Table 4. Participants’ responses to the question: Can you suggest specific changes to existing legal requirements that would facilitate adaptive management?


Legal statute Participant response
National Environmental Policy Act (NEPA) • “NEPA reconfiguration.”

• “Amend NEPA so that there is no confusion on how to insert multiple management scenarios into the environmental assessment process.”

• “Recent advocacy by the Council on Environmental Quality (CEQ) for inclusion of adaptive management (AM) into the NEPA cycle is a good first step; but it could be taken further to frame alternatives as competing hypotheses that would be tested through AM. This could make the NEPA cycle take longer, but would vastly improve alternative selection.”

• “There are examples of flexible and collaborative NEPA analyses. We do not have to wait until someone changes NEPA to make it work better. The CEQ has provided helpful guidance in this regard, and continues to work toward showcasing better ways of incorporating collaboration and AM into NEPA. Ways of implementing NEPA differently include investing more time at the beginning of a NEPA process to involve stakeholders in developing both goals and alternative actions—a more collaborative process is likely to yield a wider range of alternatives and more social license for flexibility in actions, more emphasis on goals and outcomes, and design of explicit processes for modifying actions to better achieve desired outcomes.”

Endangered Species Act (ESA) • “Review the ESA; AM insertion would strengthen that statute because so much uncertainty is wrapped up in threatened and endangered species conservation.”

• “In particular, ESA-related judicial decisions and documents such as biological opinions should all have the same definition of AM, and if AM is required it should be a rigorous attempt at linking science to decision-making.”

• “On the ESA side, the recent AM implementation plan for the Columbia River (FCRPS AMIP) is a very important step forward in allowing greater flexibility in conducting experiments while interjecting contingencies that provide protection for federally listed species.”

• “Major laws such as section 7.”

Fisheries management • “Moving away from single species requirements to whole ecosystem requirements. Recognize fisheries as part of the ecosystem and design how the fleet should look to be consistent with its particular regional ecosystem.”

• “Have fisheries councils create management sub-units in their management area that are charged with the responsibility for designing a plan for their sub-unit using collaborative management methods. It should be staffed with representatives of all stakeholders to occur; fishers should be elected by their peers.”

Congressional action/legal reforms • “Look at limiting the liability of agencies from lawsuits from environmental groups. Look at how these environmental groups are interfering with the management of wolves in the northern Rockies. If the agencies have some shelter from lawsuits, they may approach their responsibilities for land management differently.”

• “The appropriations process.”

• “Authorizing legislation for a restoration program effort required AM; additional language in the legislation could potentially help to better define what the decision-making universe is to help define it for the managers that have to implement it. In other words, give the managers direction (and legal/political coverage) to have flexibility in management decisions to encourage them from something other than the status quo (almost always a ‘safer’ decision-making space for them).”

• “I believe that Congress could institute the requirement for an adaptive management approach into funding for the top 10–12 largest landscape-level restoration efforts currently ongoing (i.e., Everglades, Gulf Coast, Missouri River, Great Lakes, etc.).”

• “Administrative Procedure Act needs to have an adaptive management track that frees government agencies from the need to go through full notice and comment for every adaptive change that they make in resource management.”

• “I’m not supportive of making use of AM a legal requirement for several reasons. AM is not always the best approach for implementing management actions (e.g., AM is not needed when uncertainty is low and values are shared among stakeholders). AM should remain adaptive; there would be major issues in institutionalizing.”

Other • “Allow managers the opportunity to be wrong”

• “Laws have monolithic requirements that do not allow negotiated settlements to reach logical conclusions that benefit all parties.”

• “Build in more accountability for projects beyond construction itself. Deal with performance metrics and acknowledge existing uncertainties and flexibility we currently use, regardless of the legal sideboards.”

• “Specific changes need to match the case and the environment. But, in general, the legal system needs to recognize the variance of natural systems, as well as cumulative impacts.”

• “This can become a ‘slippery slope’. Because of the uncertainty associated with adaptive management approaches, I believe it would be very difficult to reduce the regulatory certainty that federal and state agencies have grown accustomed to.”

• “You are barking up the wrong tree, the constraints are not usually the legal ones but managers that are trying to use the system to gain unauthorized and unfunded results while neglecting the true goals.”