7955

• 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: YES

Burkardt, Lamb, Taylor, and Waddle

The original license was issued in 1977 with an effec-
tive date of January 1938. The renewal license was
issued in August of 1987, effective January 1, 1988.
Included in the license were five articles (Articles 401-
405) pertaining to fish passage, fishery and wildlife
enhancement, and turbine mortality. Thus, most of
the substantive negotiations associated with this pro-
ject took place after the license was issued. Because
only general agreements on each of these issues were
reached before the application was submitted, the
post-license negotiations were protracted and diffi-
cult.
The shape of this consultation was determined by
FERC's procedures before the passage of ECPA. Cur-
rently, parties are urged to reach agreement before
submitting the application. If they are unable to
agree, FERC makes a decision on unresolved issues,
rather than presenting the parties with a list of items
to resolve.
The negotiations associated with re-licensing the
Ashton-St. Anthony project were minimally success-
ful. When parties were asked to rate the agreement
on our ten-point scale, the range was three to eight
with an average of 5.5. Respondents qualified their
responses with the reminder that only parts of the
agreement had been finalized. The most influential
factor in determining the level of success of this nego-
tiation is that when the interviews were conducted,
nine years after license issuance, no final agreement
had been reached.
Participants' ratings of the clarity of technical
issues varied widely and changed throughout the
course of the consultation. Early in the process, more
than one applicant intended to file an application to
build a project on the site. Thus, the successful appli-
cant attempted to eliminate potential roadblocks by
simplifying the technical issues. Later, as competition
for the site diminished and it became apparent that
the project would move forward, disagreement on
technical issues intensified. At this point, the parties
negotiated about what studies to conduct but neglect-
ed discussions of interpreting study results. Thus,
technical issues were clear only to the extent that
parties agreed on what to study.
Early in the consultation, the state resource agency
defined the issues to be addressed. First, the agency
stated that historic flow releases from the project
should not be altered by agreements in the new
license. Second, because 3.5 miles of free flowing
riverine habitat had been inundated by the Ashton
development, mitigation was needed for lost wildlife
benefits. Third, fishery production was much lower in
the Ashton Reservoir than in nearby impoundments,
and studies were necessary to determine how to make
the reservoir more productive. Fourth, there was con-
cern over raptor protection on powerlines. Finally, fish

WATER RESOURCES BULLETIN

passage at the St. Anthony dam and screens to pre-
vent entrainment at the Egin Canal were requested.
In October of 1984, the utility responded with the
following proposals: (1) fencing along eight miles of
utility-owned property to prevent grazing by cattle,
and experimental planting to restore a riparian zone;
(2) construction of goose nesting structures; (3) con-
struction of raptor perches and Osprey nesting sites;
(4) preservation easements on an emergent wetlands
complex near the development; and (5) monitoring
through inspection visits and supervision by a quali-
fied biologist. Fish passage and fish screening were
not mentioned. Two months later, the application was
filed with the FERC.
The following April, the utility and the state
resource agency agreed that the utility would fund a
two-year study of Ashton Reservoir to evaluate the
existing aquatic resources, introduce several species
of cutthroat trout, and monitor the survival and catch
rate of the introduced species. According to represen-
tatives of the applicant, part of the agreement was
that after joint review of study results, conclusions
would be forwarded to FERC in the form of recom-
mendations. However, after one meeting in which the
state resource agency presented preliminary findings,
a study report was sent directly to the FERC by the
resource agency. The applicant did not agree with the
report's conclusions and was unhappy that species
other than cutthroat trout were studied. These
actions were taken by the applicant as signs of bad
faith.
In May of 1985, the project received Section 401
certification from the state of Idaho. In 1986, the
Environmental Assessment (EA) for the project was
completed. The EA recommended several measures
for mitigation of fish and wildlife impacts, including
fish passage and fish screening. The assessment con-
cluded that project construction and operation would
not contribute to adverse cumulative impacts in the
Henry's Fork River Basin and recommended relicens-
ing the project.
During the period from early 1986 through mid-
1987, the applicant and the agencies attempted to
reach agreement on how to address the technical
issues. A recurring issue was that of fish entrain-
ment. The resource agencies suggested screening the
St. Anthony development to prevent entrainment,
while the applicant argued for the alternative of
replacing lost wild fish with hatchery fish. At the
heart of this disagreement was the belief of the utility
that few fish actually inhabited the canal. Another
unresolved issue was fish passage. The resource agen-
cies stated a need for fish passage over the diversion
dam. The applicant balked at this proposal on the
grounds that few fish would utilize the fish passage
facility. The arguments at this point centered on the

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