Transforming (perceived) rigidity in environmental law through adaptive governance: a case of Endangered Species Act implementation

Abstract

ABSTRACT. The Endangered Species Act (ESA) is often portrayed as a major source of instability and crisis in river basins of the U. S. West, where the needs of listed fish species frequently clash with agriculture dependent on federal irrigation projects subject to ESA Section 7 prohibitions on federal agency actions likely to jeopardize listed species or adversely modify critical habitat. Scholarship on Section 7 characterizes the process as unwaveringly rigid, the legal "hammer" forcing federal agencies to consider endangered species' needs when proposing operations and management plans for federally funded irrigation. In this paper, we identify barriers to an integrated approach to Section 7 implementation and characterize a set of strategies for overcoming its rigidity that may have broader applicability. We draw on lessons derived from the Klamath Basin along the Oregon-California border, where cross-scale processes and venues involving interagency collaboration among leaders in the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and the U.S. Bureau of Reclamation supported efforts to replace an ecologically and socially fragmented Upper Basin/Lower Basin approach to ESA implementation fraught with conflict. The result was the nation's first joint biological opinion (BiOp), which effectively institutionalized an adaptive, flexible, integrated approach to water sharing among competing interests. Keys to success included existing collaborative capacity related to shifting stakeholder networks, trust, and relationships and a shift in local agency culture facilitated by empathic leadership leading to a greater sense of shared responsibility for Section 7 compliance. A collaborative hydrologic modeling process enhanced participatory capacity, facilitated transformative social and technical learning, and cultivated greater understanding of the social-ecological system among key stakeholders. The 2013 joint BiOp exemplifies both governmental capacity for flexibility and evolution within the constraints of formal law and the potential for greater integration among federal agencies and between federal agencies and stakeholders involved in ESA implementation.

Improving Environmental Decision‐Making Through Integrated Governance, Public Engagement, and Translational Approaches

“…Second, the government should delegate authority to agencies to promote networked decision‐making and collaboration (e.g., Gosnell et al. ). Third, foster participatory (through capacity building for marginalized populations and facilitation of inclusive collaborative processes) and adaptive capacity (through adaptive planning, adaptive management, market regulatory mechanisms, and networked governance).…”

“…The first key legal mechanism is for the structure of the government to balance stability by setting high-level goals and standards with flexibility and innovation through local experimentation , for Panarchy concept context, see Chaffin et al 2016). Second, the government should delegate authority to agencies to promote networked decision-making and collaboration (e.g., Gosnell et al 2017). Third, foster participatory (through capacity building for marginalized populations and facilitation of inclusive collaborative processes) and adaptive capacity (through adaptive planning, adaptive management, market regulatory mechanisms, and networked governance).…”

Looking for consensual protection categories to reduce conservation conflicts in protected áreas

“…Good governance in protected areas can be extremely challenging. Uncertainty and the difficulty of coordination between different levels of management in the same area increases the complexity of the decision-making processes (GOSNEL et al, 2017). This can become a serious problem for the assessment of the degree of achievement of conservation goals in protected areas.…”

“…Recently, a new paradigm of good governance emerged, having as essential principle the participation of local communities in decisionmaking processes (GOSNEL et al, 2017). In protected areas, there are usually strong conflicts and complex relationships among multiple and diverse stakeholders with contrasting interests, making the incorporation of participation processes into decision-making processes an urgent necessity (VUCETICH et al, 2018).…”

Introduction to the Special Feature Practicing Panarchy: Assessing legal flexibility, ecological resilience, and adaptive governance in regional water systems experiencing rapid environmental change

“…They conclude that attention to process and procedure (including participation), as well as increased use of substantive standards (instead of rules dictating how to achieve those standards), may allow an increased level of substantive flexibility to operate with legitimacy and fairness, providing the requisite levels of psychological, social, and economic stability needed for communities to successfully adapt. Gosnell et al (2017) argue that applications of regulatory law such as the Endangered Species Act can open a window of opportunity that leads to the emergence of adaptive processes. This can occur through collaborative processes that are needed to overcome piecemeal compliance and seek comprehensive solutions.…”