RAPID/Best Practices/Memorandums of Understanding (MOUs)

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RAPID

Regulatory and Permitting Information Desktop Toolkit

Best Practice: Memorandums of Understanding (MOUs)

Multi-state transmission siting and permitting projects benefit from effective collaboration between government entities, tribes, project proponents, and other entities involved. Development of a Memorandum of Understanding (MOU) is a way to formalize the collaborative process in an agreement that serves multiple purposes, from managing the siting/permitting process, to clarifying roles and responsibilities of participants, to establishing agreed-upon mitigation strategies and study approaches.


This page provides several tools that transmission project teams can reference during MOU development. Discussion below provides a description of roles of MOUs, benefits and challenges of MOUs, and Best Practice recommendations. This page also provides example MOUs from past transmission projects, other energy projects, and from outside the energy sector.

Roles of MOUs

MOU development provides a forum and opportunity for collaboration and interaction between parties involved in a transmission line process. It can provide formal structure to a process, by accomplishing the following:

  • Defining roles and responsibilities of participants;
  • Establish process for working together;
  • Establish joint goals, agreed-upon principles that can be referred to when parties disagree;
  • Establishing trust between stakeholders;
  • Facilitate understanding between stakeholders;
  • Establishing framework for working across agency boundaries, and formalizing interagency relationships;
  • Establish agreed-upon technical standards and mitigation approaches;
  • Establish funding sources/mitigation fund accounts;
  • Establish a schedule;
  • Establish single environmental review document/procedure; and
  • Establish data exchange process or data sources.

Types of MOUs

One way to foster agreements between federal and state agencies in resource management may be to develop resource-specific MOUs. Resource-specific MOUs may be used as a way to establish a forum for discussion and agreement on resource study approaches. MOUs are recognized in cultural and biological resource circles as Programmatic Agreements (PAs). There are two general types of PAs –

  • Project-Specific PAs describes actions of parties in order to meet environmental compliance responsibilities for a specific project
  • Procedural PAs describe process through which parties will meet compliance responsibilities for agency programs, category of projects, or particular types of resources

Key Strategies

  • One benefit of the MOU development process is that it serves to bring divergent parties together at the outset of a transmission project, providing a forum for collaboration, by fostering teamwork and establishing a symbolic a sense of accomplishment among stakeholders.
  • One way to foster agreements between federal and state agencies in resource management may be to develop resource-specific MOUs. Resource-specific MOUs may be used as a way to establish a forum for discussion and agreement on resource study approaches.
  • Multi-state transmission siting and permitting projects benefit from effective collaboration between government entities, tribes, project proponents, and other entities involved.

Best Practice Actions

PARTICIPATION

Include Appropriate Signatories. Having the appropriate high-level signatories is important. Governor, or Secretary of the Interior (or similar high-level official) adds weight and encourages commitment from employees.

Buy-in/leadership from federal agency regional levels is critical. Buy-in/leadership at the agency regional level is critical to ensure higher-level leadership buy-in, and provide clear direction to project managers and field offices to develop a consistent sense of commitment and responsibility throughout all levels of agency involvement.

Include Governor’s Energy Office representatives as signatories. Where they exist, governor’s energy office representatives can be included as signatories to represent statewide interests.

ELEMENTS OF MOUs

MOUs often do not incorporate the functional project management provisions required to move the project forward by holding staff accountable to plans and schedules.

Include roles and responsibilities. In the body of the MOU, list and define roles and responsibilities for major participants, including project managers, POCs, high-level signatories, and agencies.

Hold regular meetings. Commit in MOU to having regular (monthly or quarterly) meetings with attendance from key supervisory personnel from regulatory agencies.

Include project timelines and schedules. One of the major challenges with interstate transmission is the time it takes to site and permit a project, which can exceed 7-10 years. Including a project timeline and schedule goals/milestones provides a target for the team to shoot for, that is agreed upon by all signatories. To account for unforeseen circumstances, include a process by which the schedule can change, perhaps by approval of the majority of signatories.

Include a mechanism for tracking progress. Use a tracking mechanism, such as an action item list, and write the tracking mechanism into the MOU. The action item list will coincide with the schedule, and can be used to track tasks, issues, and progress. At the regular meetings, a simple report can be developed that tracks the schedule and identifies outstanding action items and issues.

Include a dispute resolution process. Dispute resolution processes are not often included as part of MOUs, but should be in order to provide a forum for addressing conflicts. There are different approaches to dispute resolution, and each approach may be more or less appropriate for particular agencies or participants. Some MOUs have included a process of escalation up an agency chain to high-level signatories, who are then responsible for making decisions. Others include an arbitration process.

Include documentation procedures. Include and formalize how process will be documented and where documentation would be stored.

IMPLEMENTATION OF MOUs

After the MOU is completed, the following best practices are recommended for successful implementation.

Assign dedicated staff to the project. Assign names in the MOU (not just titles) and a process by which names may be changed. Also identify officials responsible for high-level oversight and decision making by name, and not just office.

Use facilitators and mediators. Identify/hire facilitator or mediator for collaborative group who will assist in development of the MOU. This could be especially helpful in large groups, or in groups where participants have a history of controversy between them. A facilitator/mediator can also be helpful run effective meetings, and create documentation when other participants do not have time.

Commit Resources. In SCE’s MOUs with agencies, they commit to funding agency full time employees that would be dedicated to the project. This can occur in a utility-agency MOU as a separate agreement.

Enable Participation of State Agencies. If necessary, enable (through legislation or otherwise) state agencies to enter into agreements with the agencies of other states to establish consistent technical review standards, provided that such standards are consistent with state law.

Challenges

Some MOUs have had limited effectiveness because they lack functional provisions necessary to move a project forward, such as clear definition or establishment of process, standards, communication provisions, and project schedules. Many MOUs are symbolic, not functional. While a symbolic MOU may be valuable as a formal promise to cooperate in a situation where parties are historically at odds, effective MOUs should be functional and focus on solving the problem or issue at hand.[1]

Development of an MOU can be a time-consuming process and may be considered a barrier in transmission siting processes. In some cases, the development of an MOU (particularly negotiation of the MOU terms) has been viewed as a distraction that prevented the project from moving forward in a timely manner. Development of an MOU can become a goal in and of itself, taking time and resources away from the problem at hand. [1] MOUs may be hindered by the same factors that provide barriers to any collaborative process, including distrust between parties and ineffective process management. Legal issues may prove challenging, particularly for federal and state agencies who are bound by different sets of operating procedures and regulations.

Templates

RAPID MOU Template Transmission.pdf

Examples

Transmission MOUs

MOU Between Nine Federal Agencies Regarding Coordination in Federal Agency Review of Electric Transmission Facilities on Federal Land. Sets procedures for federal agency coordination in review of transmission line projects.

2011 MOU between the BLM and Nevada State Office of Energy. Sets procedures for cooperation between Nevada BLM office and Nevada State office of energy on review of proposed renewable and transmission projects proposed for federal lands managed by BLM. This MOU has successfully improved coordination between the parties by establishing regular meetings and coordination.

2012 MOU Cascade Crossing Transmission Project Cooperating Agencies MOU. “Project Management” type of MOU completed for the Cascade Crossing project. Signatories included federal and state agencies, and Tribes. Sets roles and responsibilities, administrative procedures, and assigns lead agency responsibility according to the 2009 Federal Agency Coordination MOU.

Cultural Resources MOUs and PAs

2012 MOA between the Bureau of Land Management – CA, The U.S. Army Corps of Engineers, San Diego Gas and Electric Company, and the California State Historic Preservation Officer regarding the East County Substation Project in San Diego County, California. Memorandum of Agreement focusing on cultural resources and setting agreements on stipulations designed to take into account the adverse effect of the project on historic properties, provide for mitigation measures to resolve such adverse effects, and comply with Section 106 of the National Historic Preservation Act.

CapX2020 Hampton-Rochester-La Crosse 345 kV Transmission System Improvement Project Final Programmatic Agreement. Programmatic agreement between proponents, state historic preservation offices, and Tribes that sets procedures and guidelines for cultural resource studies.

Example Biological Resources MOUs

2011 MOU between FERC and the U.S. Fish and Wildlife Service regarding implementation of Executive Order 13186 “Responsibilities of Federal Agencies to Protect Migratory Birds.” MOU identifies responsibilities of both parties by minimizing adverse impacts on migratory birds and strengthening migratory bird conservation through collaboration between FERC and the U.S. Fish and Wildlife Service.


General Memorandums of Understanding (MOUs) Information

MOU development provides a forum and opportunity for collaboration and interaction between parties involved in a transmission line or other energy facility siting/permitting process. It can provide formal structure to a process, by accomplishing the following:

  • Defining roles and responsibilities of participants;
  • Establish process for working together;
  • Establish joint goals, agreed-upon principles that can be referred to when parties disagree;
  • Establishing trust between stakeholders;
  • Facilitate understanding between stakeholders;
  • Establishing framework for working across agency boundaries, and formalizing interagency relationships;
  • Establish agreed-upon technical standards and mitigation approaches;
  • Establish funding sources/mitigation fund accounts;
  • Establish a schedule;
  • Establish single environmental review document/procedure; and
  • Establish data exchange process or data sources [1]

One way to foster agreements between federal and state agencies in resource management may be to develop resource-specific MOUs. Resource-specific MOUs may be used as a way to establish a forum for discussion and agreement on resource study approaches. MOUs are recognized in cultural and biological resource circles as Programmatic Agreements (PAs). There are two general types of PAs –

  • Project-Specific PAs describes actions of parties in order to meet environmental compliance responsibilities for a specific project
  • Procedural PAs describe process through which parties will meet compliance responsibilities for agency programs, category of projects, or particular types of resources

Bulk Transmission Specific Information

The types of MOUs most often developed for transmission line projects are interagency “project management” MOUs, which describe how the siting/permitting process will proceed, identifies cooperating agencies, and serves other roles. One of the major roadblocks for interstate transmission development is the fact that resource management practices, study procedures, and data differ across state lines and jurisdictional boundaries. This issue is one that is especially problematic for cultural and biological resources.

Cultural PAs are common in transmission projects. In fact, the BLM is currently drafting PAs for cultural resources for RRTT interstate transmission projects. These PAs may also provide a potentially good outline for biological resource PAs, which are not as common in transmission. Biological PAs appear to be used extensively in transportation projects, as procedural PAs that establish procedures and mitigation strategies for particular types of projects instead of individual project.

In 2009, nine federal agencies signed an MOU regarding coordination in federal agency review of electric transmission facilities on federal lands. The 9-agency MOU sets procedures for federal agency coordination in review of transmission line projects, including establishing a process for selecting lead and federal agencies, which can be very complicated when transmission lines cross multiple jurisdictions and states. The 2009 MOU is provided in a link in the “Examples” section above.




References

  1. 1.0 1.1 1.2 Julia M. Wondolleck, Steven L. Yaffee. 2000. Making Collaboration Work: Lessons from Innovation in Natural Resource Management. 1st Edition. Washington, D.C.: Island Press. 277p.
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