Innovative Strategies for ESA Species Management: Promises & Pitfalls

by Mary Katherine Ray, Chapter Wildlife Chair

The recent Tenth Circuit ruling voiding a decade of litigation challenging A federal agencies' ESA approach well illustrates (see article this page), often process can overwhelm substance when it comes to species management. Not only can technical legal issues swamp more philosophical disagreements over land and water use priorities or the best methods for helping an endangered species like the Rio Grande silvery minnow recover from the verge of extinction, but politics among regional "stakeholders" can often drown out sound science.

This inherent procedural complexity and conflict by explains why the most attractive recent innovation in ESA administration is "adaptive management."

Adaptive Management & Recovery Actions
The Department of the Interior describes adaptive management as "learning by doing," which promises to avoid the hard edges of a regime of specifically prescribed actions, bound to produce conflict where various interests expect or hope to maximize their own use of a limited resource...of which water is a prime example. Under the ESA, a federal agency proposing an "action"—such as licensing a dam or managing river operations, as the U.S. Bureau of Reclamation does in part for the Middle Rio Grande—must "consult" with the U.S. Fish and Wildlife Service over impacts to endangered species, and the Service produces a document, called a Biological Opinion, which prescribes modifications to the proposed agency action when these are necessary to avoid "jeopardy" to the species' survival and recovery.

It stands to reason that stakeholders with an interest in avoiding prescriptions impairing their use of the resource in question—a curtailment of water diversions, for example—will find adaptive management appealing in concept, because it suggests a softer landing; if a particular prescriptive measure isn't "working" for the species, often perceived in terms of the most influential stakeholders' consent, then an adaptive management program will simply try something else.

But conceived this way, this is not really adaptive management, it is what one writer calls "a-m lite":a vague promise of future adjustments without clear standards, which can be popular with powerful interests seeking to avoid resource reallocations, but is often too empty of scientific content to meet the rigorous legal and scientific standards of the ESA. What adaptive management should be, to be effective, is a specifically targeted testing of management hypotheses, with pre-planned proposals for adjustments in management experiments and, most importantly for environmental legal challenges, a mandatory safety net of species protective actions when these experiments prove unexpectedly ineffective. The same commentator pointed to two California court cases (involving the troubled "Bay/Delta" ecosystem), one approving an adaptive management plan, the other rejecting it, because the first provided "reasonable certainty" of salmon species protections by way of definite, substantive criteria serving as triggers for management revisions, while the second, for the Delta smelt, failed to provide enforceable, precise criteria binding project operators in the event of experimental failure. The smelt adaptive management plan was impressive in terms of procedural elaborations, but did not assure substantive actions would be taken to assure the continued existence of the species. This, in a nutshell, is the legal deficiency typical of attempts to get by with "a-m lite."

Glen Canyon Dam - Political Stalemate
The political deficiencies inherent in attempts to use "a-m lite" to avoid decision conflict are well illustrated by the Glen Canyon Dam Adaptive Management Program (AMP), recommended in the Dam's 1995 Environmental Impact Statement. Continued Dam operations have been found to adversely affect eight ESA-listed species, the humpback chub and razorback sucker in particular. Powerful entities, however, including the Bureau of Reclamation, the Western Area Power Administration, power contractors and Colorado River Basin states, have a vested interest in maintaining the Dam's water storage and power generation capabilities, and in resisting calls for changes in operations that would restore natural river conditions more conducive to species recovery, such as timed high-flow releases and slower ramping rates. What has resulted, according to some observers, is increasing animosity among stakeholders and regulatory confusion, with no progress over 15 years in formulating a plan for long-term Dam operations, an extraprogrammatic resort to environmental litigation, and downriver ecology that remains precarious.

Stellar Sea Lion - Stagnation over Experimentation
A second cautionary tale is embodied in the federal response to a precipitous decline in the western Alaskan population of Stellar sea lions since the 1970s. At least nine plausible hypotheses for the decline have been advanced, some tied to the indirect effects of large scale commercial fisheries on the ecology of the sea lions' habitat, others positing more "nature-driven" explanations such as killer whale or shark predation or disease. Clearly, this was a situation calling for an adaptive management approach where the various hypotheses could be tested and an optimal regulatory regime constructed based on testing results. However, after nearly a decade of waffling federal response and litigation, NOAA Fisheries finally issued a precautionary, experimental Biological Opinion in 2000, calling for detailed divisions of fishery areas, closing some to fishing and leaving others open. What followed was a political backlash, with a fishing industry outcry against NOAA's "speculation and conjecture" and lack of "sound science" that resulted in Senator Ted Stevens' appropriations rider suspending the strict management regime proposed in the 2000 BiOp. Although numerous panels and committees were created to "refine" NOAA's recommended approach to appease various interests and still conduct effective hypothesis testing, by the end of the decade "the large-scale adaptive management experiment idea remains moribund, with no indications of revival."

The lesson drawn is the counterintuitive one that "progress in addressing environmental controversies often arises from advances in the politicalprocess." Conversely, when the political process is hostage to powerful interests, political pressure and the threat of litigation from both industry and conservationists tend to push federal agencies to "exaggerate the determinacy" of science or law or both and pull them away from acknowledging that the process fundamentally requires a policy choice regarding the level of precaution and the means of implementing it.

Promises & Pitfalls
In future consultations, then, such as the Middle Rio Grande's, adaptive management can focus stakeholder attention on ecological relationships and hypotheses and provide a framework for ongoing monitoring and re-evaluation of management assumptions. But the mere "adaptive management" label should not be allowed or relied on to substitute for the acknowledgement of tough policy choices and especially not to mask continued stringpulling by powerful interests, as it has in both the Glen Canyon Dam and Stellar sea lion situations.

Sources:
U.S. Dept. of the Interior Adaptive ManagementTechnical Guide, at http://www.doi.gov/. J.B. Ruhl & Robert Fischman, "Adaptive Management in the Courts" (2010). Lawrence Susskind et al., "Collaborative Planning and Adaptive Management in Glen Canyon: A Cautionary Tale" (2010). Beth C. Bryant, "Adapting to Uncertainty: Law, Science and Management in the Stellar Sea Lion Controversy" (2009).