Taking Adaptive Management Seriously for the Endangered Species Act - Lots of Talk, Little Action
J. B. Ruhl
Vanderbilt University - Law School
FSU College of Law, Public Law Research Paper No. 101
One would think that the Endangered Species Act (ESA), the purpose of which is to conserve the ecosystems upon which endangered species depend, would employ the most advanced tools of ecosystem management. It does not. No serious account of the discipline of ecosystem management fails to position adaptive management techniques as the central approach for implementation of policy and decisions. Yet the ESA hardly mentions ecosystems, much less adaptive management. Rather, it is a classic example of what Professors Sidney Shapiro and Robert Glickstein have described as "front end" decision making that relies almost exclusively on ex ante analysis of decision impacts, whereas adaptive management requires a significant commitment to back end monitoring and adjustment of decision performance.
In this Article I explore the history and potential of adaptive management under the ESA. Over the past decade, administrative agencies responsible for implementing the ESA made significant strides toward seeking more back end approaches to the ESA, principally through what is known as the Habitat Conservation Plan (HCP) program. Yet there remains no integrated approach for adaptive management connecting the statute's information and planning programs (listing, critical habitat, and recovery plans) with the statute's regulatory programs (federal agency consultations, HCPs). In short, the statute does not create, and the agencies have not adopted, a comprehensive monitoring-adjustment feedback loop for the statute.
Rather, adaptive management remains, for all practical purposes, a limited, crisis-driven undertaking for the ESA. The HCP program, which showed early promise as a font of adaptive management implementation, has not lived up to that potential. Other programs within the statute, such as recovery planning and federal agency conservation planning, have been the victims of crabbed judicial and administrative interpretations that suck the life out of any adaptive management potential. Only in response to economic crisis, such as the recent (and continuing) saga of the Klamath River Basin, have Congress and the agencies supported a more aggressive and concerted adaptive management effort. Adaptive management, however, is supposed to avoid crisis, not mop up after it. Much work remains, therefore, before the ESA can be called a model of adaptive management.
Number of Pages in PDF File: 36
Date posted: February 23, 2004 ; Last revised: December 21, 2008