First annual Water Law, Policy and Science Conference

Finding Solutions to Multi-jurisdictional Water Conflicts
March 4-5, 2004

Involve Public in Hard Decisions Regarding Science and Policy, Agency Head Says

by George Green
SNR editorial assistant

When faced with difficult choices surrounding the science and public policy of the Platte River, habitat needs of endangered species, and water for human use, it is crucial to foster public discussion, said Roger Patterson, director of the Nebraska Department of Natural Resources.

"Agencies don’t know everything,” he said.

Patterson spoke at UNL’s first annual Water Law, Policy and Science Conference at the UNL College of Law, March 4 and 5, 2004.

Speakers and panelists in the conference’s final session, “‘Best Available Science’ in Context: The Platte and Missouri Rivers,” highlighted the difficulty of determining when researchers have gathered enough information to allow decision makers to create policy.

Patterson recounted work on the Platte River in 1997 when he was part of a task force that proposed a cooperative, multi-state management program for the Platte River to ensure long-term vitality of the river and its native fish and wildlife. Some affected parties came forward in protest, Patterson said, forcing the committee to negotiate a compromise.

A cause of the dispute, Patterson said, was lack of consensus on the science involved.

In the end, he said, these types of debates come down to balancing enough information, because researchers never have enough, with taking a particular action based on sufficient public input.

In addition to local leaders and national and international experts, several UNL faculty moderated and contributed to discussions on building consensus in multi-jurisdictional water disputes, water scarcity, water marketing and sales, and water as property.

Ed Peters, UNL School of Natural Resources fisheries biologist, built on Patterson’s discussion of Platte River management.

Last year, he said, U.S. Department of Interior requested the National Academy of Sciences and its investigative arm, the National Research Council (NRC), further study the basin to evaluate some aspects of a 1997 cooperative agreement between Nebraska, Colorado and Wyoming about the Platte.

The NRC committee, which Peters was a member of, was charged with studying habitat requirements of threatened or endangered whooping cranes, interior least terns, piping plovers and pallid sturgeon.

"We have concerns about their existence in the river,” Peters said.

Peters said the NRC also asked the committee to examine the validity of in-stream flow recommendations for the river.

Several physical changes have significantly altered the river from its native form, he added. Stream flows and water quality have changed, as have streamside habitats, he said.

"We don’t have the same patterns of flow,” he said.

The 14-member committee included experts in ecology, engineering, hydrology, geomorphology, geography, endangered species law and policy, agriculture and economics.

Outside experts have reviewed the committee report, which is expected to be published soon.

Gerald E. Galloway, vice president of Enterprise Engineering Group, Titan Corporation, Fairfax, VA, participated in a similar NRC committee that studied the Missouri River.

Like the Platte, the Missouri River has been mired in controversy for quite some time, Galloway said.

For more than 15 years, the U.S. Army Corps of Engineers has struggled to create a new set of rules for the operation of its six mainstream Missouri River dams. Five years ago the U.S. Environmental Protection Agency and the Corps requested that the NRC investigate.

"The Missouri River ecosystem is in trouble,” he said.

Policy makers need to get people together who have a stake in the river to discuss the issues, he said. The NRC committee that Galloway served on recommended that the Corps and U.S. Fish and Wildlife Service cooperatively develop a strategy of adaptive management, he said.

In another conference presentation, J.B. Ruhl, professor at Florida State University College of Law, said some researchers and policy makers are over-selling peer review as the solution to scientific data debates.

"Peer review will smother agencies with work,” he said. It is expensive and it fails to acknowledge that scientific data accounts for only part of management decisions. Human needs and desires also influence judgments.

Professor John H. Davidson, University of South Dakota School of Law. offered concluding remarks on the subject, saying that perhaps the most productive way to frame the role of science in these issues is as “a base from which to meet and talk.”

"We must find ways for a more productive debate between science and government,” he said.