Open Ocean Aquaculture

Harold F. Upton
Analyst in Natural Resources Policy

Eugene H. Buck
Specialist in Natural Resources Policy

Open ocean aquaculture is broadly defined as the rearing of marine organisms in exposed areas beyond significant coastal influence. Open ocean aquaculture employs less control over organisms and the surrounding environment than do inshore and land-based aquaculture, which are often undertaken in enclosures, such as ponds. When aquaculture operations are located beyond coastal state jurisdiction, within the U.S. Exclusive Economic Zone (EEZ; generally 3 to 200 nautical miles from shore), they are regulated primarily by federal agencies. Thus far, only a few aquaculture research facilities have operated in the U.S. EEZ. To date, all commercial aquaculture facilities have been sited in nearshore waters under state or territorial jurisdiction. 

Development of commercial aquaculture facilities in federal waters is hampered by an unclear regulatory process for the EEZ, and technical uncertainties related to working in offshore areas. Regulatory uncertainty has been identified by the Administration as the major barrier to developing open ocean aquaculture. Uncertainties often translate into barriers to commercial investment. Potential environmental and economic impacts and associated controversy have also likely contributed to slowing expansion. 

Proponents of open ocean aquaculture believe it is the beginning of the "blue revolution"—a period of broad advances in culture methods and associated increases in production. Critics raise concerns about environmental protection and potential impacts on existing commercial fisheries. Potential outcomes are difficult to characterize because of the diverse nature of potential operations and the lack of aquaculture experience in open ocean areas. 

On January 28, 2009, the Gulf of Mexico Fishery Management Council voted to approve a plan to issue aquaculture permits and regulate aquaculture in federal waters of the Gulf of Mexico. On September 3, 2009, the plan took effect because the Secretary of Commerce declined to oppose it within the required statutory period. Environmentalists and some fishing industry representatives have opposed the plan because of concerns related to environmental protection and potential negative effects on wild fish populations. Many who oppose the plan support a precautionary approach and development of national aquaculture standards. On September 8, 2009, H.R. 3534, the Consolidated Land, Energy, and Aquatic Resources Act of 2009, was introduced. Section 704 of the bill would have rescinded the authority of the Secretary of Commerce to develop or approve fishery management plans to permit or regulate offshore aquaculture. On July 30, 2010, H.R. 3534 was passed by the House, but the section related to offshore aquaculture was removed from the bill. H.R. 4363, the National Sustainable Offshore Aquaculture Act of 2009, introduced on December 16, 2009, would establish a regulatory system for offshore aquaculture in the U.S. Exclusive Economic Zone. S. 3417, the Research in Aquaculture Opportunity and Responsibility Act of 2010, introduced on May 25, 2010, would prohibit offshore aquaculture until three years after the submission of a report on the impacts of offshore aquaculture. 

This report discusses four general areas: (1) operational and business-related challenges; (2) potential economic impacts; (3) potential environmental impacts; and (4) the legal and regulatory environment. Significant questions remain about whether an appropriate mechanism exists for any federal agency to provide an open ocean aquaculture lease with the necessary property rights to begin construction and operation. Policy makers and regulators will be challenged to weigh the needs of a developing industry against potential environmental and social impacts.


Date of Report: August 9, 2010
Number of Pages: 24
Order Number: RL32694
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Land and Water Conservation Fund: Overview, Funding History, and Current Issues

Carol Hardy Vincent
Specialist in Natural Resources Policy

The Land and Water Conservation Fund (LWCF) Act of 1965 was enacted to help preserve, develop, and assure access to outdoor recreation facilities to strengthen the health of U.S. citizens. The law created the Land and Water Conservation Fund in the U.S. Treasury as a funding source to implement its outdoor recreation goals. 

The LWCF has been the principal source of monies for land acquisition for outdoor recreation by the four federal agencies—the National Park Service, Bureau of Land Management, Fish and Wildlife Service, and Forest Service. Congress typically identifies which areas are to be acquired with the funds it provides. The LWCF also funds a matching grant program to assist states in recreational planning, acquiring recreational lands and waters, and developing outdoor recreational facilities. The states award their grant money through a competitive selection process based on statewide recreation plans and establish their own priorities and criteria. Finally, in recent years, beginning in FY1998, LWCF has been used to fund an array of other federal programs with related purposes. 

The LWCF is authorized to accumulate $900 million annually from designated sources, with most of the money derived from oil and gas leasing in the Outer Continental Shelf. Congress determines the level of appropriations each year, and yearly appropriations have fluctuated widely since the origin of the program. Of the total revenues that have accrued throughout the history of the program ($32.6 billion), less than half have been appropriated ($15.5 billion). FY2001 marked the highest funding ever, with appropriations exceeding the authorized level by reaching nearly $1 billion. For FY2010, the most recent fiscal year, the appropriation was $450.4 million. 

The $15.5 billion appropriated throughout the history of the program has been unevenly allocated among federal land acquisition (63%), the state grant program (26%), and other programs (11%). Similarly, federal land acquisition funds have been allocated unevenly among the four federal agencies. More recent legislation (P.L. 109-432) provided that a portion of revenues from certain OCS leasing are provided to the state grant program. These funds are to supplement any funds appropriated from LWCF. 

There is a difference of opinion as to the appropriate level of funds for LWCF and how those funds should be used. Current congressional issues include deciding the amount to appropriate for land acquisition and identifying which lands should be acquired; deciding the level of funding for the state grant program; and determining which, if any, other programs to fund from the LWCF. The primary context for debating these issues is Interior appropriations legislation. Other issues of current debate include whether the LWCF should be permanently appropriated at the authorized level of $900 million, and whether revenues from additional activities should be directed to the LWCF. .


Date of Report: August 13, 2010
Number of Pages: 15
Order Number: RL33513
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Biomass Crop Assistance Program (BCAP): Status and Issues

Megan Stubbs
Analyst in Agricultural Conservation and Natural Resources Policy

The Food, Conservation, and Energy Act of 2008 (P.L. 110-246, 2008 farm bill) created the Biomass Crop Assistance Program (BCAP). The two main purposes of BCAP are (1) to support the establishment and production of eligible crops for conversion to bioenergy in selected areas, and (2) to assist agricultural and forest land owners and operators with collection, harvest, storage, and transportation of eligible material for use in a biomass conversion facility. BCAP is intended to assist with the bioenergy industry's hurdle of continuous biomass availability. 

The U.S. Department of Agriculture's (USDA's) Farm Service Agency (FSA) implemented one portion of BCAP—the Collection, Harvest, Storage, and Transportation (CHST) matching payment program—on June 11, 2009, through a Notice of Funds Availability in the Federal Register. The partial implementation created a possible unintended consequence of market competition for wood shavings, wood chips, sawdust, and other wood "scraps" between traditional purchasers—namely landscapers and particleboard manufactures—and facilities that convert biomass to energy. The issuance of the BCAP proposed rule on February 8, 2010, suspended CHST program enrollment and proposed rules for the implementation of the remainder of the BCAP program. 

According to USDA's proposed rule, the two main components of BCAP are split into two forms of payments: annual and establishment payments, which share in the cost of establishing eligible biomass crops and maintaining production; and matching payments, which share in the cost of the collection, harvest, storage, and transportation of biomass to an eligible biomass conversion facility. The payments have different eligibility and sign-up requirements, payment rates, and contract lengths. Funding for the program is mandatory through the Commodity Credit Corporation (CCC) at "such sums as necessary" through FY2012. 

While BCAP remains to be fully implemented, concerns regarding eligibility, sustainability, and funding continue to be discussed. These issues could shape future congressional action on the program in the context of budgetary measures and possible reauthorization in the next farm bill.


Date of Report: August 13, 2010
Number of Pages: 17
Order Number: R41296
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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 indications that Asian carp may be present upstream of the barriers and 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 the Mississippi River basin via the CAWS. Michigan's renewed motion for a preliminary injunction was also denied by the Supreme Court on March 22, 2010. In response to the Supreme Court's denial, Michigan (along with Wisconsin, Minnesota, Ohio, and Pennsylvania) filed a complaint in the U.S. District Court, Northern District of Illinois against the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago on July 19, 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: August 6, 2010
Number of Pages: 27
Order Number: R41082
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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 indications that Asian carp may be present
upstream of the barriers and 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 the
Mississippi River basin via the CAWS. Michigan's renewed motion for a preliminary injunction
was also denied by the Supreme Court on March 22, 2010. In response to the Supreme Court's
denial, Michigan (along with Wisconsin, Minnesota, Ohio, and Pennsylvania) filed a complaint in
the U.S. District Court, Northern District of Illinois against the U.S. Army Corps of Engineers
and the Metropolitan Water Reclamation District of Greater Chicago on July 19, 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: August 6, 2010
Number of Pages: 27
Order Number: R41082
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Environmental Quality Incentives Program (EQIP): Status and Issues

Megan Stubbs
Analyst in Agricultural Conservation and Natural Resources Policy

The Environmental Quality Incentives Program (EQIP) is a voluntary program that provides
farmers with financial and technical assistance to plan and implement soil and water conservation
practices. EQIP is the largest agriculture conservation financial assistance program for working
lands. EQIP was first authorized in 1996 and was most recently revised by Section 2501 of the
Food, Conservation, and Energy Act of 2008 (P.L. 110-246, the 2008 farm bill). It is a mandatory
spending program (i.e., not subject to annual appropriations) and is administered by the U.S.
Department of Agriculture's (USDA's) Natural Resources Conservation Service (NRCS). Funding
is currently authorized to grow to $1.75 billion in FY2012. Eligible land includes cropland,
rangeland, pasture, non-industrial private forestland, and other land on which resource concerns
related to agricultural production could be addressed through an EQIP contract.


With the 111th Congress facing tighter budget constraints, EQIP could face similar challenges
with a potential reduction in mandatory funding levels and a continuing backlog of unfunded
applications. A change in income limitations along with a new waiver created in the 2008 farm
bill could also raise issues for the program. EQIP will also continue to face challenges in
measuring environmental and program accomplishments.


Date of Report: August 13, 2010
Number of Pages: 13
Order Number: R40197
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Geoengineering: Governance and Technology Policy

Kelsi Bracmort
Analyst in Agricultural Conservation and Natural Resources Policy

Richard K. Lattanzio
Analyst in Environmental Policy

Emily C. Barbour
Legislative Attorney

As a participant in several international agreements on climate change, the United States has joined with other nations to express concern about climate change. However, at the national level the United States has not yet developed a comprehensive climate change policy. In the absence of a comprehensive policy direction, technological advances are creating alternatives to the traditional approaches to climate change (mitigation and adaptation). If deployed, these new technologies could modify the Earth's climate on a large scale. Moreover, these new technologies may become available to foreign governments and entities in the private sector to use unilaterally—without authorization from the United States government or an international treaty. 

The term "geoengineering" describes this array of technologies that aim, through large-scale and deliberate modifications of the Earth's energy balance, to reduce temperatures and counteract anthropogenic climate change. Most of these technologies are at the conceptual and research stages, and their effectiveness at reducing global temperatures has yet to be proven. Moreover, very few studies have been published that document the cost, environmental effects, sociopolitical impacts, and legal implications of geoengineering. If geoengineering technologies were to be deployed, they are expected to have the potential to cause significant transboundary effects. 

In general, geoengineering technologies are categorized as either a carbon dioxide removal (CDR) method or a solar radiation management (SRM) method. CDR methods address the warming effects of greenhouse gases by removing carbon dioxide (CO2) from the atmosphere. CDR methods include ocean fertilization, and carbon capture and sequestration. SRM methods address climate change by increasing the reflectivity of the Earth's atmosphere or surface. Aerosol injection and space-based reflectors are examples of SRM methods. SRM methods do not remove greenhouse gases from the atmosphere, but can be deployed faster with relatively immediate global cooling results compared to CDR methods. 

In addition to seeking an understanding of the science behind the different geoengineering technologies, policymakers are considering policies and strategies for addressing geoengineering at the national and international levels. To date, there is limited federal involvement in, or oversight of, geoengineering. However, some states as well as some federal agencies, notably the Environmental Protection Agency, Department of Energy, Department of Agriculture, and the Department of Defense, have taken actions related to geoengineering research or projects. At the international level, there is no international agreement or organization governing the full spectrum of possible geoengineering activities. Nevertheless, provisions of many international agreements, including those relating to climate change, maritime pollution, and air pollution, would likely inform the types of geoengineering activities that state parties to these agreements might choose to pursue. 

With the possibility that geoengineering technologies may be developed and climate change remains an issue of global concern, policymakers may determine whether geoengineering is an issue that warrants attention at either the federal or international level. If so, policymakers will also need to consider whether geoengineering can be effectively addressed by amendments to existing laws and international agreements or, alternatively, whether new laws and international treaties would need to be developed.


Date of Report: August 16, 2010
Number of Pages: 43
Order Number: R41371
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Garcia v. Vilsack: A Policy and Legal Analysis of a USDA Discrimination Case

Jody Feder
Legislative Attorney

Tadlock Cowan
Analyst in Natural Resources and Rural Development

The U.S. Department of Agriculture (USDA) has long been accused of unlawfully discriminating against minority and female farmers in the management of its various programs, particularly in its Farm Service Agency loan programs. While USDA has taken concrete steps to address these allegations of discrimination, the results of these efforts have been criticized by some. Meanwhile, some minority and female farmers who have alleged discrimination by USDA have filed various lawsuits under the Equal Credit Opportunity Act (ECOA) and the Administrative Procedure Act (APA). Pigford v. Glickman, filed on behalf of African-American farmers, is probably the most widely known. 

In October 2000, a group of Hispanic farmers filed a similar lawsuit against USDA. The case, Garcia v. Vilsack, involves allegations that USDA unlawfully discriminated against all similarly situated Hispanic farmers with respect to credit transactions and disaster benefits in violation of the ECOA, which prohibits, among other things, race, color, and national origin discrimination against credit applicants. The suit further claims that USDA violated the ECOA and the APA by systematically failing to investigate complaints of discrimination, as required by USDA regulations. Because the Garcia case has been tied up in litigation for nine years, there has been no decision on the merits of certain claims, nor has any compensation been paid to any of the plaintiffs. During the lengthy course of litigation, however, there have been numerous rulings on procedural and substantive issues that are discussed in detail in this report. 

There are several possible options for Congress to consider if it wishes to respond to the Garcia dispute. On the one hand, Congress could choose not to intervene in the Garcia case, leaving the ECOA as the standing legislative remedy. On the other hand, Congress could create a specific fund to aid farmers who are deemed to have been victims of USDA. Such a response would be similar to other compensation programs established by Congress to assist victims of certain specific circumstances (e.g., negligence, terrorism, and "acts of God"). Congress might also choose to adopt the model used in the consent decree in the Pigford case, which defined eligible claimants and established a system of notice, claims submission, consideration, and review. Although Congress was not involved in the creation of the compensation system established under the consent decree, Congress did make an additional $100 million available in the 2008 farm bill (P.L. 110-246) to settle claims of class participants who did not receive a decision on the merits of their claims against USDA. Congress could also choose to have the Garcia case considered by the U.S. Court of Federal Claims as a non-binding congressional reference case.


Date of Report: August 2, 2010
Number of Pages: 17
Order Number: R40988
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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: August 4, 2010
Number of Pages: 29
Order Number: R40185
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Drilling in the Great Lakes: Background and Issues

Pervaze A. Sheikh, Coordinator
Specialist in Natural Resources Policy

Marc Humphries
Analyst in Energy Policy

Jonathan L. Ramseur
Specialist in Environmental Policy

Adam Vann
Legislative Attorney

Drilling for oil and gas in or under the Great Lakes has generated interest among Great Lakes stakeholders, states, and Congress. Some opposed to drilling are concerned about the potential environmental, economic, and public health consequences. They contend that drilling will raise the risks of oil spills, hazardous gas leaks, and pollution that may harm lakeside residents and the Great Lakes ecosystem. Proponents of oil and gas drilling contend that drilling will increase local and regional tax revenues and employment, increase domestic energy production, and not be an environmental problem because of new technologies that lower the risks of oil spills and other accidents. 

Issuing federal or state permits for new drilling operations under the U.S. portions of the Great Lakes was banned in the Energy Policy Act of 2005 (P.L. 109-58, §386). Specifically, the provision enacts a permanent ban on the issuance of federal or state permits for new directional, slant, or offshore drilling in or under the Great Lakes. Congress had enacted a temporary ban on any new federal and state permits for drilling under the Great Lakes in 2001 (P.L. 107-66; Title V, §503) and extended it to 2007. This temporary ban was in addition to several state bans on drilling in or under the Great Lakes. In contrast to U.S. law, Canadian law permits onshore gas and oil drilling under the Great Lakes, and offshore gas drilling in the Great Lakes. 

Some contend that the decision of whether to ban drilling is a state responsibility. The states have the authority to regulate the use of Great Lakes resources within their territory and have instituted a variety of approaches for dealing with oil and gas drilling. Yet Congress has broad authority to regulate both the navigable waters and oil and gas development. Some critics of federal action to prohibit drilling say that while Congress may have the authority to regulate or ban oil and gas drilling in or under the Great Lakes, such action might also constitute a "taking" of property for which just compensation would be required. 

This report provides background information on historical and current drilling practices in the Great Lakes, and statistics on oil and natural gas production by Canada and the United States, where data are available. It describes state laws regarding drilling in the Great Lakes and analyzes the environmental, socioeconomic, and legal aspects of drilling in or under the Great Lakes.


Date of Report: July 29, 2010
Number of Pages: 22
Order Number: RL34741
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Cellulosic Biofuels: Analysis of Policy Issues for Congress

Kelsi Bracmort
Analyst in Agricultural Conservation and Natural Resources Policy

Randy Schnepf
Specialist in Agricultural Policy

Megan Stubbs
Analyst in Agricultural Conservation and Natural Resources Policy

Brent D. Yacobucci
Specialist in Energy and Environmental Policy

Cellulosic biofuels are produced from cellulose (fibrous material) derived from renewable biomass. They are thought by many to hold the key to increased benefits from renewable biofuels because they are made from potentially low-cost, diverse, non-food feedstocks. Cellulosic biofuels could also potentially decrease the fossil energy required to produce ethanol, resulting in lower greenhouse gas emissions. 

Cellulosic biofuels are produced on a very small scale at this time—significant hurdles must be overcome before commercial-scale production can occur. The renewable fuels standard (RFS), a major federal incentive, mandated the use of 100 million gallons per year (mgpy) of cellulosic biofuels in 2010. After 2015, most of the increase in the RFS is intended to come from cellulosic biofuels, and by 2022, the mandate for cellulosic biofuels will be 16 billion gallons. Whether these targets can be met is uncertain, and on March 26, 2010, the Environmental Protection Agency issued a final rule that lowers the 2010 cellulosic biofuel mandate to 6.5 million gallons. Research is ongoing, and the cellulosic biofuels industry may be on the verge of rapid expansion and technical breakthroughs. However, at this time, only a few small refineries are scheduled to begin production in 2010, with an additional nine expected to commence production by 2013 for a total output of 389 mgpy, compared with an RFS requirement of 500 mgpy in 2012 (a year earlier). 

The federal government, recognizing the risk inherent in commercializing this new technology, has provided loan guarantees, grants, and tax credits in an effort to make the industry competitive by 2012. In particular, the Food, Conservation, and Energy Act of 2008 (the 2008 farm bill, P.L. 110-246) supports the nascent cellulosic industry through authorized research programs, grants, and loans exceeding $1 billion. The enacted farm bill also contains a production tax credit of $1.01 per gallon for ethanol produced from cellulosic feedstocks. Private investment, in many cases by oil companies, also plays a major role in cellulosic biofuels research and development. 

Three challenges must be overcome if the RFS is to be met. First, cellulosic feedstocks must be available in large volumes when needed by refineries. Second, the cost of converting cellulose to ethanol or other biofuels must be reduced to a level to make it competitive with gasoline and corn-starch ethanol. Third, the marketing, distribution, and vehicle infrastructure must absorb the increasing volumes of renewable fuel, including cellulosic fuel mandated by the RFS. 

Congress will continue to face questions about the appropriate level of intervention in the cellulosic industry as it debates both the risks in trying to pick the winning technology and the benefits of providing start-up incentives. The current tax credit for cellulosic biofuels is set to expire in 2012, but its extension may be considered during the 111th Congress. Congress may continue to debate the role of biofuels in food price inflation and whether cellulosic biofuels can alleviate its impacts. Recent congressional action on cellulosic biofuels has focused on the definition of renewable biomass eligible for the RFS, which is considered by some to be overly restrictive. To this end, legislation has been introduced to expand the definition of renewable biomass eligible under the RFS.


Date of Report: July 28, 2010
Number of Pages: 26
Order Number: RL34738
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Commercial Fishery Disaster Assistance

Harold F. Upton
Analyst in Natural Resources Policy

Disaster relief may be provided by the federal government to assist the fishing industry when it is affected by a commercial fishery failure. A commercial fishery failure occurs when fishermen endure economic hardships resulting from fish population declines or other disruptions to the fishery. The Department of Commerce can provide disaster assistance under Sections 308(b) and 308(d) of the Interjurisdictional Fisheries Act (16 U.S.C. § 4107), as amended, and Sections 312(a) and 315 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C § 1861). The National Marine Fisheries Service plays a central role in determining whether a commercial fishery failure has occurred and in allocating federal funding to states and affected fishing communities. Congress plays a pivotal role by appropriating funds and providing oversight of the process.

Fisheries are subject to environmental variability that may affect the fishery resource and/or commercial infrastructure such as boats, shoreside processing, and ports. Since 1994, federal fishery failures have been declared on 29 occasions and nearly $827 million in federal funding has been appropriated for fishery disaster relief. Funds have been allocated to fisheries of the North Pacific, Pacific Northwest, Gulf of Mexico, and the East Coast. Recent cases include Gulf of Mexico fisheries, the Chesapeake Bay soft shell blue crab fishery, the West Coast salmon troll fishery, New England shellfish fisheries, Puget Sound sockeye salmon fisheries, and the Yukon River Chinook salmon fishery. The most recent fishery failure was declared because of harm to Gulf of Mexico fisheries from the Deepwater Horizon oil spill.

Direct federal financial assistance has been provided to fishermen and fishing communities in the form of grants, job retraining, employment, and low interest loans. Assistance has also included fishery data collection, resource restoration, research, and fishing capacity reduction programs to prevent or lessen the effects of future disruptions to fisheries. However, critics contend that disaster assistance programs often fall short of expectations because sometimes funds are not disbursed in a timely manner, ambiguities complicate the definition of a fishery failure, relief may not be integrated with long-term fishery management objectives, and funds may not reach the people who are in the greatest need of assistance. The National Oceanic and Atmospheric Administration recently proposed regulations to clarify and interpret the fishery disaster assistance provisions of the Magnuson-Stevens Fishery Conservation and Management Act and the Interjurisdictional Fisheries Act. .


Date of Report: July 29, 2010
Number of Pages: 20
Order Number: RL34209
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Coordination of Federal Water Research: Legislative Issues

Nicole T. Carter
Specialist in Natural Resources Policy

H.R. 1145, the National Water Research and Development Initiative Act of 2009, would formally establish a federal interagency committee to coordinate federal water research. Federal water research currently averages roughly $700 million annually.

The proposed interagency committee, with input from an advisory committee, would develop a four-year plan for priority federal research topics, then require the President to annually report to Congress on progress in achieving the plan's research outcomes. A version of the committee, the Subcommittee on Water Availability and Quality (SWAQ), which was not created by statute, has been operating since 2003 within the White House Office of Science and Technology Policy (OSTP) as part of the National Science and Technology Council (NSTC). The bill also would establish a National Water Initiative Coordination Office that would function as a clearinghouse for technical and programmatic information, support the interagency committee, and disseminate the findings and recommendations of the interagency committee.

As passed by the House, H.R. 1145 would authorize $10 million over five years for improving coordination of water resources research and related outreach activities with the public and research institutions. The bill is focused on improving coordination in the establishment of agency research agendas, increasing the transparency of water research budgeting, and reporting on progress toward research outcomes specified in the bill. H.R. 1145 would not increase the authorized funding levels for performing federal research activities.

Water research is conducted in numerous federal agencies because water plays many different roles in the economy, public health, and ecosystems. Many of the issues facing the nation's water resources are cross-cutting, such as climate change and the energy-water nexus (e.g., the role of water in producing fuels and electricity). Drivers for improved coordination include an interest in more effectively addressing these complicated water topics, as well as interest in avoiding duplication, facilitating exchange of results, and having a more focused research strategy. Technological advances, events, and climate change also are increasing the role of some agencies, which previously were less engaged, in performing and using water resources research.

A concern with more coordination is that, if enacted, the bill may result in a shift in research funding away from some current research topics. Specifically, some stakeholders may be concerned that, unless additional funds are made available for water research, the focus on technology and water supply in H.R. 1145 may move research funds away from water quality and research supporting agencies' regulatory roles. During the House Science Committee markup, research outcomes for the plan were added that address water quality topics. Another concern is whether some of the bill's provisions as passed by the House call for research, programs, or studies that may partially duplicate current research. Whether a more effective portfolio of water research can be achieved through the transparency and information pursued in H.R. 1145 (without increased research and demonstration funding) remains uncertain.


Date of Report: July 28, 2010
Number of Pages: 9
Order Number: R40958
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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). H.R. 5892, the Water Resources Development Act of 2010, was ordered to be reported on July 29, 2010. The Senate Environment and Public Works Committee has initiated assembly of a WRDA bill. 

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 floodfighting 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: July 29, 2010
Number of Pages: 18
Order Number: R41243
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Ocean Commissions: Ocean Policy Review and Outlook

Harold F. Upton
Analyst in Natural Resources Policy

Eugene H. Buck
Specialist in Natural Resources Policy

In 2003 and 2004, the U.S. Commission on Ocean Policy and the Pew Oceans Commission made numerous recommendations for changing U.S. ocean policy and management. The 109th Congress reauthorized the Magnuson-Stevens Fishery Conservation and Management Act (P.L. 109-479), incorporating provisions recommended by both commissions, and authorized the Marine Debris Research, Prevention, and Reduction Act (P.L. 109-449). Several bills encompassing a broad array of cross-cutting concerns such as ocean exploration; ocean and coastal observing systems; federal organization and administrative structure; and ocean and coastal mapping were considered, but not acted on during the 110th Congress.

Identification of the need for a comprehensive national ocean policy can be traced back to 1966, when a presidential Commission on Marine Science, Engineering, and Resources was established (called the Stratton Commission). In 1969, the commission provided recommendations that led to reorganizing federal ocean programs and establishing the National Oceanic and Atmospheric Administration (NOAA). By the late 1980s, a number of influential voices had concluded that U.S. ocean management remained fragmented and was characterized by a confusing array of laws, regulations, and practices. After repeated attempts, the 106th Congress enacted legislation to establish a U.S. Commission on Ocean Policy (P.L. 106-256). Earlier in 2000, the Pew Oceans Commission, an independent group, was established by the Pew Charitable Trusts to conduct a national dialogue on restoring and protecting living marine resources in U.S. waters.

In June 2003, the Pew Commission released its final report, America's Living Oceans: Charting a Course for Sea Change, outlining a national agenda for protecting and restoring the oceans. In September 2004, the U.S. Commission published, An Ocean Blueprint for the 21st Century, its final report with 212 recommendations on a coordinated and comprehensive national ocean policy. On December 17, 2004, the Bush Administration submitted to Congress the U.S. Ocean Action Plan, its formal response to the recommendations of the U.S. Commission on Ocean Policy. The U.S. Commission on Ocean Policy and the Pew Oceans Commission established the Joint Ocean Commission Initiative in early 2005 to collaborate on a number of key recommendations of both reports. The Joint Ocean Commission has remained active in advancing these recommendations to Congress and the Administration.

In June 2009, the Obama Administration established an Ocean Policy Task Force to develop a national ocean policy. On September 10, 2009, the task force released the Interim Report of the Interagency Ocean Policy Task Force, which includes national ocean policy priorities, a governance structure for interagency coordination, and an implementation strategy. On December 9, 2009, the task force released the Interim Framework for Effective Coastal and Marine Spatial Planning, which recommends a regional approach to marine spatial planning.

The 111th Congress is continuing to consider ocean policy and management recommendations of the two commission reports. Comprehensive changes in ocean governance and administrative structure are proposed in the Oceans Conservation, Education, and National Strategy for the 21st Century Act (H.R. 21) and the National Oceans Protection Act of 2009 (S. 858). However, most congressional activity has focused on specific topics. Title XII of the Omnibus Public Land Management Act of 2009 (P.L. 111-11) included subtitles that address ocean exploration, ocean and coastal mapping, ocean and coastal integrated observation, ocean acidification research and monitoring, and coastal and estuarine land conservation.


Date of Report: July 20, 2010
Number of Pages: 18
Order Number: RL33603
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Rare Earth Elements: The Global Supply Chain

Marc Humphries
Analyst in Energy Policy

The concentration of production of rare earth elements (REEs) outside the United States raises the important issue of supply vulnerability. REEs are used for new energy technologies and national security applications. Is the United States vulnerable to supply disruptions of REEs? Are these elements essential to U.S. national security and economic well-being?

There are 17 rare earth elements (REEs), 15 within the chemical group called lanthanides, plus yttrium and scandium. The lanthanides consist of the following: lanthanum, cerium, praseodymium, neodymium, promethium, samarium, europium, gadolinium, terbium, dysprosium, holmium, erbium, thulium, ytterbium, and lutetium. Rare earths are moderately abundant in the earth's crust, some even more abundant than copper, lead, gold, and platinum. While more abundant than many other minerals, REE are not concentrated enough to make them easily exploitable economically. The United States was once self-reliant in domestically produced REEs, but over the past 15 years has become 100% reliant on imports, primarily from China, because of lower-cost operations.

There is no rare earth mine production in the United States. U.S.-based Molycorp operates a separation plant at Mountain Pass, CA, and sells the rare earth concentrates and refined products from previously mined above-ground stocks. Neodymium, praseodymium, and lanthanum oxides are produced for further processing but these materials are not turned into rare earth metal in the United States.

Some of the major end uses for rare earth elements include use in automotive catalytic converters, fluid cracking catalysts in petroleum refining, phosphors in color television and flat panel displays (cell phones, portable DVDs, and laptops), permanent magnets and rechargeable batteries for hybrid and electric vehicles, and generators for wind turbines, and numerous medical devices. There are important defense applications, such as jet fighter engines, missile guidance systems, antimissile defense, and space-based satellites and communication systems.

World demand for rare earth elements is estimated at 134,000 tons per year, with global production around 124,000 tons annually. The difference is covered by previously mined aboveground stocks. World demand is projected to rise to 180,000 tons annually by 2012, while it is unlikely that new mine output will close the gap in the short term. New mining projects could easily take 10 years to reach production. In the long run, however, the USGS expects that global reserves and undiscovered resources are large enough to meet demand.

Legislative proposals H.R. 4866 (Coffman) and S. 3521(Murkowski) have been introduced to support domestic production of REEs, because of congressional concerns over access to rare earth raw materials and downstream products used in many national security applications and clean energy technologies.


Date of Report: July 28, 2010
Number of Pages: 17
Order Number: R41347
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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: July 23, 2010
Number of Pages: 29
Order Number: R40185
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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: July 23, 2010
Number of Pages: 36
Order Number: R40172
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