Bracewell Team Advises on Massive Mitigation Deal

Bracewell’s Jason Hutt spoke with The Texas Lawbook’s Caroline Evans about the firm’s role in representing Houston-based environmental mitigation specialist RES in providing restoration services in connection with the removal of four dams on the Klamath River.

Hutt said it was his first time working with RES, though he added he has worked “across from them” multiple times.

“That’s obviously, I think, a nice compliment when someone who sat across the table from you turns around and engages you to help them accomplish their business objectives,” Hutt told The Lawbook. Partner Hans Dyke and associate Joshua Robichaud were also on the team assisting RES in the restoration contract.

The project’s main goal is to reopen access to more than 400 miles of historical anadromous fish habitat, including critical spawning areas. To achieve that goal, the restoration contract covers the design, construction, and long-term management of 18,000 feet of high-priority tributaries. It also includes revegetation of 2,200 acres of new ground set to be exposed once reservoirs behind the dams are drawn down.

Under a typical fixed-price contract, Hutt explained, a “finite universe of tasks” are completed allowing parties to determine a price. There are usually provisions for change orders if changes need to be made.

“In this case, we had to develop a fixed-price contract for an unknown set of tasks, where the certainty associated with those tasks is unknown,” Hutt said.

Hutt added that he had previously seen progressive design structures in the construction industry, but the Klamath River restoration scheme was the first time he had seen it used in the environmental realm.

“That’s what’s kind of exciting about this, where you’re using a concept that’s been used elsewhere, but the way it manifests itself in an ecosystem restoration is totally different,” he said. “And you have to think how that needs to adjust the way that the parties contract with one another to get it done.”

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