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Technical Clarity in Inter-Agency Negotiations: Lessons From Four Hydropower Projects Clean Water Act (Federal Water Pollution Control Act; 33 U.S.C. ~ 1251-1376). The FERC post-dated the license to include the 401 Water Quality Certification so that conditions of the certification were included in the FERC license. At the time of our interviews, in July of 1992, the applicant was contesting this action. The negotiations associated with re-licensing the Cataract project were considered minimally success- ful because of those unresolved issues. During the first phase of the Cataract negotiation, several general areas of agreement existed..AlI par- ties agreed on the need for aquatic base flows throughout the project area, the desirability of design- ing a comprehensive river plan, and the need for fish passage. Parties did not agree about the geographic extent of salmon restoration efforts or the need for determining minimum flows below Cataract darn to protect the estuary below the darn. Disagreements also surfaced about appropriate timetables for con- structing fish passages. When asked to rate the clari- ty of the technical issues at this time, respondents rated clarity between six and eight on a ten-point scale. In the second phase, some of the earlier issues were clarified, but other issues were raised. For example, the effect of the project on the estuary was recognized as an important potential impact, while the fish pas- sage issue was clarified because parties reached agreement on how to approach the problem. When discussing the consultation process in terms of its ability to define and resolve issues, the following interchange occurred: Q: Once established, during that first phase, was the understanding of what the technical issues were, ever lost? A: I think what the consultation does, and cer- tainly what it did in Cataract, is, it better defines [issues]. As we went through this pro- cess, we better defined maintenance drawdown as a potential habitat concern. Better defined certain fish passage issues. So I don't think any- thing was lost, just better defined, which is the goal of that process. While some issues were clarified as the process moved forward, others became muddier or were dropped altogether. For example, earlier discussions about a comprehensive river plan were discontinued so that, rather than studying the Saco River as a whole, only the portion of the river affected by the Cataract project was considered. The applicant had attempted comprehensive river planning on another river, but the plan was never implemented. Thus, there was reluctance to repeat this costly exercise. The subsequent exclusion of comprehensive planning for the Saco River effectively limited the scope of the issues in a way that was unsatisfactory to some par- ticipants. The question was not one of clarity. The issues were clear, but not all parties agreed with the scope and definition. A more controversial issue that arose during the second phase concerned the lack of a Section 401 Water Quality Certificate for waste discharges of the cities of Biddeford and Saco below Cataract Darn. During the course of the consultations, the state agen- cy realized that although the discharges had been occurring for a number of years, no minimum flow agreements were in place. The state agency requested that project operators release flows to assimilate the discharges and planned to make these flow releases part of the license. However, the operators replied that because the darn was built first, the utility had no responsibility to provide present or future assim- ilative capacity. The position of the utility was that the problem was due to the state's mistake and that the state had no authority to require assimilative releases from the utility. Ultimately, the utility entered into agreements with both cities to provide this capacity. The applicant stated that the attempt to include this issue at the eleventh hour detracted from technical clarity; the resource agency believed that addressing this issue led to increased technical clari- ty. At the heart of the debate was whether the issue of flows below the Cataract darn was properly included as part of the license consultation, even though it was clear that diluting the waste stream was a legitimate issue. The disagreement about the state's authority to require 401 certification as a license condition carried over into the post-license phase and was still alive at the time of our interviews. In the final phase, the applicant stated that the clarity of the technical issues dropped, largely due to the lack of resolution on the minimum flow issue below Cataract darn. Dur- ing this phase, the applicant rated the clarity of tech- nical issues at three on a ten-point scale. All other participants gave ratings between eight and ten. Flow-related questions are usually central in con- sultations of this kind. Debates tend to focus on selec- tion of or choice of methodologies and interpretation of study results. From the outset of the Cataract con- sultation, agencies and the applicant agreed to study fish passage. The more intense discussions carne later, when decisions were made about how to provide fish passage and how to monitor the results. Ashton-St. Anthony The Ashton-St. Anthony project is located on the Henry's Fork of the Snake River in eastern Idaho. 191 WATER RESOURCES BULLETIN