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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 />plant on the state's threatened species list was found <br />in the path of a pipeline; this necessitated design <br />changes in the project. <br />Although the Koma Kulshan consultation was suc- <br />cessful, agreement on the definition of issues did not <br />guarantee agreement on means of resolving the <br />issues. While the parties concurred that in stream <br />flows were a central issue in the consultation, they <br />disagreed over target species and appropriate <br />methodology for determining flow levels. <br />Applicants and resource agency representatives <br />had different forms of expertise and tended to elevate <br />the importance of their special training and knowl- <br />edge. Applicants questioned the ability of the resource <br />agencies to understand the engineering aspects of the <br />project, while resource agencies stated that their <br />interpretation of biological studies was, essentially, <br />infallible. These attitudes seemed to lead to increased <br />conflict in the consultation. <br /> <br />Oswegatchie <br /> <br />The Oswegatchie project in New York includes six <br />dams on a section of river stretching over more than <br />70 miles. Originally licensed in the 1920s, the project <br />received a renewal license in 1983. Included in the <br />license was a requirement for consultation between <br />the power company and resource agencies in order to <br />determine minimum flow releases. After two years of <br />non-action, the power company requested that it be <br />relieved of its obligations to consult on grounds of <br />non-compliance by the resource agencies. FERC <br />denied the request, and consultations were reinstat- <br />ed. From 1986 to 1989, studies were conducted and <br />agreement was reached on all issues except minimum <br />flow releases in one bypass reach. Conflicting recom- <br />mendations were submitted to FERC, and the order <br />issuing minimum flows upheld the recommendations <br />of the power company. State and federal resource <br />agencies objected, and the state suggested re-evaluat- <br />ing the 401 Water Quality Certificate, required under <br />the Clean Water Act (Federal Water Pollution Control <br />Act; 33 U.S.C. ~ 1251-1376). The grounds for the <br />objection were that project operation would signifi- <br />cantly alter stream conditions and that higher flows <br />would be needed for waste assimilation. At the time <br />the interviews were conducted, in July of 1992, these <br />issues had not yet been resolved. <br />The negotiations associated with this project were <br />assessed as minimally successful. As a result of the <br />two outstanding issues discussed above, not all par- <br />ties believed that the negotiation was successful. The <br />other two criteria for successful agreement were met. <br />The Oswegatchie project was complex in that it <br />included six dams stretching over 70 miles. However, <br /> <br />WATER RESOURCES BULLETIN <br /> <br />the consultations themselves were single-issue, focus- <br />ing on streamflows in bypass and downstream reach- <br />es. When parties were asked about the clarity of <br />technical issues, a typical reply was: <br /> <br />I think it [the technical issue] was pretty well <br />defined. The issue was flows in selected riverine <br />reaches. And there's no question, we all knew <br />what the issue was; I think it stayed focused. It <br />didn't waiver, which was unique. But, of course, <br />this was intended to be sort of a one issue con- <br />sultation. <br /> <br />While the issue was clear to all, no agreement was <br />reached on appropriate flows in all reaches. One <br />resource agency representative attributed the failure <br />to reach agreement to a lack of consensus on how to <br />design and interpret studies. A representative of the <br />applicant reflected that the difference in goals <br />between project operators and resource agencies was <br />at the heart of the problem when decisions could not <br />be made. Despite the expectations of some that the <br />simplicity of the issues would be reflected in a <br />straightforward resolution, no agreement was <br />reached. The applicant believed that maintaining a <br />winter flow of 15 cubic feet per second in the contest- <br />ed reach of river was reasonable, and the resource <br />agencies recommended a 30 cfs flow. Unable to reach <br />agreement on this issue, each provided a separate rec- <br />ommendation to the FERC. <br /> <br />Cataract <br /> <br />The Cataract project in Maine consists of four <br />dams. The original license was issued in 1968, back- <br />dated to the operating date of 1938, and expired at <br />the end of 1987. The power company initiated the 60- <br />day consultation process in June of 1984, received <br />comments from agencies and other affected groups, <br />and submitted the license application to FERC in <br />July of 1986. In order to comply with the Electrieal <br />Consumers Protection Act of 1986 (ECPA), which <br />changed the requirements of the consultation process, <br />FERC returned the application to the applicant with <br />a request for further consultation with resource agen- <br />cies. After consultation on issues of minimum flows, <br />fish passage, resource impacts, and public access, the <br />application was revised and returned to the FERC in <br />January 1989. The license was issued in June of that <br />year but was not satisfactory to fishery resource agen- <br />cies because it did not resolve issues of river-wide fish <br />passage. The state also intervened on the grounds <br />that the license did not stipulate flows below the <br />Cataract dam adequate to satisfy terms of the Section <br />401 Water Quality Certification required under the <br /> <br />190 <br />
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