision makers and the public to understand 
the key points.
2. The Federal Advisory Committee Act (FACA)
    Federal agencies have the option of utilizing citizen advisory 
committees and work groups to advise agencies during the NEPA process. 
However, many report real and perceived limitations to the use of a 
federal advisory committee.
    a. Limitations and Perceptions. Most federal agencies are limited 
in the number of advisory committees they can establish. In addition, 
there is a widespread perception that the FACA can be an impediment to 
undertaking governmentally organized multi-stakeholder collaboration. 
These real and perceived limitations can create incentives to 
circumvent the requirement to establish an official advisory committee 
when in reality a FACA-chartered committee may be the best course of 
action.
    b. Advisory vs. Decisional. Federal advisory committees advise 
agencies on specific issues. There is a need for clearer guidance about 
how to ensure governmentally organized multi-stakeholder collaboration 
processes maintain this advisory role and yet, where appropriate, 
strive to achieve a consensus that includes commitments from the 
sponsoring agency (akin to what takes place in a regulatory 
negotiation).

D. Reported Problems Associated With Collaborative Processes and 
Dispute Resolution

    From the literature surveyed and the interviews conducted, the U.S. 
Institute and Meridian Institute staff identified a number of perceived 
problems with the use of collaborative and appropriate dispute 
resolution processes. It was apparent from the interviews that it is 
useful to distinguish between among four types of collaborative 
processes based on their organizational context:
    <bullet> Interagency collaboration and coordination involving 
affected agencies within the federal government;
    <bullet> Intergovernmental collaboration and coordination involving 
the lead federal agency and affected agencies from other levels of 
government, including tribal, state, and local government;
    <bullet> Governmentally organized multi-stakeholder collaboration 
that is initiated and organized by the lead federal agency, or a 
cooperating governmental agency, and involves

[[Page 24160]]

representatives of affected non-governmental interests; and
    <bullet> Privately organized collaborative processes that are 
initiated, organized, and conducted by non-governmental interests who 
have a stake in the outcome of agency decisions where there is limited 
or no direct involvement of the lead federal agency.
    While specific issues and concerns were raised within each of these 
contexts, there were several cross-cutting problems reported, 
including:
1. Problems That Arise When Initiating Collaborative Processes
    a. Lack of Guidance for Deciding How to Collaborate. Agencies lack 
guidance on whether and how to engage in multi-stakeholder 
collaborative processes, separate one-on-one consultations with 
stakeholder representatives, or standard public participation 
techniques. In some cases, such processes are initiated after an agency 
decision has already been made, for example, which undermines the 
efficacy of the collaboration.
    b. Inadequate Stakeholder Representation. Lead agencies often do 
not involve all government agencies and/or non-governmental interests 
that have a stake in the outcome of the collaborative process. There is 
a lack of awareness and practical guidance for determining the major 
stakeholders who need to be represented in a collaborative process.
    c. Lack of Resources. Agencies have limited financial and personnel 
resources to undertake and organize a multi-stakeholder collaboration. 
Similarly, the lack of financial and personnel resources may limit some 
stakeholder groups from effectively participating in multi-stakeholder 
collaboration.
    d. Involving Nationally Oriented Groups in Locally Oriented 
Processes. Where locally oriented, federally organized multi-
stakeholder collaborative processes include issues that are of a 
broader national interest, it is difficult to involve national groups 
directly in the collaborative process.
2. Problems That Arise During Collaborative Processes
    a. Roles and Responsibilities of Agency Representatives. Lack of 
clarity regarding the decisionmaking roles, responsibilities, and 
authority of agency representatives who are ``at the table'' in 
relation to those who are at ``higher'' levels. This is especially 
problematic in locally oriented processes that require decisions to be 
made at the regional and/or national levels.
    b. Maintaining Balanced Stakeholder Representation. It can be 
difficult to maintain balanced involvement of all major stakeholder 
interests throughout the course of the collaborative process. There is 
a need for guidance on how to handle instances where stakeholder 
representatives participate in a collaborative process until they feel 
their interests are not being fully satisfied and then pullout and 
resort to traditional adversarial strategies.
    c. Length of Time Needed to Complete Multi-Stakeholder 
Collaboration. The time it takes to complete multi-stakeholder 
collaborative processes, especially consensus-based processes.
    d. Goal Confusion. In some cases, the process of collaboration 
itself may develop into the primary goal of the participants rather 
than focusing on improved and informed decisions and designing a 
process that will effectively achieve this end.
3. Problems That Arise When Agency Decisions Are Made
    a. Unrealistic Stakeholder Expectations. Nongovernmental 
stakeholders can be disappointed if the decision making framework is 
not specified. When non-governmental stakeholders participate in 
collaborative processes or assisted negotiations, sometimes the 
decision rules within the group are not clarified at the outset and the 
legal duties and obligations of the agency representatives for specific 
decisions or actions are not fully understood.
    b. Inconsistent Decisions. Sometimes agency decision makers choose 
courses of action different from those arrived at by consensus in a 
collaborative process or by assisted negotiation in a conflict 
resolution process. The value of such participatory processes can be 
undermined. Guidance is needed to minimize this occurrence by assuring 
consistent communication within agencies during their participation.
    c. Implementation Challenges. Recommendations from collaborative 
processes or conflict resolution processes may not always take into 
account their feasibility or resource requirements. Institutional 
structures may not exist or be limited to assure appropriate follow-
through and monitoring to ensure implementation. Mechanisms for 
assuring the practicality of implementation requirements should be 
developed.
4. Problems Associated With Privately Organized Collaborative Processes
    In addition to the cross-cutting issues raised in the sections 
above, there are some specific concerns reported regarding privately 
organized multi-stakeholder collaborations. Some examples of issues 
that may need to be addressed include:
    <bullet> What should agency personnel do when the process 
explicitly excludes certain stakeholder interests?
    <bullet> How should they respond when there is clear evidence of an 
attempt to include representation of all stakeholder interests but not 
everyone chooses to participate?
    <bullet> What should the agency do when the process includes a 
balanced representation of the diverse stakeholders that have an 
interest in the issues being discussed?
    <bullet> Should federal agency staff participate in such processes 
if they are requested to do so and, if so, to what degree?
    <bullet> Should the results of privately convened collaborative 
processes be given special weight or consideration by agencies and, if 
so, how and under what conditions?

III. The Potential Value of Pilot Projects

    The results of the interviews and the preliminary review of the 
literature indicate there is some dissatisfaction with how agencies are 
implementing NEPA. These concerns are reflected in the list of reported 
problems outlined above. At the same time, many of the concerns that 
are attributed to NEPA implementation reflect broader concerns about 
the role of the federal government in public lands and natural resource 
management issues and with environmental decision-making in general.
    Notwithstanding Congress' declaration more than 30 years ago of a 
national environmental policy in Section 101 of NEPA, it is clear the 
value conflicts that underlie environmental issues remain pronounced. 
Collaborative problem solving, consensus building, and dispute 
resolution processes have been used to address these value conflicts in 
a variety of situations since the mid-1970s. While these processes have 
been utilized in increasingly sophisticated ways and in a wide variety 
of circumstances by virtually every federal agency, as is evident from 
the problem statements outlined above, there is still much that can be 
learned about how to more effectively utilize these processes.
    Undertaking a carefully designed pilot projects program will permit 
the U.S. Institute and those who have an interest in improving the 
quality of federal agency NEPA analyses and decision-making processes 
on public lands and natural resource management issues to:
    <bullet> Clearly distinguish problems and concerns related to NEPA 
and the manner in which NEPA is being

[[Page 24161]]

implemented from concerns about other environmental statutes and/or 
broader societal concerns;
    <bullet> Demonstrate innovative and practical solutions to clearly 
delineated NEPA implementation problems; and
    <bullet> Learn more about the conditions under which collaborative 
problem solving, consensus-building, and dispute resolution processes 
can improve implementation of NEPA.
    There are differing views regarding the effectiveness of NEPA 
implementation, reflecting legitimate underlying differences in values 
and perspectives about the nature and extent of the environmental 
impacts of proposed projects and how these impacts can best be avoided 
or mitigated. Most would agree, however, there is room for improvement 
in the application of NEPA procedures and in the achievement of its 
substantive objectives articulated in Section 101. Collaborative 
processes and conflict resolution strategies often involve or implicate 
NEPA review and analysis activities. Well-managed and highly visible 
pilot projects may bring to light important lessons for better 
integrating effective collaboration into NEPA activities and improving 
the quality and durability of management decisions informed by NEPA 
analyses.
    As indicated by the interviews and preliminary review of the 
literature, pilot projects could yield important insights into possible 
improvements in NEPA implementation and guidance with respect to:
    <bullet> CEQ regulations and implementing NEPA;
    <bullet> Federal agency regulations;
    <bullet> Tribal, state, and local government guidance; and
    <bullet> NGO guidelines and practices for participating in NEPA 
implementation.

IV. Designing a Pilot Projects Initiative

A. Challenges

    The design and implementation of a pilot projects initiative raises 
a number of challenges, including how to best:
    <bullet> Ensure that all interests will be fairly represented in 
the selection, evaluation, and analysis of such projects,
    <bullet> Identify and respond to potential institutional barriers,
    <bullet> Address concerns on the one hand that this initiative 
might lead to unanticipated changes in NEPA implementation, and on the 
other, that reform of NEPA implementation may not be forthcoming, and
    <bullet> Manage the projects with appropriate public oversight.
    To address these challenges, the U.S. Institute recommends 
establishing some fundamental conditions for undertaking a pilot 
projects initiative, identifying a set of criteria for selecting the 
pilot projects, and establishing a separate set of criteria for 
evaluating the results of the pilot projects.

B. Basic Features of a Pilot Projects Initiative

    The U.S. Institute recommends four basic features for a pilot 
projects initiative. First, there must be a sufficient number of pilot 
projects from which to draw reliable lessons across the four different 
types of collaborative processes (i.e., interagency, intergovernmental, 
governmentally organized, and privately organized) and across a 
spectrum of agencies that have responsibility for federal lands and 
natural resource management issues.
    Second, it is important not to ``reinvent the wheel.'' The use of 
collaboration and dispute resolution on environmental issues, of which 
NEPA implementation is a subset, is not new. For this reason, the pilot 
projects under this initiative should be oriented less toward 
introducing a new concept or approach and more toward solving specific 
problems regarding the use of collaboration and dispute resolution in 
NEPA implementation. At the same time, the initiative would include 
research and a retrospective analysis of past and present NEPA projects 
involving collaborative and dispute resolution processes, in parallel 
with current projects in the pilot program, in order to broaden the 
information gained.
    Third, pilot projects are not enough in and of themselves. 
Evaluation of the results of the pilot projects is essential in order 
to learn from both the successes and the failures. Articulating the 
criteria for assessing the outcomes of these pilot projects will be 
central to such an initiative. Dissemination of the results of the 
evaluations is essential to ensure that the lessons learned from these 
pilot projects are broadly understood and utilized.
    Finally, a transparent, open, and public process is needed to build 
consensus regarding the desired outcomes of this pilot projects 
initiative in relation to NEPA implementation on federal lands and 
natural resource management issues. The interviews conducted thus far 
along with this request for public comment are a step toward laying the 
initial foundation for such a process.

C. Input Sought on How To Interpret the Suggestion of the Senators To 
Focus on Federal Lands and Natural Resource Management Issues

    The U.S. Institute seeks input on how broadly or narrowly it should 
interpret the suggestion from the Senators to focus on ``federal lands 
and natural resource management'' issues. This question should be 
considered in light of the work to ``streamline'' NEPA implementation 
in several agencies such as the Federal Highway Administration as well 
as in specific situations such as the U.S.D.A. Forest Service's and the 
Department of the Interior's National Fire Plan. There are concerns 
that NEPA streamlining efforts should seek to retain NEPA's 
effectiveness and at the same time improve its efficiency. Streamlining 
efforts will likely require a significant level of collaboration and 
dispute resolution planning to meet these ends. The need for effective 
collaboration, particularly interagency and intergovernmental 
collaboration, may be even more significant in instances where efforts 
are being made to streamline NEPA implementation.
    The U.S. Institute would value input on how broadly this initiative 
should define its focus on federal lands and natural resource 
management issues. The strictest interpretation might limit the focus 
to NEPA reviews conducted by land management agencies such as the 
U.S.D.A. Forest Service, Bureau of Land Management, and National Park 
Service. Alternatively, a broader focus would include federal agencies 
whose mission includes, but not exclusively, the management of a 
natural resource, e.g., military reserves, or the mitigation of impacts 
on natural resources, e.g., transportation projects, airport 
expansions. It might also include opportunities to work with tribal 
governments with resource management issues impacting tribal lands and 
adjacent federal or state lands.

D. The U.S. Institute's Role

    The U.S. Institute proposes to serve as the lead agency for the 
purpose of administering the NEPA Pilot Projects Initiative consistent 
with its mission to assist with the implementation of the provisions of 
Section 101 of NEPA. This role would include:
    <bullet> Providing program administration and oversight;
    <bullet> Making the final decisions on the criteria for selecting 
the pilot projects;
    <bullet> Selecting the pilot projects;
    <bullet> Collaborating with participating agencies as necessary and 
appropriate to select and oversee neutral third party service providers 
such as conveners,

[[Page 24162]]

facilitators, fact-finders, trainers, mediators, etc.;
    <bullet> Identifying the criteria by which to evaluate the outcome 
of the pilot projects;
    <bullet> Selecting and overseeing the work of independent 
evaluators;
    <bullet> Reporting on the lessons that are learned from a 
retrospective analysis and prospective pilot projects; and
    <bullet> Establishing and managing a federal advisory committee 
that will be used to provide input on all of the above.
    Several commenters strongly recommended the use of a federal 
advisory committee to help guide the U.S. Institute on these matters to 
assure transparency and build trust in the NEPA pilot projects 
initiative. The U.S. Institute proposes to form a federal advisory 
committee made up of a balanced but manageable number of individuals 
representing organizations that have an interest in the initiative.

E. Criteria for Selecting Pilot Projects

    A preliminary list of the criteria the U.S. Institute proposes to 
use in selecting the pilot projects is as follows:
    <bullet> Geographic balance (while it is expected that a majority 
of projects will be drawn from the Western U.S., an attempt should be 
made to select projects from the entire nation);
    <bullet> Diversity of agency participation from lead federal 
agencies, states, counties, and tribes;
    <bullet> Diversity of the federal lands and natural resource 
management issues to be addressed;
    <bullet> Balance of projects across the four different categories 
of collaboration (i.e., interagency, intergovernmental, governmentally 
organized multi-stakeholder, and privately organized multi-stakeholder) 
as well as projects that employ dispute resolution processes;
    <bullet> Projects of local, state, regional, and national scale 
representing the spectrum of issues that are the focus of the NEPA 
analysis and collaborative process;
    <bullet> Projects that are occurring at a variety of different 
stages in the NEPA review and decision-making process (where a range of 
collaborative and dispute resolution processes could or are occurring).
    In addition, the U.S. Institute is considering giving priority to 
pilot projects that:
    <bullet> Are explicitly designed to address one or more of the NEPA 
implementation and/or collaborative process problems identified above;
    <bullet> Have a genuine potential for success (e.g., for 
collaborative processes, decisions have not been predetermined, 
adequate incentives exist for collaboration or dispute resolution, 
etc.); and
    <bullet> Emphasize innovative approaches to the integration of the 
substantive aspirations of Section 101 of NEPA with the implementing 
procedures of Section 102.
    The U.S. Institute encourages comments on this list.

F. Evaluation and Reporting

    In order to have value, the proposed NEPA pilots project initiative 
must include both an evaluation component and a reporting component. 
The evaluation component will include evaluations of the results and 
outcomes of the pilot projects by independent and professionally 
qualified evaluators. A concerted effort will be made with the guidance 
of the federal advisory committee to establish agreed upon criteria for 
assessing the efficacy and effectiveness of the pilot projects. At the 
conclusion of the initiative, the U.S. Institute will report on lessons 
learned, taking into consideration the findings of the independent 
evaluations and the retrospective analysis of the research, and make 
recommendations for changes, if any, that might be made to existing 
NEPA policies, guidelines or regulations.
    As noted above, the U.S. Institute proposes to establish a federal 
advisory committee to advise the Institute on critical components of 
the NEPA pilot projects initiative, including the criteria for 
conducting evaluations of the pilot projects and how to best select and 
oversee the independent evaluators. The proposed role for the advisory 
committee includes the review and interpretation of the evaluation 
results and the identification of what it sees as key findings that the 
U.S. Institute should consider.

V. Conclusion

    In order to explore the proposal for pilot projects more fully, the 
U.S. Institute is holding two public workshops which will be 
facilitated by the Meridian Institute. The workshops are scheduled for 
June 8, 2001 in Denver, Colorado and June 14, 2001 in Washington, DC 
Representatives of resource user groups, environmental organizations, 
academia, state, local, and tribal governments, and federal agencies 
are being invited in order to participate in a balanced and 
constructive discussion on this initiative. These participants will not 
act as a committee and there will not be any attempt to seek a group 
recommendation on any issue. Additional seats will be available for 
members of the public, who will be given limited time on the agenda to 
provide comments.
    If you would like to attend the workshop, please contact the 
Meridian Institute (see ADDRESSES section) by June 1, 2001 so that it 
can determine the amount of interest and prepare sufficient materials.
    Based on the input provided at this workshop and any written 
comments received, as well as the information summarized in this 
document, the U.S. Institute will prepare formal recommendations to the 
Senators on a NEPA pilot projects initiative. Further development of 
such an initiative relies on the feedback of the public, interested 
stakeholders, and the Senators who requested the information.

Public Comments Solicited

    The U.S. Institute will take into consideration any comments and 
additional information received on or prior to the close of the 45-day 
comment period.

Selected References

    National Environmental Policy Act 42 U.S.C. 4321-4337.
    Regulations for Implementing the Procedural Provisions of the 
National Environmental Policy Act. 40 CFR 1500-1508 (1992).
    ``The National Environmental Policy Act. A Study of its 
Effectiveness After Twenty-five Years.'' January, 1997. Executive 
Office of the President, Council on Environmental Quality.
    ``Reclaiming NEPA's Potential: Can Collaborative Processes Improve 
Environmental Decision Making?'' March 1999. Workshop Proceedings. Co-
sponsored by the Institute for Environment and Natural Resources at the 
University of Wyoming and the O'Connor Center for the Rocky Mountain 
West at the University of Montana.
    Bingham, Gail and Lee M. Langstaff. ``Alternative Dispute 
Resolution in the NEPA Process''. Resolve Center for Environmental and 
Public Policy Dispute Resolution. http://www.resolv.org/Resources/pubs/default.htm
    Caldwell, Lynton H. 1998. ``The National Environmental Policy Act. 
An Agenda for the Future.'' Indiana University Press. 210 pp.
    Miller, Anne Norton. 2000. ``NEPA Where are we? Where are we going? 
`` Environmental Practice. 2(4): 275-279.

    Authority: 20 U.S.C. 5601-5609.


[[Page 24163]]


    Dated: May 7, 2001.
Christopher L. Helms,
Executive Director, Morris K. Udall Foundation.
[FR Doc. 01-11898 Filed 5-10-01; 8:45 am]
BILLING CODE 6820-FN-P


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