by Robin Meadows
California’s freshwater species are threatened by habitat loss and degradation, and are pushed to the brink of extinction by climate change. Many could be gone by the end of the century.
Now, a new Public Policy Institute of California (PPIC) report highlights another threat to conservation: fear of making the wrong management decision. But saving freshwater species will require taking some risks.
“We need to learn to be more nimble,” says Jennifer Harder, lead author of the report and a professor focusing on water and the environment at the University of the Pacific’s McGeorge School of Law. “Current management does not keep up with the needs of species.”
The new report builds on a 2024 PPIC report, led by aquatic ecologist Ted Sommer, that calls for thinking beyond conventional approaches to conserving freshwater ecosystems. “We came up with a toolbox of bold conservation solutions,” Sommer told Maven’s Notebook last year. “Many are familiar and others are more at the science-fiction end.”
Emerging conservation tools include tissue archives to preserve genetic diversity, hybridization to increase genetic diversity, and moving species outside their historical ranges to get ahead of climate change.
Harder, a co-author on the 2024 report, was then tasked with assessing the feasibility of implementing these tools from legal, policy, and institutional perspectives.
“I jumped at the chance,” she says. “We need to embrace a broader range of tools if we’re going to get anywhere with climate change.”
To learn more, Robin Meadows spoke with Harder about how risk aversion can hinder conservation efforts as well as the need for flexible conservation standards, avoiding information paralysis, and empowering individuals to take risks. This conversation has been edited for conciseness and clarity.
How did you get interested in water?
I’ve been interested in water since high school in Petaluma, when we built a steelhead and salmon hatchery. That was in the 1980s and the hatchery is still going. After law school, I spent a decade as a water attorney at a Sacramento firm, practicing water rights and environmental compliance, and serving as general counsel to public agencies including cities, counties, and water districts. I’ve taught water and environmental law at McGeorge for more than a decade and am also an adjunct fellow at the PPIC Water Policy Center.
How did you assess the feasibility of the conservation tools identified in the first report?
We determined whether they were authorized by law as well as challenges and opportunities for implementation. We also did a lot of interviews with state and federal natural resource agencies, environmental lawyers, and conservation organizations.
What did you learn?
A few themes kept coming up in all these sectors. The emerging conservation tools identified in our first report are often discussed by scientists and other experts but not yet by agencies. Many people had the idea that federal and state Endangered Species Acts would be a barrier to implementing these tools.
But we found that the barriers are generally not legal. Rather, the experts we interviewed said that emerging conservation tools are hindered by historical practices and beliefs.
How can historical practices and beliefs hinder conservation?
One issue that came up quite a bit is that current conservation is grounded in an old paradigm that the environment is static, with fixed qualities that we should avoid changing. These qualities set what environmental law calls a baseline.
This leads to processes, attitudes and beliefs to maintain the status quo. This is a natural tendency because it’s something we can get our heads around.
But the environment is not static. It’s constantly changing and we need to shift the culture to reflect that.
For example, the primary prohibition of the Endangered Species Act is not to “take” species—not to injure or kill them, and to avoid impacts. But this prohibition assumes that maintaining populations at current levels will protect them when, in fact, species depend on ecosystems that are in flux and vulnerable in a changing climate.
It’s important to keep our eye on take, but it’s more important to keep our eye on the entire habitat that a species depends on. What will it look like in five years? We’re not really breaking the mold like we need to when we manage species.
Were any of your findings surprising?
There were a number of surprises. First, there was a lot of agreement in all sectors that we need to be able to take risks—many of the experts, including agency staff, we interviewed identified risk aversion as a barrier.
Second, there’s a robust conversation about the need to use emerging tools within science, policy, and expert communities. My co-authors and I are not inventing this, we’re helping to shine a light on it.
Third, conservation tools like tissue archives and genetic libraries can easily be done under existing law. We need to protect that information from disappearing entirely—why aren’t we doing this for freshwater species at a statewide scale?
What are some conservation practices and strategies that are seen as risky but that we need to be able to do?
We need to be able to design conservation standards that are more flexible. Some think flexible standards can be misused but we can also provide boundaries that protect species. For example, give independent fish experts—instead of dam operators—flexible authority to decide when and how much water to release. There would be public notice and a state review process to provide accountability.
We also need to be able to act on incomplete data. We’re never going to have complete data and to aim for that just stalls decision making. We’re prone to information paralysis, and need to get better at knowing what data are feasible and reasonable to collect (agencies need to be able to actually use the data, which is harder than it sounds).
Also, agencies are inherently risk-averse because they don’t want to be sued. Conservation organizations hold agencies to the law—it’s their primary talking point. But while environmental laws are grounded in the old paradigm of fixed ecosystems, these laws and associated regulations also provide a lot of flexibility. It’s just the view of environmental laws that is entrenched.
We also need to accept that lawsuits can sometimes be OK. If we don’t take the risk of losing a court battle or two, then we are going to lose species. That’s not a good tradeoff.
California as a state has the most to lose—but the good news is that the state has the power to act, the state can be in the driver’s seat. To address climate change in our rivers and lakes, we need to do more, faster.
What can we do to change the risk-averse culture of conservation?
Leadership matters! Individuals need to be empowered to make decisions where there might be some risk involved, and they need to be able to do this without getting in trouble. They need to be supported.
Climate change is coming at our freshwater ecosystems so fast that the best thing would have been to have already started taking some risks. But now the best thing we can do is start today. It’s a big organizational change but, as we describe in the appendix to our report, there are ways to do this. I hope we can try.
