Table 1. Specific examples of legal constraints provided by practitioners.


Legal statute Description of legal constraint
Endangered Species Act (ESA) • “ESA requirements to safeguard listed species.”

• “ESA may hamper adaptive management (AM) if a Biological Opinion issued under Section 7 consultation limits flexible management. FACA [Federal Advisory Committee Act] issues may hamper stakeholder engagement in AM. Often agency culture, policies, and manager/staff understanding and experience with AM are the most limiting.”

• “ESA enforcement can foster AM, but it can also limit the ability to successfully implement AM.”

• “The Platte River Recovery Program is an exception, but that was developed specifically as mitigation for water depletions to the Platte River, so that is a different situation. In a more normal habitat conservation plan or conservation action for a listed species, there is typically little flexibility in the range of management options available for use due to the fact that the species is federally listed and protected from ‘take’ by the ESA. This is not necessarily a bad thing, but can hamper adaptive management.”

• “Some interpret the ESA as being rigid. But I’ve seen managers and interest groups agree on a flexible approach.”

• “Best example is ESA Section 7 determination of jeopardy or adverse modification of critical habitat that may limit the range of experiments that can be done to test outcomes of different management actions.”

• “ESA mandates single species management. It is not always appropriate and often assumes that ‘no action’ is the best management, when that is rarely the case in the bigger picture, and often not for the species in question.”

• “Candidate species for listing - a couple examples I can think of are species we know very little about but that have locally strong populations where we could try a couple different techniques to determine what habitat they require or do best in. But due to U.S. Fish and Wildlife Service hampering work in areas with these species, we are leaving them to hope for the best and not helping them in any way.”

National Environmental Policy Act (NEPA) • “NEPA requirements to evaluate all actions.”

• “I think NEPA could work with AM if people inserted all management scenario alternatives into the EIS [environmental impact statement] process up front ... but there are those who say that is challenging. I’ve yet to participate in a NEPA process as a land manager, so those naysayers may be right.”

• “I’ve heard that AM can be constrained by NEPA. At the same time, there are many NEPA documents that bear very little resemblance to the actual implementation of the project or the outcomes. Nonetheless, because the original document was definitive, it is considered ok, even though it is not accurate. It often ignores the flexibility decision makers use daily.”

Sustainable Fisheries Act/Magnusson-Stevens Management Act • “For fisheries: goal of economic efficiency; species managed individually; no consideration of nonfishing impacts”

• “In fisheries, Magnusson-Stevens Management Act requires managers to assess on the basis of population estimates of single species throughout the range while most overfishing problems exist at local levels... so little info that relates to management problems ever gets collected.”

Water supply and management statutes • “Water quality constraints can prevent water quantity improvements.”

• “Safe yield/firm yield determinations of public water supply may hamper adaptive management of watersheds.”

• “For example, as relates to major water development projects in the United States, there are stakeholders who have much to gain and stakeholders with much to lose if there are any changes to the status quo; and modifications to existing management regimes are explicit in adaptive management. Usually, stakeholders have built powerful political backing and supporting/complementary legal and regulatory frameworks to be sure the status quo is maintained—witness management of the Mississippi and Missouri rivers.”

Other/general • “Laws that pertain to components of ecosystems instead of total ecosystems. Lack of legal jurisdiction over “commons” resources, especially coastal and marine. Private landownership laws. The splinted approach by U.S. Department of Agriculture on ecosystem service payment programs.”

• “Mandated management actions that don’t consider what would be best for our natural resources.”

• “Any project authorization that requires one defined end state or implementation method regardless of outcome or continuing utility (i.e., Highway, Civil Works, etc.) rarely acknowledge existing flexibility in management much less trying something new.”

• “Planning documents (RMPs [resource management plans] or others) often have flexibility, but establish sideboards.”

• “I could name many for any existing Adaptive Management program now in place, but am convinced that self-interest is a much greater problem.”

• “Highest and best use requirements found in land use strategies.”