Collaborative relicensing: a success story

During the first two days of a trade show, I had enjoyed the positive comments about the Clark Fork collaborative. It was an interesting and ‘good news’ hydro relicensing story, and my firm had played a part in that success as consultants for the licensee. By the third day, the trade show, like all trade shows, had lost its fascination, and I was daydreaming about an upcoming trip to Alaska. Suddenly, I was jarred out of my reverie by a pounding fist that was being directed at a copy of a magazine article about the Clark Fork collaborative which rested in the middle of our display. The owner of the fist was a very agitated engineer. Once he decided he had my attention, he began describing what was wrong with the Clark Fork relicensing.

‘This project is nothing but a pig in a poke,’ he blasted, ‘they threw money around like a drunken sailor.’ And making sure he had used all the cliches he learned since childhood, he closed with ‘they gave away the farm and all the animals’.

Responding quickly from my peaceful visions of an Alaskan holiday, I asked my visitor, ‘Do you know much about the Clark Fork projects?’ He knew all he needed to know, he assured me, and he did not have to talk with the licensee to know how bad a deal the Clark Fork relicensing was for the hydro industry. ‘They bought the agreement and set a bad precedent for all the licensees that have to follow the,.’ he said. His reaction, although hopefully not a majority view, represents one end of very polarised opinions regarding this unique collaborative effort and perhaps collaborative efforts in general.

I set out to talk with the man responsible for implementing the ‘collaborative’ licence, Avista Corp’s Tim Swant. I also spoke with Swant’s boss, Bob Anderson; Chip Corsi of Idaho Fish and Game; and Federal Energy Regulatory Commission’s (FERC) west branch chief, Ann Miles. All of these people were actively involved in the relicensing effort and in varying degrees involved with its implementation.

Planning

Owner and operator, Avista Corp, started planning for the relicensing of the Clark Fork projects in 1992. After exploring a variety of options, it decided to avoid the contentious nature of many FERC relicensing proceedings by developing a unique consultation process which became known as the collaborative approach (see relicensing process timeline). This strategy of consultation and consensus building with Clark Fork river stakeholders was aimed at developing protection, mitigation and enhancement (PM&E) measures that would form a comprehensive settlement agreement amongst all stakeholders.

The collaborative process began in mid-1996 when all stakeholders met and developed a consultation process for relicensing. Calling themselves the Clark Fork relicensing team (CFRT), the group included representatives from nearly 40 organisations, including federal and state agencies from Idaho and Montana, five Indian Tribes, non-government organisations, conservation groups, property owners and Avista Corp. The CFRT was organised into five subgroups:

• Fisheries technical work group.

• Water resources technical work group.

• Wildlife, wetlands and botanical technical work group.

• Land use, recreation and aesthetics technical work group.

• Cultural resources management group.

Avista Corp even developed something it calls the ‘living licence’ approach as part of its strategy for relicensing the Clark Fork projects. This approach relies heavily on the concepts of adaptive management which is defined as the process of change—but not random change. In a sense, this approach is action responding to learning. It is in this light that the stakeholders agreed to use an adaptive management approach to reach a licensing agreement and to implement cultural and natural resource PM&E measures for the Clark Fork projects.

Such an approach employs highly refined PM&E measures for natural resources developed through consensus by the CFRT and considered feasible and likely to have a high chance of success. The success of these PM&Es is evaluated by the technical advisory and management committees using monitoring programmes established through the settlement agreement and described in FERC licence articles. Based on the results of the evaluations, the PM&Es will either be fine-tuned to improve them, or new PM&Es will be developed to replace them.

Tim Swant is a native of Wisconsin who, after attending the University of Montana, went to work for the Montana Department of Fish Wildlife & Parks as a fisheries biologist. His association with Avista Corp dates to 1986 when he joined the predecessor company, Washington Water Power, as a natural resource technician. He has been involved in the relicensing effort since its beginning and represented the company in the technical work group negotiations that led to the comprehensive settlement agreement filed with FERC. He is now responsible for implementing the settlement agreement and terms of the new FERC licence.

The collaborative approach

I asked Swant how his view of the collaborative process had changed over time. He said that he had reservations at the beginning but has grown to appreciate how much the process helped stakeholders reach an agreement on licence conditions. ‘Now that we are actually into the implementation of PM&E measures, I think I have become even more appreciative of the collaborative process,’ Swant said. This response is similar to Chip Corsi’s from Idaho Fish and Game. He said he was a little sceptical, like everybody else going into this process, and was not sure how it was going to work but recalls that, ‘pretty early on, a fair amount of trust developed - trust that is still there.’

When I asked Corsi if he was happy with the way the process has worked, he was quick to say yes. ‘I am very pleased with the way it is working out as far as getting things done on the ground that we viewed as high priority. Not only do I not have any real complaints, he said, ‘I have lots of good things to say about it. We’re doing good things that we could not have done without this process.’ By way of example, Corsi says he is working on another relicensing not far downstream that is not really a collaborative but is somewhat semi-modelled around the Avista process. Corsi says: ‘Right now I do not see that process moving anywhere as smoothly as Clark Fork did. It is a smaller project and it is much more like the traditional relicensing.’ He says there has not been anywhere near the level of collaborative thinking and common goals he has seen in the Clark Fork process, and he is convinced that the licensee is going to fight it out with letters and ‘nasty-grams’ to FERC.

Bob Anderson is also pleased with what he has seen so far. ‘What I am the most pleased with is how well the participants are working together, and for the most part they are very conscientiously pursuing implementation. They are being mindful of the funds that are available and are working to stay within the budget that we have established. They have taken a very strong ownership in the process,’ he said.

‘This turned out to be a group of stakeholders that worked very well together,’ said FERC’s Ann Miles. She says she was very impressed at how the group managed to work through some of the issues knowing that they did not start out ‘on the same page.’ Miles reinforces the notion of trust. ‘I think they developed trust and a working relationship that enabled them to work together to carry out the terms of the licence,’ she says. ‘They learned how to work things out amongst themselves.’

I was curious about whether Swant had seen any downside to the collaborative approach when it came to the implementation phase. ‘I haven’t seen any disadvantages,’ he quickly responded, but went on to talk about how he had worried whether changes in personnel amongst the stakeholders would affect the management committee’s ability to implement the conditions of the agreement and the licence.

‘We were afraid we would lose too much history— the knowledge and experience of stakeholders who had worked through the two plus years of consultation,’ he explained. To his relief he found that the management committee (made up of 27 stakeholders) collectively took up the responsibility of mentoring stakeholders and have done a great job of training, nurturing, educating and orienting new members. ‘So instead of Avista Corp trying to educate and establish a new relationship by themselves,’ Swant concluded, ‘we have 25 helpers working together to integrate the new member into the process.’

Fear of the unknown

But why do more FERC licensees not use collaborative approaches? Swant thinks that people do not understand the process and that fear of the unknown scares them. There is a misperception that the process is very open-ended. He also thinks there is an element of the ‘old school’ approach from utilities who would rather fight it out in court than try something new like a collaborative process.

Swant thinks some licensees could not use this process because their relationships with the agencies and other stakeholders have traditionally been argumentative and in conflict. ‘They have dug themselves into such a hole, I am not sure they could ever use this approach,’ he adds. ‘After all, you have to have some level of trust with the agencies and stakeholders to even start the process.’ Corsi reinforces this view. ‘The people that Avista put in charge of making relicensing work were people that inspired trust and confidence, and they empowered the participants to collectively make decisions that they would follow through with. And they are still doing that,’ he said.

Speaking of fears, I have heard concerns that a collaborative process has very little certainty and is very time consuming and expensive. Swant has also heard such concerns but thinks that licensees need to take a hard and realistic look at what they are going to get in any relicensing process. He believes there is as much, if not more, certainty in the licence conditions that were developed through the collaborative, as there is in any other licence. A good example, he argues, is the mandatory conditioning authority of some federal and state agencies, which in essence allows these agencies to dictate terms and conditions that FERC must include in the new licence. We often get asked, ‘Did you get the agencies to give up their mandatory conditioning authorities?’ Swant admits that they did not, but says he also does not know of a licensee who has.

In a traditional relicensing proceeding, agencies can come up with an idea and submit terms and conditions that FERC must include in the new licence. What Swant sees as the inherent advantage to the Clark Fork collaborative is that there is an actively involved management committee that helps keep these agencies from doing something that is not in the best interest of all parties involved. The mandatory conditioning authorities do not disappear in a successful collaborative process, instead they become a transparent and integral part of negotiations and the agreements.

The adaptive approach

Miles feels that the collaborative came up with adaptive management approaches that give them a lot of flexibility to take smaller steps in the beginning; monitor the effectiveness; and adjust and come up with something that really does work for the stakeholders, the project and the basin.

Financial certainty is another issue. ‘People look at Clark Fork and have the impression that we left it wide open financially which is not the case at all,’ Swant says. He explains how all but two of the PM&E measures are capped. The funds and/or annual amounts of money are defined and are agreed to. Swant says they have run up against some of these limits already and it is the management committee members that say ‘we cannot go beyond that dollar limit, it is the budget and that is what we agreed to.’

The two PM&Es that were not capped are fish passage and total dissolved oxygen. Stakeholders were unable to completely resolve these issues at the time of relicensing but Avista Corp was willing to agree to an approach that did not have as much ‘certainty’, particularly with a fixed dollar cap, in an effort not to force the agencies into a situation where they felt they had to mandate a solution. Fish passage is a great example.

‘Had we not negotiated a methodical approach to resolving fish passage we probably would have been required to build a fish passage, whether it worked to pass fish or not,’ Swant says. He recalls the comment of representatives from Idaho Fish and Game who said ‘let’s get this right, even if it takes time, we do not need more monuments to our stupidity,’ referring to installed fish passage devices that do not work. Swant is convinced that taking the time to do it right and using an adaptive management approach is a far more sensible way to go about it.

Responding to the comments about the cost of mitigation for this project, Swant thinks that what people do not understand is that Avista Corp preserved virtually all of the operating flexibility (load following/ peaking) of the two projects. ‘When I look at our settlement costs and compare them with other relicensings in the Northwest, our costs are very much in line,’ says Swant. ‘I think this is one of the most economically licensed plants in the region.’

As far as the notion of the time required by a collaborative approach, Swant thinks that this is one of the biggest misconceptions. He admits the up-front process was time consuming, but says it was really compressed into a relatively short time period, particularly when you look at other relicensing processes in the Pacific Northwest that extend for 5, 10 or even 25 years without being resolved. ‘We are now in the implementation phase, and we have had four management committee meetings since March 1999,’ says Swant. He points out that none of these meetings have run more than half a day in length, which means they approved everything they needed to implement the settlement agreement for the first two years in less than two full days.

‘I do not think folks understand how well this process can work,’ Swant says. He encourages people to sit in on a management committee meeting to see for themselves. ‘Do not take my word for it,’ he says, ‘talk with other stakeholders, state and federal agencies, tribal representatives and non-government agencies such as Trout Unlimited.’ He is convinced if people really take the time to understand how it works, instead of just saying it will not work, more people would choose a collaborative process. It amazes him how smoothly most of this process continues to work.

Bob Anderson feels that the tremendous success of the Clark Fork relicensing gives people both within and outside the company a great sense of pride and accomplishment. ‘The success of the Clark Fork relicensing translates into confidence with the implementation process. When our biologists come to Spokane (Avista Corp’s headquarters) and make presentations, it is very clear to our management that our people have a good handle on the process, they are on top of things and they are really running the programme well.’