Agreeing Not to Disagree:Preparing MOAs

Addressing Adverse Effects in a Somewhat Civilized Manner

Why do we need a Memorandum of Agreement?

The days of “gentlemen’s (or gentleperson’s) agreement” is long gone!

The MOA is a legally binding document prepared by the consulting parties to mitigate adverse effects.

The MOA provides a specific formula for addressing effects, providing the who, how, where, and when.

Dr. Robert’s and Dr. King’s Helpful Hints for Writing an MOA

Make the document clear, concise, and readable; avoid vague terms and too much jargon—you don’t know who will be interpreting this after you get that dream job in Timbuktu.

Don’t rely on standard language (the problem with using “boilerplate”); say what needs to be said.

Hints continued . . .

Make explicit all details about the undertaking, including all activities and specific dates.

Make the flow of the document logical; don’t skip from topic to topic.

No “side agreements”—everything that has been agreed to by the consulting parties should be in the MOA.

Even further hints. . .

Think about the future. Write your MOA as if you expected every consulting party involved in its development will be killed in a plane crash after it is signed!

Include all statutory and regulatory authorities (cite the specific laws by section, subsection, etc.).

Never assume that something will be done because it is proper—specify everything.

Yes, yes, I know. . .

Define terms, and clarify acronyms (Finding of No Significant Impact = FONSI).

Do not use words like “avoid,” “may,” “should,” “if feasible,” or “if funds permit.”

Allow for dispute resolution. Always provide means for monitoring

performance. Always add a “sunset clause.”

MOA Standard Format

Identification of undertaking, consulting parties, and statutory authorities.

Stipulations: impact avoidance, minimizing impacts, rectifying impacts, eliminating impacts, marketing, moving, storing collections, disposition of human remains, compensating for impacts.

Administrative stipulations (monitoring, reports, qualifications, sunsetting, information control, etc.).

Signature page for signatories and concurring parties.