Memorandums of Understanding (MOUs) for Interstate Transmission Projects
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. Also provided is a template for an MOU for interstate transmission lines that follows the 2009 MOU between XYZ. 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
The types of MOUs most often found in transmission line project are interagency “project management” MOUs, which describes how the siting/permitting process will proceed, identifies cooperating agencies, and serves other roles. But one of the major roadblocks to interstate transmission is the fact that resource management practices, study procedures, and data differ across state lines and jurisdictional boundaries. This issue that is especially problematic for cultural and biological resources.
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
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 templates, 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.
MOU Benefits and Challenges
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.
Some MOUs, however, 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 in a situation where parties are historically at odds as a formal promise to cooperate, effective MOUs should be functional and focus on solving the problem or issue at hand.
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 move 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. 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 .
Best Practice Recommendations - 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.
Best Practice Recommendations – 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. This meeting creates a forum for addressing issue, and has been key for Nevada’s success in collaboration with the BLM.
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 track action items, issues, and progress. At the regular meetings, a simple report can be developed that tracks the schedule, and identifies 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 different approaches 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.
Best Practice Recommendations – 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 by name, and not just office.
Use facilitators and mediators. Identify/hire facilitator or mediator for collaborative group who will develop MOU. This could be especially helpful in large groups, or in groups where participants have a history of controversy between them. In these cases it may be useful to bring in a facilitator/mediator as the MOU is being developed, to help 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 FTEs 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.
An MOU template is provided below in Microsoft Word format. Brackets  are used to indicate fields that should be filled in with specific information for individual projects. The goal of providing an MOU template is to expedite initial steps in developing MOUs by providing standard sections/paragraphs in a format that can be easily edited.
For the standard project management template we reviewed a number of transmission templates, and selected the Cascade Crossing MOU as the base template. This MOU incorporated major sections, many BMPs, and used the 2009 Transmission 9-Federal Agency MOU as the basis for Lead Agency selection.