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<br />VOL. 31, NO.2
<br />
<br />WATER RESOURCES BULLETIN
<br />AMERICAN WATER RESOURCES ASSOCIATION
<br />
<br />APRIL 1995
<br />
<br />
<br />2J;(6,( ')
<br />
<br />TECHNICAL CLARITY IN INTER-AGENCY NEGOTIATIONS:
<br />LESSONS FROM FOUR HYDROPOWER PROJECTSl
<br />
<br />Nina Burkardt, Berton Lee Lamb, Jonathan G. Taylor, and Terry J. Waddle2
<br />
<br />'..i-:
<br />
<br />ABSTRACT: We investigated the effect of technical clarity on suc-
<br />cess in multi-party negotiations in the Federal Energy Regulatory
<br />Commission (FERC) licensing process. Technical clarity is the
<br />shared understanding of dimensions such as the geographic extent
<br />of the project, range of flows to be considered, important species
<br />and life stages, and variety of water uses considered. The results of
<br />four hydropower licensing consultations are reported. Key partici-
<br />pants were interviewed to ascertain the level of technical clarity
<br />present during the consultations and the degree to which the con-
<br />sultations were successful. Technical clarity appears to be a prereq-
<br />uisite for successful outcomes. Factors that enhance technical
<br />clarity include simple project design, new rather than existing pro-
<br />jects, precise definition of issues, a sense of urgency to reach agree-
<br />ment, a sense of fairness among participants, and consistency in
<br />participation. Negotiators should not neglect the critical pre-negoti-
<br />ation steps of defining technical issues and determining appropri-
<br />ate studies, deciding how to interpret studies, and agreeing on
<br />responses to study results.
<br />(KEY TERMS: water policy/regulation/decision making; water
<br />development; water law; water resources planning; water manage-
<br />ment; instream flows; conflict resolution.)
<br />
<br />INTRODUCTION
<br />
<br />The Federal Energy Regulatory Commission
<br />(FERC) issues operating licenses for non-federal
<br />hydroelectric power facilities. The process of granting
<br />these licenses involves consultations between license
<br />applicants and parties representing affected
<br />resources. The consultations typically revolve around
<br />issues such as minimum flow releases, habitat protec-
<br />tion, and appropriate mitigation measures. Partici-
<br />pants in the consultations may include state and
<br />federal fish and wildlife managers, project applicants
<br />and their consultants, representatives of public inter-
<br />est groups, and tribal representatives. Resource
<br />
<br />agencies are charged with the ,protection ,of fish":a.nd
<br />wildlife resources, and their goa] is to continue t<r~TO-
<br />vide the highest possible level of protection. Appli-
<br />cants are expected to provide power to customers at
<br />the lowest possible rates. This means completing pro-
<br />jects with few delays and few add-on costs, because
<br />ultimately the consumer will be asked to compensate
<br />the power company for all expenses. Because these
<br />goals are sometimes incompatible, the negotiations
<br />associated with FERC licensing and re-licensing can
<br />be contentious. The FERC has the final word on each
<br />license and must balance conflicting interests when
<br />drawing up the conditions of the license. However,
<br />parties are encouraged to resolve as many differences
<br />as possible during the consultation process.
<br />Negotiations are means of distributing gains and
<br />losses. Scientific evidence can sometimes quantify
<br />gains and losses so that parties to a negotiation can
<br />reach equitable agreements. But if no initial agree-
<br />ment is reached on how to measure the gains and
<br />losses, a dispute may well become intractable.
<br />Although it may appear obvious that parties to a dis-
<br />pute should decide exactly what the problem is before
<br />attempting to solve it, those involved in negotiationS
<br />often neglect to discuss, beforehand, the specific
<br />points that must be reconciled. Even if the specific
<br />points are agreed upon, it is common to disagree on
<br />how to study the problem or how to interpret studies
<br />after they are conducted (Ozawa and Susskind, 1985).
<br />The FERC licensing consultations we studied
<br />revolved around reaching agreement on technical
<br />issues, such as the geographic extent of the project,
<br />range offlows to be considered, important species and
<br />life stages, and variety of water uses to be included in
<br />any assessments. Without resolution of these issues,
<br />
<br />lPaper No. 94090 ofthe Water Resources Bulletin. Discussions are open until December 1, 1995. " .
<br />2Respectively, Johnson Controls World Services, Inc., 4512 McMurry Avenue, Fort Collins, Colorado 80525-3400; and NatIOnal BIOlOgical
<br />Service, Midcontinent Ecological Science Center, 4512 McMurry Ave, Fort Collins, Colorado 80525-3400.
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<br />WATER RESOURCES BULLETIN
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