7928

• UCREFRP Catalog Number: 7928
• Author: Lamb, B. L., N. Burkardt and J. G. Taylor
• Title: The Importance Of Defining Technical Issues In Inter-Agency Environmental Negotiations
• USFW Year: n.d.
• USFW - Doc Type: 13
• Copyright Material: YES

Located in a remote area on the Sandy and
Sulphur Creeks in the State of Washington, the
project consisted of a water diversion structure and
a penstock transferring water to a power generating
station. The technical problems in this project
proved amenable to resolution. For example, the
proposed site for the penstock was occupied by a
plant on the State of Washington's list of threatened
species. Because an alternative site was available
the penstock could be built at a second location.
Another problem entailed the effects on trout of
altered streamflow in the two streams. Although
the parties differed regarding the methods to
investigate these impacts, the problem was tractable
because so few fish were found in the streams.
Finally, the major technical sticking point proved to
be sediment transport. As a result of the effective
working relationship that had developed over
several years of negotiation, the parties were able
to develop a means to resolve this issue.
Numerical ratings indicated that by the time the
consultation ended, all the respondents considered
the issues to be clear.
We found that the negotiations over Koma
Kulshan were successful. All parties believed that
a successful agreement was reached. Eight of the
ten parties stated that the final agreement contained
provisions for monitoring, other parties did not
recall. Each interviewee reported a willingness to
negotiate again. Success scores range from 5-10
with 8 of the 10 respondents rating success at 7 or
higher.
Oswegatchie Proiect
The Oswegatchie River Project in New
York encompasses six dams located on a seventy
mile stretch of river. The project consists of a
series of power stations and penstocks that bypass
the natural river channel. The principal issue in
this negotiation was streamflow in the bypassed
reaches. An understanding of the scope and effect
of this issue was shared by the parties and was
believed to be the only important technical issue.
The parties were able to reach agreement on all but
one of the bypassed reaches. On this one reach
they submitted differing recommendations to the
FERC, and FERC made the final decision. One
respondent recalled:
I think [the technical issue] was
pretty well defined. The issue
was flows in selected riverine
reaches. And there's no question,
we all knew what the issue was; I
think it stayed focused. It didn't
waiver, which was unique. But, of
course, this was intended to be
sort of a one issue consultation.
Although the question of appropriate flows
in the contested bypass reach was clear in the sense
that everyone knew that flows in that reach were a
stumbling block to agreement, the parties struggled
over the conduct and interpretation of studies to
assess the effects of altered flows. The struggles
among the parties reflected strongly held
differences in goals for operation of the project;
some parties sought to maximize generation
efficiencies while others attempted to maximize
instream benefits. Conflicts that manifested as
technical differences were actually a reluctance to
compromise closely held values. The question of
flows in the last stream reach remained intractable
because there were no identifiable physical
alternatives. Moreover, each party believed it
would prevail when the issue was elevated to the
FERC. In an effort to bolster its position late in
the consultation, the state sought another
mechanism to impose its instream flow requirement
on the other parties. One mechanism available to
the state was section 401 of the Federal Clean
Water Act. Under that section, the state is required
to issue a water quality certificate indicating
whether the project as planned would violate state
water quality standards. If a state finds that water
quality standards would be violated, it may include
provisions in, the certificate to protect water quality.
The FERC must follow the requirements in a
state's section 401 certificate. In this case, the
state included an instream flow requirement in its
certification and the utility protested that action.
Numerical scores for technical clarity were high
with a mean overall score of 8. This high score
reflects the parties' understanding of the nature of
the impasse.
We judged the negotiation to be minimally
successful. Agreement was not reached on all
points: The state section 401 water quality
certification and instream flows were unresolved
and the FERC order was contested. Implementation
was not a major issue in the negotiation but
monitoring was included in FERC order.