Biomass: Comparison of Definitions in Legislation

Kelsi Bracmort
Analyst in Agricultural Conservation and Natural Resources Policy

Ross W. Gorte
Specialist in Natural Resources Policy

The use of biomass as an energy feedstock is emerging as a potentially viable alternative to address U.S. energy security concerns, foreign oil dependence, rural economic development, and diminishing sources of conventional energy. Biomass (organic matter that can be converted into energy) may include food crops, crops for energy (e.g., switchgrass or prairie perennials), crop residues, wood waste and byproducts, and animal manure. Most legislation involving biomass has focused on encouraging the production of liquid fuels from corn. Efforts to promote the use of biomass for power generation have focused on wood, wood residues, and milling waste. Comparatively less emphasis has been placed on the use of non-corn based biomass feedstocks— other food crops, non-food crops, crop residues, animal manure, and more—as renewable energy sources for liquid fuel use or for power generation. This is partly due to the variety, lack of availability, and dispersed location of non-corn based biomass feedstock. The technology development status and costs to convert non-corn based biomass into energy are also viewed by some as an obstacle to rapid technology deployment. 

For over 30 years, the term biomass has been a part of legislation enacted by Congress for various programs, indicating some interest by the general public and policymakers in expanding its use. To aid understanding of why U.S. consumers, utility groups, refinery managers, and others have not fully adopted biomass as an energy resource, this report investigates the characterization of biomass in legislation. The definition of biomass has evolved over time, most notably since 2004. The report lists biomass definitions enacted by Congress in legislation and the tax code since 2004 and definitions contained in pending legislation (the American Clean Energy and Security Act of 2009, H.R. 2454; the American Clean Energy Leadership Act of 2009, S. 1462; the Clean Energy Jobs and American Power Act, S. 1733; and the discussion draft of the American Power Act). Comments on the similarities and differences among the definitions are provided. One point of contention regarding the definition is the inclusion of biomass from federal lands. Some argue that removal of biomass from these lands may lead to ecological harm. Others contend that biomass from federal lands can aid the production of renewable energy to meet certain mandates (e.g., the Renewable Fuel Standard) and can enhance forest protection from wildfires. Factors that may prevent a private landowner from rapidly entering the biomass feedstock market are also included in the report. .


Date of Report: May 18, 2010
Number of Pages: 21
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Conservation Reserve Program: Status and Current Issues

Tadlock Cowan
Analyst in Natural Resources and Rural Development

The Conservation Reserve Program (CRP), enacted in 1985, provides payments to farmers to take highly erodible or environmentally sensitive cropland out of production for ten years or more. It is the federal government's largest private land retirement program. The program is administered by the Farm Service Agency (FSA) of the U.S. Department of Agriculture (USDA), with technical assistance provided by USDA's Natural Resources Conservation Service. The CRP also has several subprograms, the best-known of which is the Conservation Reserve Enhancement Program (CREP). 

The 2008 farm bill (P.L. 110-246) reauthorized CRP through FY2012 but reduced the maximum acreage level to 32 million acres, down from the previous cap of 39.2 million acres. Criteria for haying and grazing on CRP land were amended, and incentives were authorized to assist socially disadvantaged and beginning farmers in leasing or purchasing land under a CRP contract. A draft supplemental environmental impact statement on the 2008 farm bill changes to CRP was completed in February 2010. A final draft is expected by summer 2010. On May 14, 2010, an interim rule was published in the Federal Register to implement the Transition Incentives Program. 

The national enrollment as of April 2010 stood at 31.2 million acres, a decrease of approximately 3.5 million acres from October 2008 and a decrease of approximately 2.5 million acres from September 2009. Secretary Vilsack announced in March that there would be a general signup in late spring or summer 2010, the first since 2006. Approximately 85% of total CRP acreage is enrolled under general sign-ups. There was a continuous enrollment sign-up during late spring and summer 2009 (number 37) that added 488,000 acres to CRP totals. Continuous sign-up 38 began in October 2009 and will continue to October 2011. 

For FY2010, outlays are projected to total $1.7 billion, approximately $250 million less than for FY2009. This projected total includes funding for rental payments, cost-share payments, and incentive payments. The average per-acre rental payment for general sign-up is currently $44.59, and the average rental rate for CREP totals over $129 per acre. The average rental payment for all CRP programs is approximately $53 per acre. 

Between 2007 and 2010, 27.8 million acres under CRP contracts will expire. Contracts for approximately 24 million (86%) of these acres have been renewed or extended. On September 30, 2009, contracts on approximately 3.9 million acres were set to expire. USDA announced a signup for contract extensions that ran from May 18 to June 30, 2009. Of the expiring 3.9 million acres, however, only about 1.5 million were offered extension contracts. About 55% of the eligible expiring acreage was in four states: Colorado, Kansas, Montana, and Texas. As of December 2009, participants holding contracts on 1.1 million acres originally set to expire September 30, 2009, had accepted extension offers (73%). An additional 4.5 million acres will expire September 30, 2010. Approximately 75% of the FY2010 expiring acres have been reenrolled or had their contracts extended.


Date of Report: May 20, 2010
Number of Pages: 14
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Army Corps of Engineers Water Resource Projects: Authorization and Appropriations

Nicole T. Carter
Specialist in Natural Resources Policy

Charles V. Stern
Analyst in Natural Resources Policy

The U.S. Army Corps of Engineers attracts congressional attention because its civil works projects can provide economic benefits, locally and regionally, in addition to their water resource development purposes. The primary missions of the Corps are creating and maintaining navigable channels, reducing flood and storm damage, and restoring aquatic ecosystems. Congress directs the agency through authorizations, appropriations, and oversight of studies, construction projects, and other activities. This report gives an overview of Corps congressional authorization and appropriations processes. It also explains the Corps project development process, as well as other agency activities under general authorities (e.g., repair of damaged levees). 

Authorization of Water Resources Activities. Congress generally authorizes Corps activities and provides policy direction in Water Resources Development Acts (WRDAs). Congress also authorizes some studies through resolutions passed by an authorizing committee. Pressure to authorize new projects, increase authorized funding levels, and modify existing projects promotes fairly regular WRDA consideration. Beginning in 1986, a biennial WRDA consideration was loosely followed; enactment has been less regular. The last WRDA was enacted in November 2007 (P.L. 110-114). Both the House and Senate authorizing committees have initiated assembly of the next WRDA bill for the 111th Congress. 

Annual Agency Appropriations. Federal funding is provided for most Corps civil works activities through annual Energy and Water Development appropriations acts. Some appropriations acts also may include Corps authorizations. In part because of competition for limited funding and because Corps authorizations significantly outpace appropriations, many authorized activities do not receive appropriations. There is currently a backlog of more than 1,000 authorized studies and construction projects. In recent years, few new studies and new construction activities have been included in either the President's budget request or enacted appropriations legislation. 

Standard Project Development Process. The standard process for a Corps project requires two separate congressional authorizations—one for investigation and one for project construction—as well as appropriations. The investigation phase starts with Congress authorizing a study; if it is funded, the Corps then conducts an initial reconnaissance study followed by a more detailed feasibility study. Congressional authorization for construction is based on the feasibility study. For most activities, the Corps also requires a nonfederal sponsor to share some portion of study and construction costs. These cost-sharing requirements vary by the type of project. For many types of projects, such as flood control projects (e.g., levees), the nonfederal sponsors are responsible for regular operation and maintenance expenses after construction. 

Other Corps Activities and Authorities. Although the project development process just described is standard, there are exceptions. Congress has granted the Corps some general authorities to undertake small projects, technical assistance, and emergency actions such as flood fighting and repair of damaged levees. Additionally, the Corps conducts emergency response actions through mission assignments directed by the Federal Emergency Management Agency. Corps emergency response actions are funded primarily through supplemental appropriations. Congress also has specifically authorized Corps participation in numerous environmental infrastructure projects (e.g., municipal water and wastewater treatment systems).


Date of Report: May 19, 2010
Number of Pages: 18
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Methane Capture: Options for Greenhouse Gas Emission Reduction

Kelsi Bracmort
Analyst in Agricultural Conservation and Natural Resources Policy

Jonathan L. Ramseur
Specialist in Environmental Policy

James E. McCarthy
Specialist in Environmental Policy

Peter Folger
Specialist in Energy and Natural Resources Policy

Donald J. Marples
Specialist in Public Finance

Research on climate change has identified a wide array of sources that emit greenhouse gases (GHGs). Among the six gases that have generally been the primary focus of concern, methane is the second-most abundant, accounting for approximately 8% of total U.S. GHG emissions in 2008. Methane is emitted from a number of sources. The most significant are agriculture (both animal digestive systems and manure management); landfills; oil and gas production, refining, and distribution; and coal mining. 

As Congress considers legislation to address climate change by capping or reducing GHG emissions, methane capture projects offer an array of possible reduction opportunities, many of which utilize proven technologies. Methane capture projects (e.g., landfill gas projects, anaerobic digestion systems) restrict the release of methane into the atmosphere. The methane captured can be used for energy or flared. Methane capture challenges differ depending on the source. Most methane capture technologies face obstacles to implementation, including marginal economics in many cases, restricted pipeline access, and various legal issues. 

Some of the leading methane capture options under discussion include market-based emission control programs, carbon offsets, emission performance standards, and maintaining existing programs and incentives. At present, methane capture technologies are supported by tax incentives in some cases, by research and demonstration programs in others, by regulation in the case of the largest landfills, and by voluntary programs. Congress could decide to address methane capture in a number of different ways, including (1) determining the role of methane capture in climate change legislation; (2) determining whether methane capture should be addressed on an industry-by-industry basis; and (3) determining if current methane capture initiatives will be further advanced with legislative action regardless of other facets of the climate change policy debate. What role methane capture would play in prospective legislation to control GHGs—whether methane sources would be included among those covered by a cap-and-trade system, for example, whether they would be a source of emission offsets from sources not covered by cap-and-trade, or whether their emissions might be subject to regulation—is among the issues that Congress faces. 

A few government programs have supported the capture of methane to mitigate climate change. The Methane-to-Markets Partnership, administered by the Environmental Protection Agency (EPA), is an international initiative to reduce global methane emissions. EPA also oversees a variety of voluntary programs related to the Methane-to-Markets initiative (e.g., Coalbed Methane Outreach Program, Natural Gas STAR Program, Landfill Methane Outreach Program, AgSTAR Program). 

This report discusses legislative alternatives for addressing methane capture, sources of methane, opportunities and challenges for methane capture, and current federal programs that support methane recovery. .


Date of Report: May 10, 2010
Number of Pages: 24
Order Number: R40813
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Federal Lands Managed by the Bureau of Land Management (BLM) and the Forest Service (FS): Issues for the 111th Congress

Ross W. Gorte, Coordinator
Specialist in Natural Resources Policy

Carol Hardy Vincent, Coordinator
Specialist in Natural Resources Policy

Kristina Alexander
Legislative Attorney

Marc Humphries
Analyst in Energy Policy

The 111th Congress, the Administration, and the courts are considering many issues related to the Bureau of Land Management (BLM) public lands and the Forest Service (FS) national forests. Key issues include the following. 

Energy Resources. The Energy Policy Act of 2005 (P.L. 109-58) led to new regulations on federal land leasing for oil and gas, oil shale, geothermal, and renewable energy. The Obama Administration is reviewing some rules and has withdrawn certain oil and gas leases in Utah. 

Hardrock Mining. The General Mining Law of 1872 allows prospecting for minerals in open public domain lands. Several bills to reform aspects of the Law have been introduced to require royalties on production and establish a fund to clean up abandoned mines, among other changes. 

Wildfire Protection. Various initiatives seek to protect communities from wildfires by expanding fuel reduction, and one related program was established in P.L. 111-11. Cost concerns led to new fire suppression accounts in the FLAME Act (Title V of P.L. 111-88). 

Wild Horses and Burros. To reduce program costs and the number of wild horses and burros on the range, the Secretary of the Interior has proposed wild horse preserves and increased fertility controls. Legislation would prohibit the slaughter of healthy wild horses and burros and more. 

National Landscape Conservation System. The 111th Congress affirmed BLM's 27 million-acre land protection system by establishing it legislatively (P.L. 111-11). Questions focus on funding and management for these specially protected conservation areas. 

Wilderness. P.L. 111-11 designated more than 2 million acres of wilderness, and more wilderness bills have been introduced. Many recommendations for wilderness areas are pending. Questions persist about wilderness review and managing wilderness study areas (WSAs). 

National Forest System Roadless Areas. Debates persist about managing roadless areas for different values, and bills have been introduced to protect the areas. Regulations from previous administrations were challenged successfully, leading to potentially conflicting court rulings. 

FS NEPA Application. The FS has altered its process for activity review under the National Environmental Policy Act of 1969 (NEPA), and has added activities that can be categorically excluded from reviews. Many of these changes and proposals have been challenged in court. 

BLM Land Sales. The Federal Land Transaction Facilitation Act authorizes the sale or exchange of BLM lands and use of the proceeds for certain land acquisitions. It is due to expire on July 24, 2010. H.R. 3339 and S. 1787 seek to make the authority permanent. 

National Forest Planning. The National Forest Management Act of 1976 requires land and resource management plans for the national forests. Regulations from previous administrations have not been implemented, and the Obama Administration has begun a new rulemaking effort. 


Date of Report: May 13, 2010
Number of Pages: 32
Order Number: R40237
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The Endangered Species Act (ESA) in the111th Congress: Conflicting Values and Difficult Choices

Eugene H. Buck
Specialist in Natural Resources Policy

M. Lynne Corn
Specialist in Natural Resources Policy

Pervaze A. Sheikh
Specialist in Natural Resources Policy

Robert Meltz
Legislative Attorney

Kristina Alexander
Legislative Attorney

The Endangered Species Act (ESA; P.L. 93-205, 16 U.S.C. §§ 1531-1543) has been one of the more contentious environmental laws. This may stem from its strict substantive provisions, which can affect the use of both federal and nonfederal lands and resources. Under ESA, species of plants and animals (both vertebrate and invertebrate) can be listed as endangered or threatened according to assessments of their risk of extinction. Once a species is listed, powerful legal tools are available to aid its recovery and protect its habitat. ESA may also be controversial because dwindling species are usually harbingers of broader ecosystem decline. The most common cause of species listing is habitat loss. ESA is considered a primary driver of large-scale ecosystem restoration issues. 

The 111th Congress has considered whether to revoke ESA regulations promulgated in the waning days of the Bush Administration that would alter when federal agency consultation is required. In addition, legislation related to global climate change includes provisions that would allocate funds to the U.S. Fish and Wildlife Service's endangered species program and/or to related funds to assist species adaptation to climate change. Other major issues concerning ESA in recent years have included the role of science in decision-making, critical habitat (CH) designation, protection by and incentives for property owners, and appropriate protection of listed species, among others. 

The authorization for spending under ESA expired on October 1, 1992. The prohibitions and requirements of ESA remain in force, even in the absence of an authorization, and funds have been appropriated to implement the administrative provisions of ESA in each subsequent fiscal year. Proposals to reauthorize and extensively amend ESA were last considered in the 109th Congress, but none was enacted. No legislative proposals were introduced in the 110th Congress to reauthorize the ESA. 

In the first session of the 111th Congress, P.L. 111-8 contained language authorizing the Secretary of the Interior to withdraw or reissue (1) revisions to the ESA Section 7 consultation regulations promulgated by the Bush Administration and (2) a December 2008 special rule that outlined protections afforded polar bears. In addition, P.L. 111-11 included provisions (1) authorizing the implementation of the San Joaquin River Restoration Settlement, providing for the reintroduction of Chinook salmon, and (2) amending P.L. 106-392 to extend the authorizations for the Upper Colorado and San Juan River Basin endangered fish recovery programs through FY2023. P.L. 111-88 appropriated about $281 million for U.S. Fish and Wildlife Service endangered species and related programs for FY2010. 

This report discusses oversight issues and legislation introduced in the 111th Congress to address ESA implementation and management of endangered and threatened species.


Date of Report: May 12, 2010
Number of Pages: 29
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Wild Horses and Burros: Current Issues and Proposals

Carol Hardy Vincent
Specialist in Natural Resources Policy

The Wild Free-Roaming Horses and Burros Act of 1971 (the 1971 Act) protects wild horses and burros on federal lands, and places them under the jurisdiction of the Bureau of Land Management (BLM) and the Forest Service (FS). Under the 1971 Act, the agencies are to inventory horse and burro populations on federal land to determine appropriate management levels (AMLs). They are authorized to remove animals exceeding the range's carrying capacity. First, the agencies are to destroy "old, sick, or lame animals" by the most humane means available. Second, they are to remove healthy animals for private adoption. Third, if adoption demand is insufficient, the remaining healthy animals are to be destroyed. However, the agencies have not used this authority since 1982, and the FY2010 Interior appropriations law prohibited funds from being used to slaughter healthy animals. The 108th Congress enacted changes to wild horse and burro management. One change directed the agencies to sell, "without limitation," excess animals (or their remains) that essentially are too old or otherwise unadoptable. 

BLM has not achieved reduction to the national AML—26,578 for all herds. There were an estimated 36,940 wild horses and burros on BLM lands as of February 28, 2009. Another 35,138 animals were in BLM holding facilities as of May 1, 2010. More than half of BLM's $64.0 million FY2010 appropriation for wild horses and burros is being used to care for animals in holding facilities. A much smaller number of horses and burros are on FS lands—3,620. 

Management of wild horses and burros has long been controversial, with most attention centering on BLM. Among the most contentious issues are whether BLM should destroy healthy animals under the authority provided in the 1971 Act, and sell animals "without limitation" as provided in the 108th Congress changes. Thus far the agency has focused on sales with procedures to protect against slaughter. Other controversial issues include the priority given wild horses and burros in land use decisions; whether, and to what extent, to remove animals from the range; the disposal of healthy animals through the adoption and sales programs; the extent of holding animals in facilities, particularly long-term (pasture) facilities; the use of fertility control to slow the rate of reproduction; and the costs of management and whether funding is appropriate. 

Several sets of options are being considered for reaching AML, limiting the number of animals in holding, reducing program costs, and generally improving the care and management of wild horses and burros, primarily by BLM. An October 2008 report by the Government Accountability Office recommended that BLM use different methods to estimate populations, issue a policy to achieve consistency in setting AMLs, provide information to the public on treatment of animals, and develop alternatives to caring for animals in facilities. In November 2008, the Wild Horse and Burro Advisory Board made recommendations to BLM on how to reduce wild horse and burro herd sizes, population growth, and costs of management, among other issues. Selling animals without limitation or euthanizing excess animals were presented "as a last resort." Also in November 2008, a private individual expressed interest in purchasing thousands of excess animals from BLM to establish a wild horse sanctuary. On October 7, 2009, the Secretary of the Interior, calling the current BLM wild horse and burro program "unsustainable," announced proposals to establish wild horse preserves for the care of non-producing herds, and to reduce population growth rates through such methods as expanded use of fertility control. The Administration's FY2011 budget request included funding for these proposals. Pending House and Senate companion bills (H.R. 1018 and S. 1579) seek to amend the 1971 Act to prohibit the slaughter of healthy wild horses and burros, remove agency authority to sell animals, limit the removal of animals from the range, create wild horse and burro sanctuaries, and expand the areas available for herds, among other changes.


Date of Report: May 11, 2010
Number of Pages: 24
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Conservation Reserve Program: Status and Current Issues

Tadlock Cowan
Analyst in Natural Resources and Rural Development

The Conservation Reserve Program (CRP), enacted in 1985, provides payments to farmers to take highly erodible or environmentally sensitive cropland out of production for ten years or more. It is the federal government's largest private land retirement program. The program is administered by the Farm Service Agency (FSA) of the U.S. Department of Agriculture (USDA), with technical assistance provided by USDA's Natural Resources Conservation Service. The CRP also has several subprograms, the best-known of which is the Conservation Reserve Enhancement Program (CREP). 

The 2008 farm bill (P.L. 110-246) reauthorized CRP through FY2012 but reduced the maximum acreage level to 32 million acres, down from the previous cap of 39.2 million acres. Criteria for haying and grazing on CRP land were amended, and incentives were authorized to assist socially disadvantaged and beginning farmers in leasing or purchasing land under a CRP contract. A draft supplemental environmental impact statement on the 2008 farm bill changes to CRP was completed in February 2010. A final draft is expected by summer 2010. 

The national enrollment as of April 2010 stood at 31.2 million acres, a decrease of approximately 3.5 million acres from October 2008 and a decrease of approximately 2.5 million acres from September 2009. Secretary Vilsack announced in March that there would be a general signup in late spring or summer 2010, the first since 2006. Approximately 85% of total CRP acreage is enrolled under general sign-ups. There was a continuous enrollment sign-up during late spring and summer 2009 (number 37) that added 488,000 acres to CRP totals. Continuous sign-up 38 began in October 2009 and will continue to October 2011. 

For FY2010, outlays are projected to total $1.7 billion, approximately $250 million less than for FY2009. This projected total includes funding for rental payments, cost-share payments, and incentive payments. The average per-acre rental payment for general sign-up is currently $44.59, and the average rental rate for CREP totals over $129 per acre. The average rental payment for all CRP programs is approximately $53 per acre. 

Between 2007 and 2010, 27.8 million acres under CRP contracts will expire. Contracts for approximately 24 million (86%) of these acres have been renewed or extended. On September 30, 2009, contracts on approximately 3.9 million acres were set to expire. USDA announced a signup for contract extensions that ran from May 18 to June 30, 2009. Of the expiring 3.9 million acres, however, only about 1.5 million were offered extension contracts. About 55% of the eligible expiring acreage was in four states: Colorado, Kansas, Montana, and Texas. As of December 2009, participants holding contracts on 1.1 million acres originally set to expire September 30, 2009, had accepted extension offers (73%). An additional 4.5 million acres will expire September 30, 2010. Approximately 75% of the FY2010 expiring acres have been reenrolled or had their contracts extended.


Date of Report: May 13, 2010
Number of Pages: 14
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Sage Grouse and the Endangered Species Act (ESA)

Kristina Alexander
Legislative Attorney

M. Lynne Corn
Specialist in Natural Resources Policy

Western states have seen conflicts over natural resources for more than a century. These conflicts have involved issues such as grazing, roads, fences, oil and gas development, urban expansion, spread of invasive species, water rights, Native rights, timber harvest, and pollution. Recent additions to the list include development of alternative energy such as wind and solar power. In many cases, the more recent conflicts have involved the protection of endangered and threatened species, often with one group of advocates seeing listed species as an obstacle to their development goals or property rights, and another group advocating protection in line with their environmental, scientific, or economic goals. One such controversy is developing in 11 western states over sage grouse, whose numbers can be threatened by roads, fences, power lines, urban expansion, and energy development. This report describes the state of knowledge about these birds, history of efforts to protect them, and current controversies. 

In March 2010, the U.S. Fish and Wildlife Service (FWS), in response to petitions and lawsuits, issued a determination that listing the sage grouse under the Endangered Species Act (ESA) was warranted but precluded by the need to list species with a more urgent need of protection. Thus, the sage grouse is treated as a candidate species and does not have the protections that a listed species would have. 

The sage grouse, once abundant in western sagebrush habitat in 16 states, has dropped in numbers, and is now found in 11 states. Its decline can be attributed to several factors—increased use of sage grouse habitat by ranching and oil and gas development, decreased sagebrush due to noxious invasive species, and loss of habitat due to more frequent fires. However, the extent of the decline is not certain, and some dispute that the sage grouse is in peril. There is some discussion over how many different species of grouse there are and how they may be related. Currently, two species are recognized by scientists: the Gunnison grouse and the sage grouse. In addition, some experts divide the sage grouse into various distinct populations. FWS received several petitions to list these entities as endangered or threatened. 

One factor in making a listing decision is whether other regulations are in place to provide adequate protections of a species so that federal listing is not necessary to prevent extinction. States in primary sage grouse habitat have taken action to forestall an endangered species listing, which some believe would inhibit energy development on vast amounts of public and private property. These issues are at the forefront as Congress considers increased energy development on federal lands, while balancing the mission of the ESA.


Date of Report: May 4, 2010
Number of Pages: 27
Order Number: R40865
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Anaerobic Digestion: Greenhouse Gas Emission Reduction and Energy Generation

Kelsi Bracmort
Analyst in Agricultural Conservation and Natural Resources Policy

Anaerobic digestion technology may help to address two congressional concerns that have some measure of interdependence: development of clean energy sources and reduction of greenhouse gas emissions. Anaerobic digestion technology breaks down a feedstock—usually manure from livestock operations—to produce a variety of outputs including methane. An anaerobic digestion system may reduce greenhouse gas emissions because it captures the methane from manure that might otherwise be released into the atmosphere as a potent greenhouse gas. The technology may contribute to the development of clean energy because the captured methane can be used as an energy source to produce heat or generate electricity. 

Anaerobic digestion technology has been implemented sparingly, with 151 anaerobic digestion systems operating nationwide. Some barriers to adoption include high capital costs, questions about reliability, and varying payment rates for the electricity generated by anaerobic digestion systems. Two sources of federal financial assistance that may make the technology more attractive are the Section 9007 Rural Energy for America Program of the Food, Conservation, and Energy Act of 2008 (2008 farm bill, P.L. 110-246), and the Renewable Electricity Production Tax Credit (26 U.S.C. §45). 

Congress could decide to encourage development and use of the technology by (1) identifying the primary technology benefit, so as to determine whether it should be pursued in the framework of greenhouse gas emission reduction or clean energy development; (2) determining if the captured methane will count as a carbon offset; and (3) considering additional financing options for the technology. 

This report provides information on anaerobic digestion systems, technology adoption, challenges to widespread implementation, and policy interventions that could affect adoption of the technology. .


Date of Report: May 4, 2010
Number of Pages: 16
Order Number: R40667
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Fishery, Aquaculture, and Marine Mammal Issues in the 111th Congress

Eugene H. Buck
Specialist in Natural Resources Policy

Harold F. Upton
Analyst in Natural Resources Policy

Fish and marine mammals are important resources in open ocean and nearshore coastal areas; many federal laws and regulations guide their management as well as the management of their habitat. 

Commercial and sport fishing are jointly managed by the federal government and individual states. States generally have jurisdiction within 3 miles of the coast. Beyond state jurisdiction and out to 200 miles, the federal government manages fisheries under the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA) through eight regional fishery management councils. Beyond 200 miles, the United States participates in international agreements relating to specific areas or species. The 111th Congress may oversee implementation of the MSFCMA as well as address individual habitat and management concerns for U.S. commercial and sport fisheries to achieve a sustainable balance between resource use and protection. Current concerns include whether additional effort should be taken to eliminate overfishing, how fishery disaster assistance should be funded, and whether to more aggressively encourage fishing vessel capacity reduction and limited access privilege programs. The 111th Congress has enacted P.L. 111-5, including language to broaden the basis for determining import increases for trade adjustment assistance for fishing and aquaculture to include wild-caught fish and seafood in addition to farmraised fish and seafood. In addition, P.L. 111-11 authorized implementation of the San Joaquin River Restoration Settlement providing for the reintroduction of Chinook salmon; extended the authorizations for the Upper Colorado and San Juan River Basin endangered fish recovery programs through FY2023; directed the Secretary of Commerce to establish an ocean acidification program within NOAA, and to establish an interagency committee to develop an ocean acidification research and monitoring plan; and reauthorized (through FY2015) and amend the Fisheries Restoration and Irrigation Mitigation Act of 2000. 

Aquaculture—the farming of fish, shellfish, and other aquatic animals and plants in a controlled environment—is expanding rapidly abroad, with more modest growth in the United States. In the United States, important species cultured include catfish, salmon, shellfish, and trout. The 111th Congress has enacted P.L. 111-5, including language (1) providing as much as $50 million in total assistance to aquaculture producers for losses associated with high feed input costs during the 2008 calendar year and (2) including National Fish Hatcheries as eligible for $165 million in resource management funding as well as $115 million in construction funding for the U.S. Fish and Wildlife Service. 

Marine mammals are protected under the Marine Mammal Protection Act (MMPA). With few exceptions, the MMPA prohibits harm or harassment ("take") of marine mammals, unless restrictive permits are obtained. It also addresses specific situations of concern, such as dolphin mortality, primarily associated with the eastern tropical Pacific tuna fishery. The 111th Congress may consider bills to reauthorize and amend the MMPA as well as measures to address specific marine mammal habitat and management concerns, such as how to deal with the effects of increasing noise in the ocean. .


Date of Report: May 14, 2010
Number of Pages: 33
Order Number: R40172
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Asian Carp and the Great Lakes Region

Eugene H. Buck
Specialist in Natural Resources Policy

Harold F. Upton
Analyst in Natural Resources Policy

Charles V. Stern
Analyst in Natural Resources Policy

James E. Nichols
Law Clerk

Four species of non-indigenous Asian carp are expanding their range in U.S. waterways, resulting in a variety of concerns and problems. Three species—bighead, silver, and black carp—are of particular note, based on the perceived degree of environmental concern. Current controversy relates to what measures might be necessary and sufficient to prevent movement of Asian carp from the Mississippi River drainage into the Great Lakes through the Chicago Area Waterway System. Bills have been introduced in the 111th Congress to direct actions to avoid the possibility of carp becoming established in the Great Lakes. 

According to the Great Lakes Fishery Commission, Asian carp pose a significant threat to commercial and recreational fisheries of the Great Lakes. Asian carp populations could expand rapidly and change the composition of Great Lakes ecosystems. Native species could be harmed because Asian carp are likely to compete with them for food and modify their habitat. It has been widely reported that Great Lakes fisheries generate economic activity of approximately $7 billion annually. Although Asian carp introduction is likely to modify Great Lakes ecosystems and cause harm to fisheries, studies forecasting the extent of potential harm are not available. Therefore, it is not possible to provide estimates of potential changes in the regional economy or economic value (social welfare) by lake, species, or fishery. 

The locks and waterways of the Chicago Area Waterway System (CAWS) have been a focal point for those debating how to prevent Asian carp encroachment on the Great Lakes. The CAWS is the only navigable link between the Great Lakes and the Mississippi River, and many note the potential of these waterways to facilitate invasive species transfers from one basin to the other. The U.S. Army Corps of Engineers has constructed and is currently operating electrical barriers to prevent fish passage. However, in light of recent tests indicating the potential presence of Asian carp in Lake Michigan, increased federal funding to prevent fish encroachment has been announced by the Obama Administration, and calls to permanently separate the two basins have grown. The potential closure of existing navigation structures in the CAWS and the permanent separation of the basins are currently the most contentious issues related to Asian carp control in the region, and a long-term solution has yet to be decided. 

On January 19, 2010, the Supreme Court refused to order emergency measures sought by the State of Michigan to stop the migration of invasive Asian carp toward Lake Michigan from rivers and a sanitary canal in Illinois. Without comment, the Court refused to issue a preliminary injunction that would have closed waterway locks and required other temporary measures in reaction to the discovery of Asian carp upstream in Illinois rivers. On February 4, 2010, Michigan's Attorney General Mike Cox filed a renewed motion, asking the Supreme Court to reconsider issuing a preliminary injunction for the closure of Chicago-area locks based on new evidence that Asian carp are present in Lake Michigan. Michigan's renewed motion for a preliminary injunction was denied by the Supreme Court on March 22, 2010. 

In the 111th Congress, Section 126 in Title I of P.L. 111-85 directed the U.S. Army Corps of Engineers to implement additional measures to prevent invasive species from bypassing the Chicago Sanitary and Ship Canal Dispersal Barrier Project and dispersing into the Great Lakes. Other bills have been introduced to list additional Asian carp species as injurious under the Lacey Act (H.R. 48, H.R. 3173, S. 237, S. 1421), and to direct various federal agencies to take specific actions to increase control over and restrict the spread of Asian carp (H.R. 51, H.R. 4472, S. 237, S. 2946).


Date of Report: May 3, 2010
Number of Pages: 25
Order Number: R41082
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Legislative Approaches to Defining “Waters of the United States”

Claudia Copeland
Specialist in Resources and Environmental Policy

In the 111th Congress, legislation has been introduced that seeks to clarify the scope of the Clean Water Act (CWA) in the wake of Supreme Court decisions in 2001 and 2006 that interpreted the law's jurisdiction more narrowly than prior case law. The Court's narrow interpretation involved jurisdiction over some geographically isolated wetlands, intermittent streams, and other waters. The two cases are Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC) and Rapanos v. United States. 

Bills to nullify the Court's rulings have been introduced repeatedly since the 107th Congress, but none had advanced until the 111th Congress. In June 2009, a Senate committee approved S. 787, the Clean Water Restoration Act. Companion legislation in the House, H.R. 5088 (America's Commitment to Clean Water Act), was introduced in April 2010. 

Under current law, the key CWA phrase which sets the act's reach is the phrase "navigable waters," defined to mean "the waters of the United States, including the territorial seas." Proponents of the current legislation contend that the Court misread Congress' intent when it enacted the CWA, and consequently the Court's ruling unduly restricted the scope of the act's water quality protections. Both S. 787 and H.R. 5088 would replace the phrase "navigable waters" in the CWA with "waters of the United States" and would install a definition of "waters of the United States," not found in the law now. The bills differ in how they would define the phrase. The Senate committee bill includes a definition drawn from one paragraph of existing federal regulatory text, while H.R. 5088 includes a longer definition based on the same regulatory language, but with some modifications. Both bills also include provisions affirming the constitutional basis for the act's jurisdiction. These provisions address the concern that the Court's rulings, while decided on statutory grounds, raised related questions about the outer limits of Congress's power to regulate waters with little or no connection to traditional navigable waters under the Commerce Clause of the Constitution. 

Proponents of the current legislation, including many states and environmental advocacy groups, contend that the Court's ruling in these cases, and subsequent regulatory guidance by federal agencies, have unsettled several decades' worth of case law, misreading or ignoring congressional intent, and thus reinterpreting and narrowing the jurisdictional scope of the act. Supporters say that the intention is to return to the CWA regulatory jurisdiction that prevailed before the Court's rulings. On the other hand, critics, including many industry groups and development and home builder organizations, contend that the legislation would greatly expand federal regulatory jurisdiction of the CWA beyond interpretations that existed before the two Supreme Court rulings, not simply reaffirm congressional intent. They are concerned that the legislation has the potential to be interpreted far more broadly than what was previously understood to be jurisdictional—thus causing more uncertainty, rather than clarifying the issue. 

Between proponents and critics, there is wide disagreement whether the new statutory definition proposed in either bill, coupled with other changes, will achieve the objective of clarity and certainty that is broadly desired. In light of the differing views on the issues, future prospects for either bill are uncertain. The legal and policy questions associated with the SWANCC and Rapanos cases—concerning the outer geographic limits of CWA jurisdiction and consequences of restricting that scope—have challenged regulators, landowners and developers, and policymakers for more than 35 years.


Date of Report: April 30, 2010
Number of Pages: 18
Order Number: R41225
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Gray Wolves Under the Endangered Species Act (ESA): Distinct Population Segments and Experimental Populations

Kristina Alexander
Legislative Attorney

M. Lynne Corn
Specialist in Natural Resources Policy

The wolf was among the first animals protected under the Endangered Species Preservation Act, a predecessor to the current Endangered Species Act (ESA). In 1978 the gray wolf was listed as endangered in all of the conterminous 48 states except Minnesota, where it was listed as threatened. With the exception of experimental populations established in the 1990s, the protections for the gray wolf have been diminishing since that date, as wolf populations have increased in some areas. The use of distinct population segments (DPSs), a term created in the 1978 ESA amendments, has played a role in that reduced protection. DPSs allow vertebrate species to be divided into distinct groups, based on geography and genetic distinctions. 

ESA protection for DPSs has changed back-and-forth since the first DPSs—Western and Eastern—were proposed in 2003. In 2004, the U.S. Fish and Wildlife Service (FWS) determined that those DPSs no longer needed the protection of the ESA and so were delisted. The Western and Eastern DPS designations and delistings were nullified by courts. In 2007, FWS designated and delisted the Western Great Lakes DPS, and in early 2008, FWS designated and delisted the Northern Rocky Mountains DPS. However, courts found both delistings flawed and vacated the rulemaking. In December 2008 FWS returned the wolves in the Western Great Lakes and parts of the Northern Rocky Mountains areas to their former protected status, eliminating the DPSs. That same rulemaking redesignated wolves in south Montana, southern Idaho and all of Wyoming as "nonessential experimental populations," which they were prior to the DPS efforts. The rulemaking took effect on December 11, 2008, meaning it appears to be outside the scope of White House Chief of Staff Rahm Emanuel's memorandum of January 20, 2009, halting the effect of all non-final regulations pending further review. FWS published a notice to delist the Western Great Lakes DPS in April 2009, but was sued and returned the population to its previous status. Also in April 2009, FWS delisted the Northern Rockies population except for in Wyoming. 

This report analyzes the DPS designation process as it is applied to the gray wolf. It also examines experimental populations of wolves under the ESA and their protections. As part of its oversight responsibilities, Congress has conducted hearings on the Fish and Wildlife Service's application of science to endangered species.


Date of Report: April 28, 2010
Number of Pages: 19
Order Number: RL34238
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Nitrous Oxide from Agricultural Sources: Potential Role in Greenhouse Gas Emission Reduction and Ozone Recovery

Kelsi Bracmort
Analyst in Agricultural Conservation and Natural Resources Policy

Gases other than carbon dioxide accounted for nearly 15% of total U.S. greenhouse gas emissions in 2008, yet there has been minimal discussion of these other greenhouse gases in climate and energy legislative initiatives. Reducing emissions from non-carbon dioxide greenhouse gases, such as nitrous oxide (N2O), could deliver short-term climate change mitigation results as part of a comprehensive policy approach to combat climate change. 

Nitrous oxide is 310 times more potent than carbon dioxide in its ability to affect climate change; and moreover, results of a recent scientific study indicate that nitrous oxide is currently the leading ozone-depleting substance being emitted. Thus, legislation to restrict nitrous oxide emissions could contribute to both climate change protection and ozone recovery. 

The primary human source of nitrous oxide is agricultural soil management, which accounted for two-thirds of the N2O emissions reported in 2008 (approximately 216 million metric tons CO2 equivalent). One proposed strategy to lower N2O emissions is more efficient application of synthetic fertilizers. However, further analysis is needed to determine the economic feasibility of this approach as well as techniques to measure and monitor the adoption rate and impact of N2O emission reduction practices for agricultural soil management. 

As Congress considers legislation that would limit greenhouse gas emissions (both H.R. 2454 and S. 1733 would require that greenhouse gas emissions be reduced by 83% in 2050), among the issues being discussed is how to address emissions of non-CO2 greenhouse gases. Whether such emissions should be subject to direct regulation, what role EPA should play using its existing Clean Air Act authority, whether the sources of N2O should be included among the covered entities of a cap-and-trade system, whether N2O reductions should be considered offsets to be purchased by the covered entities of a cap-and-trade system, and what role USDA should play in any N2O reduction scheme are among the issues being discussed. How these issues are resolved will have important implications for agriculture, which has taken a keen interest in climate change legislation. .


Date of Report: May 3, 2010
Number of Pages: 12
Order Number: R40874
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The Endangered Species Act (ESA) in the111th Congress: Conflicting Values and Difficult Choices

Eugene H. Buck
Specialist in Natural Resources Policy

M. Lynne Corn
Specialist in Natural Resources Policy

Pervaze A. Sheikh
Specialist in Natural Resources Policy

Robert Meltz
Legislative Attorney

Kristina Alexander
Legislative Attorney

The Endangered Species Act (ESA; P.L. 93-205, 16 U.S.C. §§ 1531-1543) has been one of the more contentious environmental laws. This may stem from its strict substantive provisions, which can affect the use of both federal and nonfederal lands and resources. Under ESA, species of plants and animals (both vertebrate and invertebrate) can be listed as endangered or threatened according to assessments of their risk of extinction. Once a species is listed, powerful legal tools are available to aid its recovery and protect its habitat. ESA may also be controversial because dwindling species are usually harbingers of broader ecosystem decline. The most common cause of species listing is habitat loss. ESA is considered a primary driver of large-scale ecosystem restoration issues. 

The 111th Congress has considered whether to revoke ESA regulations promulgated in the waning days of the Bush Administration that would alter when federal agency consultation is required. In addition, legislation related to global climate change includes provisions that would allocate funds to the U.S. Fish and Wildlife Service's endangered species program and/or to related funds to assist species adaptation to climate change. Other major issues concerning ESA in recent years have included the role of science in decision-making, critical habitat (CH) designation, protection by and incentives for property owners, and appropriate protection of listed species, among others. 

The authorization for spending under ESA expired on October 1, 1992. The prohibitions and requirements of ESA remain in force, even in the absence of an authorization, and funds have been appropriated to implement the administrative provisions of ESA in each subsequent fiscal year. Proposals to reauthorize and extensively amend ESA were last considered in the 109th Congress, but none was enacted. No legislative proposals were introduced in the 110th Congress to reauthorize the ESA. 

In the first session of the 111th Congress, P.L. 111-8 contained language authorizing the Secretary of the Interior to withdraw or reissue (1) revisions to the ESA Section 7 consultation regulations promulgated by the Bush Administration and (2) a December 2008 special rule that outlined protections afforded polar bears. In addition, P.L. 111-11 included provisions (1) authorizing the implementation of the San Joaquin River Restoration Settlement, providing for the reintroduction of Chinook salmon, and (2) amending P.L. 106-392 to extend the authorizations for the Upper Colorado and San Juan River Basin endangered fish recovery programs through FY2023. P.L. 111-88 appropriated about $281 million for U.S. Fish and Wildlife Service endangered species and related programs for FY2010. 

This report discusses oversight issues and legislation introduced in the 111th Congress to address ESA implementation and management of endangered and threatened species.


Date of Report: April 30, 2010
Number of Pages: 28
Order Number: R40185
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Earthquakes: Risk, Detection, Warning, andResearch

Peter Folger
Specialist in Energy and Natural Resources Policy

The 1994 Northridge (CA) earthquake caused as much as $26 billion (in 2005 dollars) in damage and was one of the costliest natural disasters to strike the United States. The Federal Emergency Management Agency has estimated that earthquakes cost the United States over $5 billion per year. A hypothetical scenario for a magnitude 7.8 earthquake in southern California estimated a possibility of 1,800 fatalities and over $200 billion in economic losses. The January 12, 2010, magnitude 7.0 earthquake that struck Haiti only 15 miles from Port-au-Prince, the capital city, has caused an estimated 230,000 fatalities and 300,000 injuries. On February 27, 2010, a magnitude 8.8 earthquake occurred offshore of Chile and has caused massive damage, although far fewer fatalities than the Haiti earthquake. The Cascadia Subduction Zone megathrust fault, which stretches from southern British Columbia to northern California, has the potential to generate a massive earthquake and tsunami, similar to the Chilean earthquake, that could threaten Oregon, Washington, and northern California. 

The United States faces the possibility of large economic losses from earthquake-damaged buildings and infrastructure. California alone accounts for most of the estimated annualized earthquake losses for the nation, and with Oregon and Washington the three states account for nearly $4.1 billion (77%) of the U.S. total estimated annualized loss. A single large earthquake, however, can cause far more damage than the average annual estimate. 

An ongoing issue for Congress is whether the federally supported programs aimed at reducing U.S. vulnerability to earthquakes are an adequate response to the earthquake hazard. Under the National Earthquake Hazards Reduction Program (NEHRP), four federal agencies have responsibility for long-term earthquake risk reduction: the U.S. Geological Survey (USGS), the National Science Foundation (NSF), the Federal Emergency Management Agency (FEMA), and the National Institute of Standards and Technology (NIST). They variously assess U.S. earthquake hazards, send notifications of seismic events, develop measures to reduce earthquake hazards, and conduct research to help reduce overall U.S. vulnerability to earthquakes. 

Congress reauthorized NEHRP in 2004 (P.L. 108-360) through FY2009. Appropriations for NEHRP from FY2005 to FY2009 did not meet authorized levels; the total funding enacted was $613.2 million, approximately 68% of the total amount of $902.4 million authorized by P.L. 108- 360. The American Recovery and Reinvestment Act (ARRA; P.L. 111-5) provided some additional funding for earthquake activities under NEHRP through FY2010. In the 111th Congress, H.R. 3820 would reauthorize NEHRP through FY2014, authorizing total appropriations of $906 million over five years for the program, with 90% of the funding designated for the USGS and NSF, and the remainder for FEMA and NIST. The total authorized amounts are slightly greater than what was authorized by P.L. 108-360 over five years. If future appropriations match the funding levels authorized under H.R. 3820, these funds would exceed the total cumulative amounts actually appropriated between FY2005 and FY2009. 

What effect funding at the levels enacted through FY2009 under NEHRP has had on the U.S. capability to detect earthquakes and minimize losses after an earthquake occurs is not clear. It is also difficult to predict precisely how NEHRP reauthorized under H.R. 3820 would achieve a major goal of the bill: to reduce the loss of life and damage to communities and infrastructure through increasing the adoption of hazard mitigation measures. A perennial issue for Congress is whether activities under NEHRP can reduce the potential for catastrophic loss in the next giant earthquake to strike the United States.


Date of Report: April 19, 2010
Number of Pages: 31
Order Number: RL33861
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Earmarks Disclosed by Congress: FY2008-FY2010 Regular Appropriations Bills

Carol Hardy Vincent
Specialist in Natural Resources Policy

Jim Monke
Specialist in Agricultural Policy

In 2007, both the House and the Senate established new earmark transparency procedures. They provide for public disclosure of approved earmarks and the identification of their congressional sponsors. These procedures currently are contained in House Rule XXI, clause 9, and Senate Rule XLIV. Under both chambers' rules, an earmark is a provision in legislation or report language that is included primarily at the request of a Member, and provides, authorizes, or recommends a specific amount to an entity or to a specific state, locality, or congressional district. 

This report summarizes the earmarks disclosed for the 12 regular, annual appropriations bills for each of FY2008, FY2009, and FY2010. For these bills, a list of earmarks was typically included in the explanatory statement accompanying the final version of the bill under the heading "Disclosure of Earmarks and Congressionally Directed Spending Items." This report does not pertain to any earmarks disclosed in supplemental appropriations or authorizing legislation. 

This report directly analyzes the data in the earmark disclosure lists, without additions or deletions. For individual earmarks, the disclosures typically identify the federal agency, project name, amount, and requester. In some cases, other information also has been included, such as an account within an agency, or the purpose or location of the earmark. 

In FY2010, Congress identified 11,320 earmarks with a total value of $32.0 billion. Some appropriations bills account for more earmarks than others (Table 2). For instance, about fourfifths of the 11,320 earmarks in FY2010 are in five of the 12 appropriations bills. The Energy and Water Development and Related Agencies appropriations bill contains the greatest number of FY2010 earmarks—2,293, about 20% of the total number of earmarks. 

The distribution of the value of earmarks is more concentrated, with about $27.5 billion, or 86%, of the value of earmarks in four of the appropriations bills. The Military Construction and Veterans Affairs and Related Agencies appropriations bill contains the greatest value of FY2010 earmarks—$14.5 billion, about 45% of the total value. Some appropriations bills account for fewer earmarks but have a greater share of the value, or vice versa. 

House and Senate rules do not require congressional disclosure of presidentially requested earmarks. However, nine appropriations bills in FY2010 list the President as a requester, either solely or with a Member of Congress, for 2,039 earmarks worth $21.8 billion (18% of the total number and 68% of the total value of earmarks in the disclosure lists). It is possible that there are more presidential earmarks than those disclosed by Congress. There were 9,281 Member-only earmarks worth $10.2 billion (82% of the total number and 32% of the total value, Table 3). 

From FY2008 to FY2010, the total number of appropriations earmarks in all 12 bills decreased 12%, from 12,810 to 11,320. However, the total value of earmarks increased 11%, from $28.9 billion to $32.0 billion (Table 5). The percentage of the total appropriation that was earmarked decreased from 1.8% in FY2008 to 1.5% in FY2010. Excluding mandatory spending, the percentage of non-mandatory appropriations that were earmarked fell from 2.9% to 2.4%. Both the number and value of President-only earmarks increased since FY2008 (from 819 earmarks worth $4.2 billion in FY2008, to 1,265 earmarks worth $9.5 billion in FY2010; up 54% by number and 126% by value). Conversely, the number and value of Member-only earmarks decreased since FY2008, from 11,117 earmarks worth $12.5 billion in FY2008, to 9,281 earmarks worth $10.2 billion in FY2010, down 17% by number and 19% by value (Table 6). .


Date of Report: April 16, 2010
Number of Pages: 24
Order Number: R40976
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Forestry in the Next Farm Bill

Ross W. Gorte
Specialist in Natural Resources Policy

Forest management generally, as well as forest research and forestry assistance, have long been within the jurisdictions of the Agriculture Committees. Although most forestry programs are permanently authorized, forestry has usually been addressed in the periodic farm bills to reauthorize many agriculture programs. The 2008 farm bill (the Food, Conservation, and Energy Act of 2008, P.L. 110-246) contained a separate forestry title, with provisions establishing national priorities for forestry assistance; requiring statewide forest assessments and strategies; providing competitive funding for certain programs; creating new programs for open space conservation and for emergency reforestation; reauthorizing four existing programs; and prohibiting imports of illegally logged wood products, among other provisions. Forestry provisions were included in other titles as well—the conservation title revised the definition of conservation actions to include forestry activities for all conservation programs; the trade title required special reporting on softwood lumber imports; the energy title established two woody biomass energy programs; and the tax title included three provisions altering tax treatments for forests and landowners. 

Additional forestry issues have been suggested by various interests for inclusion in the next farm bill. Protocols for measuring, monitoring, and verifying forest carbon sequestration projects, which might qualify as offsets under existing or proposed regulatory schemes (e.g., regional programs or a national cap-and-trade system) or in voluntary carbon markets, could be included in the farm bill. Other ecosystem services—forest values that have not traditionally been sold in markets, such as clean air and water, wildlife habitats, and scenic beauty—were addressed in the 2008 farm bill, and Congress could extend, expand, alter, or terminate the existing ecosystem services program. Protecting communities from wildfire continues to be a priority for some, while controlling invasive species that threaten native forests is a priority for others. Congress could address programs for these purposes in the next farm bill. Also, use of woody biomass for renewable energy could be combined with wildfire protection and invasive species control, and the next farm bill could extend, expand, alter, or add to the woody biomass energy programs created in the 2008 farm bill and in other legislation. Funding to assist landowners to implement sustainable forestry practice is another issue; while forestry was included for all agriculture conservation programs in the 2008 farm bill, the previous sole forest-specific assistance program was not reauthorized. Finally, assisting forest-dependent communities in diversifying their economies has also been debated. .


Date of Report: April 29, 2010
Number of Pages: 9
Order Number: R41213
Price: $29.95

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The Endangered Species Act (ESA) in the111th Congress: Conflicting Values and Difficult Choices

Eugene H. Buck
Specialist in Natural Resources Policy

M. Lynne Corn
Specialist in Natural Resources Policy

Pervaze A. Sheikh
Specialist in Natural Resources Policy

Robert Meltz
Legislative Attorney

Kristina Alexander
Legislative Attorney

The Endangered Species Act (ESA; P.L. 93-205, 16 U.S.C. §§ 1531-1543) has been one of the more contentious environmental laws. This may stem from its strict substantive provisions, which can affect the use of both federal and nonfederal lands and resources. Under ESA, species of plants and animals (both vertebrate and invertebrate) can be listed as endangered or threatened according to assessments of their risk of extinction. Once a species is listed, powerful legal tools are available to aid its recovery and protect its habitat. ESA may also be controversial because dwindling species are usually harbingers of broader ecosystem decline. The most common cause of species listing is habitat loss. ESA is considered a primary driver of large-scale ecosystem restoration issues. 

The 111th Congress has considered whether to revoke ESA regulations promulgated in the waning days of the Bush Administration that would alter when federal agency consultation is required. In addition, legislation related to global climate change includes provisions that would allocate funds to the U.S. Fish and Wildlife Service's endangered species program and/or to related funds to assist species adaptation to climate change. Other major issues concerning ESA in recent years have included the role of science in decision-making, critical habitat (CH) designation, protection by and incentives for property owners, and appropriate protection of listed species, among others. 

The authorization for spending under ESA expired on October 1, 1992. The prohibitions and requirements of ESA remain in force, even in the absence of an authorization, and funds have been appropriated to implement the administrative provisions of ESA in each subsequent fiscal year. Proposals to reauthorize and extensively amend ESA were last considered in the 109th Congress, but none was enacted. No legislative proposals were introduced in the 110th Congress to reauthorize the ESA. 

In the first session of the 111th Congress, P.L. 111-8 contained language authorizing the Secretary of the Interior to withdraw or reissue (1) revisions to the ESA Section 7 consultation regulations promulgated by the Bush Administration and (2) a December 2008 special rule that outlined protections afforded polar bears. In addition, P.L. 111-11 included provisions (1) authorizing the implementation of the San Joaquin River Restoration Settlement, providing for the reintroduction of Chinook salmon, and (2) amending P.L. 106-392 to extend the authorizations for the Upper Colorado and San Juan River Basin endangered fish recovery programs through FY2023. P.L. 111-88 appropriated about $281 million for U.S. Fish and Wildlife Service endangered species and related programs for FY2010. 

This report discusses oversight issues and legislation introduced in the 111th Congress to address ESA implementation and management of endangered and threatened species.


Date of Report: April 23, 2010
Number of Pages: 28
Order Number: R40185
Price: $29.95

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The Pigford Case: USDA Settlement of a Discrimination Suit by Black Farmers

Tadlock Cowan
Analyst in Natural Resources and Rural Development

Jody Feder
Legislative Attorney

On April 14, 1999, Federal District Court Judge Paul L. Friedman approved a settlement agreement and consent decree resolving a class action discrimination suit (commonly known as the Pigford case) between the U.S. Department of Agriculture (USDA) and black farmers. The suit claimed that the agency had discriminated against black farmers on the basis of race and failed to investigate or properly respond to complaints from 1983 to 1997. The deadline for submitting a claim as a class member was September 12, 2000. Many voiced concern over the structure of the settlement agreement, the large number of applicants who filed late, and reported deficiencies in representation by class counsel. A provision in the 2008 farm bill (P.L. 110-246) permitted any claimant in the Pigford decision who had not previously obtained a determination on the merits of a Pigford claim to petition in civil court to obtain such a determination. A maximum of $100 million dollars was also authorized for new claims settlements. 

On February 18, 2010, Attorney General Holder and Secretary of Agriculture Vilsack announced a $1.25 billion settlement of these so-called Pigford II claims. The Administration included $1.15 billion in its FY2010 supplemental budget request for settlement costs. An amendment (S.Amdt. 3407) to H.R. 4213, the Tax Extenders Act of 2009, to authorize the funding failed on March 10, 2010. A provision in the settlement permitted the plaintiffs to void the settlement if Congress did not appropriate the $1.15 billion by March 31, 2010. Appropriators did not meet that deadline, although USDA Secretary Tom Vilsack sent letters in March to congressional leaders asking them to appropriate money for the settlement, saying that resolving cases of discrimination is a department priority. Because the settlement is clearly a priority of both the USDA and the White House, plaintiffs are unlikely to exercise their right to void the settlement in the near term. Unlike the original Pigford decision, the Pigford II settlement does not include a suggested settlement amount, although it does provide for higher payments to claimants who go through a more rigorous review process. A moratorium on foreclosures of most claimants' farms will be in place until after claimants have gone through the claims process. Payments to successful claimants may begin in the middle of 2011. 

This report highlights some of the events that led up to the Pigford class action suit and outlines the structure of the original settlement agreement. It also discusses the number of claims reviewed, denied, and awarded, and some of the issues raised by various parties.


Date of Report: April 21, 2010
Number of Pages: 10
Order Number: RS20430
Price: $29.95

Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.