Citation: Lamb, B. L., N. Burkardt, and J. G. Taylor, 1998, Negotiation and Decision-Making IN Blazkova, S., Stalnaker, C., Novicky, O., Hydroecological Modelling: Research, Practice, Legislation and Decision-Making: Prague, Czech Republic, T.G. Masaryk Water Research Institute, p. 63-64.
Technical clarity in negotiations over environmental issues involves understanding the science-based aspects of a project, including the professional value judgments that must be made and the technical facts. Technical clarity is achieved when there is agreement on values and facts. Technical values include issues such as the resources influenced by the project and the geographic extent of project effects. Resolving these value questions requires defining the nature and extent of benefits that may be gained from the negotiation. Technical facts include issues such as the level of flow that will provide fish habitat and the timing of flow releases to maximize power production. Resolving the technical fact questions determines distribution of these benefits to each party. To determine the relation between technical clarity and successful negotiations, we studied six consultations conducted under the Federal Energy Regulatory Commission's (FERC) hydropower licensing process. These consultations were undertaken between 1980 and 1989. Although the procedures for FERC consultation became more formal after passage of the Electric Consumers Protection Act of 1986 (ECPA; 16 U.S.C 791 et seq.), the negotiations we studied were typical of most environmental conflicts in that the parties were expected to work out acceptable means to protect fisheries and recreation values without benefit of explicit rules to guide the process or evaluate the solution they reached. The consultation procedures for all the cases we studied required the applicant for a license to consult with state and federal fish and wildlife agencies and to report the results of those consultations to the FERC. The FERC issued licenses for the projects with terms and conditions that usually reflected the results of the consultation (Kerwin 1990). The principal issues in the six cases were fish passage, instream flow releases for fish habitat, and entrainment of fish in hydropower turbines.
These issues are very common in FERC hydropower licensing consultations because hydroelectric projects almost always involve damming a stream, bypassing the stream through a pipe (called a penstock), and dropping the water back into the stream through a turbine that generates electrical power. A hydropower facility can completely block the upstream migration of fish unless suitable facilities for fish passage are included in the project and flow in a bypassed reach of stream can be significantly reduced when water is routed through the penstock to the powerhouse. In some projects, the turbines are incorporated into the dam itself (resulting in no bypassed reach) and in others the bypassed reach can extend for several miles. In addition, when water is directed through the turbines, flow is increased below the powerhouse. This fluctuation in flow can be dramatic, causing damage to the fishery and altering the bed and banks of the stream. Finally, fish that pass through the penstock and turbines can be injured or killed.
How to construct and operate a project so that these effects are minimized is the question at the heart of most FERC hydroelectric license consultations. For example, from 1980 through March of 1983, 59% of hydropower licenses contained special articles governing instream flows (Kerwin 1990). Instream flow conditions were included in 80% of the licenses issued during 1985 (Kerwin and Robinson 1985). Answering the question of how to minimize environmental damage is a technical problem amenable to scientific analysis. Although scientists can analyze the problem, the best course of action is not beyond dispute. As Patterson observed about management of California's Central Valley Project, "This will not be just a technical decision. Any program has to be workable politically" (quoted in Burby 1994:44) Ozawa and Susskind (1985) found that even if specific points are agreed upon in environmental negotiations, it is common to disagree on how to study the problem and how to interpret the results of studies.
We obtained records of 26 hydroelectric power licensing negotiations from field offices of the U.S. Fish and Wildlife Service (FWS). We asked the field office supervisors to select cases they believed to have been successfully resolved. Representatives from these offices were participants in each negotiation and were required to maintain a record of the consultations. Our objective was to follow a most similar system research design (Przeworski and Teune 1970) by selecting the six most similar negotiations for which documentation was available. All the cases involved at least the utility applicant, FWS, and state fish and game agency; were conducted under the same regulatory regime (Kerwin 1990, Bearzi and Wilkerson 1990, Bearzi 1991); and at least dealt with the environmental issues of streamflow, fish passage, and fish entrainment. These environmental concerns were the most common and time consuming issues faced by parties to FERC licensing consultations during the period 1984-1989 (Richard Hunt Associates 1991).
We tape-recorded structured interviews with 48 key individuals who participated in the negotiations. Data were always collected from representatives of the major parties in each dispute, including the FWS, state fish and game agency, and applicant. Respondents were those assigned by their organizations to actually conduct the negotiations. During the interviews, we asked respondents a series of questions to determine how clearly technical issues were defined during the negotiation process. The answers varied from specific examples of how clearly respondents understood the definition and scope of the issues and the required research, to how clearly they understood the resulting data. We also asked respondents to rate technical clarity on a scale from 1 to 10, with 1 meaning the issues were not at all clear and 10 meaning the issues were perfectly clear. During the interviews we traced the history of each case so that changes in technical clarity over the course of the negotiation could be measured. Criteria for determining the clarity of technical issues included: (1) All parties agreed to the definition of the technical issues throughout the process but especially during the stage when final agreement was being forged; and (2) the definition of the technical issues was rated from high to very high (between 7 and 10) by all respondents.
Interviewees were also asked to evaluate the success of each negotiation (Fulton 1992; Burkardt et. al 1995). Our criteria to evaluate success included: the parties recognized that an agreement was reached, the agreement included a plan of implementation and post-construction monitoring, there was a willingness to enter into future negotiations with the same parties, and respondents rated success at more than seven on a ten-point scale (where 1 meant no success and 10 meant fully successful).
The cases we studied varied from fully successful to minimally successful and in how well the technical clarity criteria were met. We concluded that technical clarity was one critical element in the successful resolution of these conflicts. Negotiations tended to be more successful when the parties had worked out an understanding of technical issues and potential research questions before deciding which studies to conduct. Several factors promote technical clarity during negotiations. For example, we found that having a sense of urgency in the negotiation motivated participants to work hard at defining the appropriate technical issues. Conversely, a consultation process that is at once formally required and uncertain in its procedural requirements reduces the sense of urgency. By requiring a negotiation but not spelling out the expectations of the parties, the process left the parties floundering. An understanding of the expectations of regulators helped increase the sense of urgency and promoted effective bargaining.
The combination of the right people in the right places was also extremely important. We found that individual personalities are a significant factor in successful negotiation. Organizations often found themselves represented by persons who were less effective bargainers. In those instances, a great deal of the early negotiation was devoted to dealing with the unskilled person. Sometimes difficulties with individuals are systematic; that is, occasionally people are instructed to obstruct the process. However, most often individuals want to adequately represent their organization. In these situations it is important to choose a negotiator who is more than merely a technical expert. The representative should have a broad perspective and good skills at understanding the work of others. Knowledgeable individuals with well planned objectives and experience in group decision-making are valuable to all sides.
The most successful negotiations we studied focused on two technical elements: Coming to agreement on desirable conditions (goals) and determining how to operate a project to achieve those conditions. In the least successful negotiations, parties attempted to answer the project operation question without resolving their differences over goals. Thus, disagreement over technical issues was a manifestation of underlying differences in approach and philosophy. Achieving technical clarity is difficult. Negotiators often plunged into their task without clearly defining the problem, hoping that a series of studies would illuminate the best course of action (Burkardt et al. 1995). Defining and discussing technical issues and their implications at an early stage may be critical to the ultimate success of a negotiation.
Bearzi, J. A. and W. R. Wilkerson. 1990. Accommodating fish and wildlife interests under the Federal Power Act. Natural Resources and Environment. 4(4):20-58.
Bearzi, J. A. 1991. The delicate balance of power and nonpower interests in the nation's rivers. Rivers. 2(4):326-332.
Burby, J. 1994. Water wizards. Government Executive. 26(11):40-44.
Burkardt, N. B. L. Lamb, and J. G. Taylor. 1995. Technical clarity in inter-agency negotiations: Lessons from four hydropower projects. Water Resources Bulletin. 31(2):187-198.
Fulton, D. C. 1992. Negotiating successful resource management: An analysis of instream flow mitigation decision processes. MS thesis, Program in Environmental Science and Regional Planning, Washington State University, Pullman, WA.
Kerwin, C. M. 1990. Transforming regulation: A case study of hydropower licensing. Public Administration Review. 50(1):91-100.
Kerwin, C. M. and J. M. Robinson. 1985. Report to the Office of Hydropower Licensing. Federal Energy Regulatory Commission, Washington, DC.
Ozawa, C. and L. Susskind. 1985. Mediating Science-Intensive Policy Disputes. Journal of Policy Analysis and Management. 5(1):23-39.
Przeworski, A. and H. Teune, 1970. The Logic of Comparative Social Inquiry. Wiley Interscience, New York, NY.
Richard Hunt Associates. 1991. Lessons Learned in Hydro Relicensing (1984-1989): Trends, Costs, and Recommendations. GS-7324, Research Project 3113-2. Electric Power Research Institute, Palo Alto, CA.