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Burkardt, Lamb, Taylor, and Waddle This sort of pre-construction data collection never occurred with the projects applying for renewal licens- es. Thus, agencies and applicants could only speculate about pre-project conditions. Some resource agencies representatives commented that they viewed the re- license process as an opportunity to mitigate for past losses. A resource agency representative for one of the projects stated: I quickly adopted the philosophy that the reser- voir had never been mitigated, or it was a non- functional fishery supported totally by catchables. The catch rate was extremely low relative to what the river would have provid- ed...They [the utility] had an obligation to miti- gate for that fishery... [We] looked at that historical information on catch rates in the river above and below there, and concluded that the mitigation goals should be equivalent to the fish- ery in the river, that was provided by the natural fish. This is where many disagreements about the proper boundaries of the technical issues arose. Resource agencies believed it reasonable to attempt to restore to, or mitigate for, lost historic resource conditions. Applicants tended to take the view that license nego- tiations should be limited to protection of existing resources. Lack of understanding was often amplified by the fact that these two positions were never explic- itly expressed, leading each party to conclude that the other was unreasonable. The Effect of the Changing Rules of Hydropower Licensing The Electrical Consumer's Protection Act of 1986 (ECPA) amended the Federal Power Act of 1920 (16 U.S.C. 791-828c) and changed the rules of hydropower licensing by placing greater emphasis on balancing the need for power generation with environmental protection. This effectively broadened the scope of legitimate technical issues in FERC licensing consul- tations. Because of this, resource protection agencies are able to pursue their goals with more persistence than in the past. The rules of ECPA require FERC to give "equal consideration" to power and non-power benefits, and this means that project applicants and resource agencies are bound to gather and. present whatever data they deem necessary for the FERC to make a balanced decision. As more projects pass through the licensing process under ECPA, it might be expected that some consensus will be reached as to what is included under "equal consideration" and what technical issues must be addressed to ensure WATER RESOURCES BULLETIN that parties are in compliance with ECPA, but in these cases there was no such consensus. Although formally concluded after passage of ECPA, the negotiations for Koma Kulshan were essentially completed before passage of the Act. Fed- eral and state resource agencies participated in the consultation process in accordance with the Fish and Wildlife Coordination Act of 1934 (16 U.S.C. 661 et seq.). The FERC conducted an Environmental Assess- ment for the project, as required by the National Environmental Policy Act of 1969 (NEPA, 42 U.S.C. 4321-4370). Using these familiar avenues for project consultations, parties were cast in comfortable and well-understood roles. The rules were known, and how issues would be addressed was well-defined. Not only were the issues somewhat simple, but also there was little disagreement over what they were because the process that had defined them in the past was still in place. Each of the other projects was affected by passage of ECPA. In the Cataract case, active consultations were forced to change track when ECPNs rules took effect. The applicant submitted an application to FERC, which was returned with a request for addi- tional resource agency input. The other two cases, Oswegatchie and Ashton-St.Anthony, began consulta- tions before ECPA, but the Act came into effect during the proceedings. Although participants were not ques- tioned about the effect of procedural requirements, it appears that the need to comply with ECPA may well have created an atmosphere of uncertainty about what technical issues were properly addressed. One resource agency representative reflected on this: [l]t was one of the first relicensings under that new set of rules, and we were really trying to fig- ure out how we're going to respond. And a lot of what happened here is how we have handled future relicensing activities. The Importance of Precise Definitions In several consultations, problems in achieving technical clarity arose because parties were unclear about the definition of the problem. For example, in the early stages of the Koma Kulshan negotiations, resource agencies requested a cumulative impact assessment, without specifying what would be includ- ed in such an assessment. Only after lengthy discus- sions did it become clear that the issue of concern was sedimentation due to project operations. Once this was identified, appropriate studies were agreed to and the problem was resolved. Because the negotia- tions were generally cooperative and all parties wished for an expedient resolution, participants were 194