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7/14/2009 5:01:46 PM
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UCREFRP
UCREFRP Catalog Number
7955
Author
Burkardt, N., et al.
Title
Technical Clarity In Inter-Agency Negotiations
USFW Year
1995
USFW - Doc Type
Lessons From Four Hydropower Projects, paper no. 94090 of the Water Resources Bulletin
Copyright Material
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<br />Burkardt, Lamb, Taylor, and Waddle <br /> <br />.. <br /> <br />here. Which is probably trust in our ability to do <br />it. Our insistence on the right of the state to set <br />management goals, exclusive of their desires. <br />That's a [Fish and Game] Commission responsi- <br />bility, and no one else has that authority and <br />responsibility. And their insistence that our <br />goals were not realistic, based on their per spec- <br />tive...That was major. <br /> <br />Even when applicants and resource agencies believed <br />they agreed on the scope of the technical issues, the <br />agreement was not enough to ensure success. <br /> <br />Is Technical Clarity Related to a Sense of Urgency to <br />Reach Agreement? <br /> <br />Clarity of technical issues is but one factor thought <br />to be necessary for success in negotiation. Another <br />variable we investigated was "urgency to reach agree- <br />ment." As with each of the variables, a series of ques- <br />tions was asked of each respondent to evaluate the <br />level of urgency to complete the consultation. The <br />Koma Kulshan case was the only one in which urgen- <br />cy was reported. It was also the only successful nego- <br />tiation and the only case in which the technical issues <br />were clear. <br />During the Koma Kulshan licensing consultations, <br />participants reported a sense of urgency for several <br />reasons. The applicant reported urgency because the <br />utility could not generate power and produce rev- <br />enues until the project was operating. This provided <br />an incentive to maintain momentum in the negotia- <br />tions. Endless haggling over technical issues would <br />not serve the interests of the applicant. For the <br />resource agencies, no compelling reasons existed to <br />stall the project. Given scarce resources and limited <br />personnel, it was in the agencies' best interests to <br />finalize the negotiations once it became clear that the <br />process would eventually move to a conclusion. Com- <br />pletely different dynamics were at work in the other <br />cases. <br />A very obvious difference was that all of the other <br />projects were already operating. Any project retro- <br />fitting required of the utilities would cost the project <br />operators money, in terms of capital expense and, per- <br />haps, reduced generating capacity. It was in the best <br />interests of the utilities to dig in their heels over the <br />technical issues. Even if additional costs were not <br />completely avoided, they could at least be delayed or <br />minimized. In the Ashton-St. Anthony project the <br />license was issued with a number of articles requiring <br />further investigations. Although the utility and the <br />resource agencies were directed to come to agreement, <br />the agencies viewed the project as being of low priori- <br />ty and the utility was able to generate power whether <br /> <br />WATER RESOURCES BULLETIN <br /> <br />or not agreement was reached. Each party had very <br />few incentives to bring the negotiations to a conclu- <br />sion. There was no indication in any of these cases <br />that anyone deliberately muddied the issues in order <br />to stall resolution. However, in the three less success- <br />ful cases, there appeared to be a general lack of moti- <br />vation to pin down and resolve technical issues. <br /> <br />The Importance of "Good Faith" in Negotiation <br /> <br />Another factor that seemed instrumental in deter- <br />mining the eventual outcome of these negotiations <br />was the parties' perception of fairness and good-faith <br />bargaining. In Koma Kulshan, disputes were relative- <br />ly easy to resolve because each party came to believe <br />that others acted in good faith. Disagreements about <br />technical issues were discussed until resolution was <br />reached. There was a realization that different groups <br />were working toward different goals, but a general <br />level of tolerance was apparent. The other cases illus- <br />trate that this is not always true. <br />Despite the fact that all parties in every case indi- <br />cated that they would negotiate with the same group <br />of people in the future, technical issues were <br />approached in ways that alienated some and led to a <br />perception of unfairness. <br />Several incidents typified this phenomenon. During <br />the Cataract consultations, the parties agreed to <br />design a river-wide fish passage plan, which would <br />become part of the FERC license. It was thought that <br />the difficulty of designing such a plan would be offset <br />by time saved in future consultations. After more <br />than a year of discussion, the applicant decided to <br />forego comprehensive river planning, largely because <br />of the failure of a similar plan on the Kennebec River. <br />Resource agencies believed that this action constitut- <br />ed backing down from a previous commitment. The <br />problem was probably intensified by the manner in <br />which the applicant proceeded. From the record, it <br />appears that rather than re-opening the discussions <br />of comprehensive river planning, the applicant simply <br />submitted a document to FERC that agreed to fish <br />passage for the Cataract project but eliminated river- <br />wide planning from the Cataract license. The resource <br />agencies felt that a technical issue was withdrawn <br />from consideration without due process. <br />The problem of the 401 certification for the <br />Cataract project began during the time when compre- <br />hensive river planning was being discussed. After the <br />comment period for the license application expired, <br />the state environmental protection agency realized <br />that no 401 certificate was in place below Cataract <br />darn. The agency attempted to intervene in the pro- <br />cess at that point and was eventually successful. <br />While aH parties agreed that some arrangement was <br /> <br />196 <br />
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