Conflict Resolution in Water Resources: Two 404 General Permits

Abstract

The use of alternative dispute resolution techniques in water resources is demonstrated and experience evaluated against current theory of bargaining and negotiating. Conflicts among environmentalists, developers, and government agencies are well known; they involve planning, constructing, operating, and regulating water resources projects. Two Section 404 permit cases are compared. One in 1980, involves issuing a general permit (GP) for wetland fill on Sanibel Island, Florida. The other, in 1987, involves issuing a GP for hydrocarbon exploration drilling throughout Louisiana and Mississippi. Generally, permits are granted on a case‐by‐case basis, but Corps district engineers may also issue GPs for activities that produce no negative cumulative impacts. In these cases the Corps adopted a revolutionary approach to GPs. Rather than writing the permit in house, the Corps suggested that the parties who conflict over permit applications get together and write the technical specifications for a GP. The Corps told environmentalists, citizens, contractors, industrialists, developers, and representatives of government agencies if they agree to the specifications of a permit within the broad legal constraints of the 404 law, the Corps would confirm the agreement and call it a GP. The price of such an agreement is consensus among the parties normally in conflict over permit applications. In this way the Corps becomes the facilitator of consensus among interested parties by using its authority. The Sanibel permit operated unchallenged for five years, the legal life of such a permit. The Mississippi/Louisiana permit was just issued. These cases both confirm and question some propositions emanating from the fields of negotiating and bargaining.