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Wednesday, June 30, 2010

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 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: June 25, 2010
Number of Pages: 26
Order Number: R41082
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Tuesday, June 29, 2010

Reauthorizing the Secure Rural Schools and Community Self-Determination Act of 2000


Ross W. Gorte
Specialist in Natural Resources Policy

Many counties are compensated for the tax-exempt status of federal lands. Counties with national forest lands and with certain Bureau of Land Management lands have historically received a percentage of agency revenues, primarily from timber sales. However, timber sales have declined substantially—by more than 90% in some areas. Thus, Congress enacted the Secure Rural Schools and Community Self-Determination Act of 2000 (SRS; P.L. 106-393) as a temporary, optional program of payments based on historic, rather than current, revenues.

SRS expired at the end of FY2006. Congressional debates over reauthorization considered the basis and level of compensation (historical, tax equivalency, etc.); the source of funds (receipts, a new tax or revenue source, etc.); the authorized and required uses of the payments; interaction with other compensation programs (notably Payments in Lieu of Taxes); and the duration of any changes (temporary or permanent). In addition, legislation with mandatory spending raises policy questions about increasing the deficit; budget rules to restrain deficit spending impose a procedural barrier to such legislation, generally requiring offsets by additional receipts or declines in other mandatory spending.

Several proposals to extend, modify, and/or phase out the SRS payment system were considered in the 110th Congress. One approach was a four-year extension with declining payment levels and a modified formula to shift funding toward areas with low historic receipts but substantial federal lands; such an extension passed the Senate in early 2007, in the Emergency Supplemental Appropriations Act, but was deleted in the conference agreement. Instead, a one-year extension was enacted, while Congress continued to debate the issues. In 2008, the Senate included a fouryear extension, with declining payments, a modified formula, and transition payments for certain areas, in the Emergency Economic Stabilization Act (H.R. 1424), which the House agreed to and the President signed into law (P.L. 110-343) on October 3, 2008.

With the pending expiration of SRS payments, county compensation is again the subject of congressional debates. The modified formula and declining payments of SRS expire at the end of FY2011, and the transition payments are only authorized through FY2010. Thus the eight states eligible for transition payments—California, Louisiana, Oregon, Pennsylvania, South Carolina, South Dakota, Texas, and Washington—could face substantially lower payments for FY2011, and these states and additional areas could see further declines if SRS is not extended or a substitute is not enacted. To date, no legislative action has occurred in the 111th Congress. Nonetheless, Congress is likely to discuss many of the same issues that were debated in 2006-2008.


Date of Report: June 24, 2010
Number of Pages: 17
Order Number: R41303
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U.N. Convention on the Law of the Sea: Living Resources Provisions


Eugene H. Buck
Specialist in Natural Resources Policy

The United Nations Convention on the Law of the Sea (LOS Convention) was agreed to in 1982, but the United States never became a signatory nation. The Senate Committee on Foreign Relations reported the LOS Convention on December 19, 2007. The Senate may choose to address the ambiguities of the LOS Convention with its power to make declarations and statements as provided for in Article 310 of the LOS Convention. Such declarations and statements can be useful in promulgating U.S. policy and putting other nations on notice of U.S. interpretation of the LOS Convention.

In the 111th Congress, Secretary of State Hillary Clinton, at her confirmation hearing before the Senate Committee on Foreign Affairs on January 13, 2009, acknowledged that U.S. accession to the LOS Convention would be an Obama Administration priority. Later in this confirmation hearing, Senator John Kerry, the committee chair, confirmed that the LOS Convention would also be a committee priority. However, no action was taken on the LOS Convention during the first session of the 111th Congress.

A possible benefit of U.S. ratification would be the international community's anticipated positive response to such U.S. action. In addition, early U.S. participation in the development of policies and practices of the International Tribunal for the Law of the Sea, the Commission on the Limits of the Continental Shelf, and the International Seabed Authority could help to forestall future problems related to living marine resources. On the other hand, some U.S. interests view U.S. ratification as potentially complicating enforcement of domestic marine regulations, and remain concerned that the LOS Convention's language concerning arbitrary refusal of access to surplus (unallocated) living resources might be a potential source of conflict (in addition to concerns about other provisions of the Convention). These uncertainties reflect the absence of any comprehensive assessment of the social and economic impacts of LOS implementation by the United States.

This report describes provisions of the LOS Convention relating to living marine resources and discusses how these provisions comport with current U.S. marine policy. As presently understood and interpreted, these provisions generally appear to reflect current U.S. policy with respect to living marine resource management, conservation, and exploitation. Based on these interpretations, they are generally not seen as imposing significant new U.S. obligations, commitments, or encumbrances, while providing several new privileges, primarily related to participation in commissions developing international ocean policy. No new domestic legislation appears to be required to implement the living resources provisions of the LOS Convention.


Date of Report: June 15, 2010
Number of Pages: 14
Order Number: RL32185
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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: June 22, 2010
Number of Pages: 22
Order Number: R41296
Price: $29.95

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Friday, June 25, 2010

Outer Continental Shelf Moratoria on Oil and Gas Development


Curry L. Hagerty
Specialist in Energy and Natural Resources Policy

Moratoria provisions for the outer continental shelf (OCS), enacted as part of the Department of the Interior appropriations over 26 years, prohibited federal spending on oil and gas development in certain locations and for certain activities. These annual congressional moratoria expired on September 30, 2008. While the expiration of the legislative restrictions does not make leasing and drilling permissible in all offshore areas, it is a significant development in conjunction with other changes in offshore leasing activity. Change in moratoria policy signals a shift that may affect other OCS policies as well.

The chief policy goal in not continuing annual moratoria beyond FY2008 was to increase domestic OCS energy production. Also influential were policies to diversify domestic energy production, including by launching renewable energy programs in the OCS, and the availability of new technology that would allow OCS activity in deeper waters beyond clear jurisdictional boundaries. These developments, taken together, reflect a transformative change in OCS policy alternatives. Their impact during periods of volatility in oil markets and in an exceptionally weak economy focuses congressional attention on federal priorities for OCS development.

In the past, Congress has addressed OCS oil and gas development by balancing numerous factors, including economic feasibility, environmental risk, technology, and ocean sovereignty. Disagreements tend to arise in each of these four issue areas between those in favor of offshore oil and gas development and those opposed. Positions are sharply divided on national and coastal state goals for OCS activities in former moratorium areas, and in areas in the Gulf of Mexico and the Arctic where prospective drilling activities or renewable energy projects are permissible.

Around the world, offshore activities are changing, as is reflected in international offshore policy disagreements that are similar to domestic policy disagreements. Economic opportunity and technological advances are driving the global search for energy sources in deeper ocean waters. These activities may clash with national or international environmental policies. Within the framework of the United Nations Convention on the Law of the Sea (UNCLOS), a number of countries are establishing parameters for offshore activities, including preparing claims for extended continental shelf areas. Although the United States has not ratified UNCLOS, U.S. efforts are underway to address extended continental shelf areas in a manner not inconsistent with the UNCLOS process.

The expiration of congressional moratoria is part of a series of changes in domestic and international OCS energy development policy. Moratorium policies have impacted federal-state coordination on economic and environmental concerns. As a result of changes in these policies, federal-state coordination and nation-to-nation coordination may emerge as issues for Congress as it addresses economic and environmental challenges in the OCS.


Date of Report: June 15, 2010
Number of Pages: 22
Order Number: R41132
Price: $29.95

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Thursday, June 24, 2010

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: June 18, 2010
Number of Pages: 29
Order Number:R40185
Price: $29.95

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CRS Issue Statement on Ocean and Coastal Resources


Eugene H. Buck, Coordinator
Specialist in Natural Resources Policy

Congress may consider proposals to alter the relationship between environmental protection and sustainable resource management and development as a result of increased use of coastal and marine resources. Of particular interest are threats to marine water quality, pollutants posing risks to human health and safety, stress from continued growth and development of coastal areas, the contribution of offshore energy resources to U.S. energy security, habitat destruction and overharvesting of living marine resources, and climate change. The combination of more information about ocean and coastal resource issues, new recommendations on how they might be addressed, and the need to consider reauthorizing expired laws means that Congress is likely to give substantial attention to this issue area.

Two reports issued in 2004—one by the Pew Oceans Commission and the other by the U.S. Commission on Ocean Policy—noted declines in marine resources and shortcomings in the fragmented and limited approaches to resource protection and management in federal and state waters. Both reports called for bold responses from Congress and the Administration. Congress may consider whether to (1) provide additional funding for ocean and coastal resource management; (2) replace a fragmented administrative structure for ocean management with a more coherent federal organization; (3) reauthorize certain existing ocean and coastal laws; (4) adopt new approaches for managing marine resources, and (5) conduct oversight of estuarine management and protection programs, implementation of fishery reforms, and expanded OCS activities to foster energy independence.

On June 12, 2009, President Obama directed executive departments and federal agencies to establish an Interagency Ocean Policy Task Force, led by the White House Council on Environmental Quality. This task force is charged with developing recommendations for a national policy and a framework for coastal and marine spatial planning. The task force has presented preliminary recommendations in its Interim Report and issued an Interim Framework for Effective Coastal and Marine Spatial Planning.

One issue of congressional interest is the decline in water quality, especially in coastal areas. One manifestation of this decline is the expansion of "dead zones"—areas where diminished oxygen (hypoxia) kills immobile marine life and drives away mobile organisms during some seasons of the year; another is the increasing frequency of toxic algal blooms that kill fish and leave toxic residues in shellfish. In some areas, chronic water quality problems cause declines of relatively immobile populations, including shellfish and corals. In estuaries, where pollutants are most concentrated and water circulation is limited (e.g., San Francisco, Galveston, and Chesapeake Bays), these declines have been pronounced. Each estuary has different water quality problems, based on factors such as shoreline development and land use, pollutants introduced from upstream watersheds, and internal water circulation. Adding to water quality concerns are chronic stresses from warming ocean temperatures, threatening corals and other biota, and rising ocean acidity caused by increasing atmospheric carbon dioxide levels.

In addition to impacts on the marine environment, releases of pollutants into coastal waters can present risks to human health and safety. The consumption of contaminated fish and shellfish, and swimming in contaminated waters, are common pathways through which human exposure can occur. Although the direct discharge of waste and pollutants from vessels and facilities has fallen over time as a result of increased regulation, some substances and materials can persist in the environment and continue to present risks long after their initial release. For example, the disposal of chemical weapons in the ocean ceased in 1970, but the potential risks from this practice have received recent congressional attention. Further, runoff from the land has become an increasing contributor to pollution in coastal wasters, raising many complex issues as the diffuse nature of this source makes it difficult to control. Accidental releases also can occur. Oil and fuel spills can be particularly challenging and require substantial resources to remediate, depending on the size of the release.

A further concern is the increasing pressures and conflicts that arise from economic activity associated with continued human population growth in coastal areas. More than half the country's population now resides in coastal counties, and that percentage is forecast to grow as more people retire and seek the amenities of coastal living, or are attracted because of increasing employment opportunities. Within coastal areas, the most attractive and highest-valued properties often are the most at risk, exposed to the forces of wind and waves that accompany ocean storms, hurricanes, and tsunamis. Current projections that sea levels will continue to rise indicate that coastal sites will become more at risk in the future unless this threat is addressed through policies and actions.

Increased use of coastal and nearshore areas has promoted conflict with ocean energy development and production from outer continental shelf oil and gas platforms as well as wind farms. Development and production of various energy resources offshore, including petroleum, natural gas, tidal, and wind, are considered by many to be vital to U.S. energy security. However, controversy arises over how best to approach and promote this development, and how to balance conflicts with other competing uses, particularly in nearshore areas. Federal management of outer continental shelf (OCS) energy infrastructure is highly relevant to national ocean policy formation due to numerous federal management demands related to OCS stimulus spending, expanded OCS leasing programs, an extended continental shelf project in the Arctic, and related international ocean objectives.

Additional OCS issues for Congress have emerged as a result of the Deepwater Horizon explosion and oil release, beginning in April 2010. What lessons should be drawn from the incident? What technological and regulatory changes may be needed to meet risks peculiar to drilling in deeper water? How should Congress distribute costs associated with a catastrophic oil spill? What interventions may be necessary to ensure recovery of Gulf resources and amenities? What does the Deepwater Horizon incident imply for national energy policy, and the tradeoffs between energy needs, risks of deepwater drilling, and protection of natural resources and amenities?

Habitat destruction, aggressive harvesting, and unintended mortality incidental to other marine activities have combined to stress and deplete many fish, shellfish, marine mammal, and marine invertebrate (e.g., coral) populations. The Magnuson-Stevens Fishery Conservation and Management Act, the Marine Mammal Protection Act, and other laws seek to protect habitat and provide for sustainable management of living marine resources. Determining the appropriate balance among resource/habitat protection, sustainable use, and economic development is a perennial concern for Congress.

The potentially harmful effects of naval sonar on marine mammals has received attention. A recent Supreme Court decision upheld the authority of the Navy to conduct training exercises involving the use of mid-frequency active sonar in ocean waters off the coast of southern California. The Navy had argued that this type of sonar is critical to national security because of its ability to detect smaller, quieter submarines. The court's decision has raised questions about how protection of marine mammals might be balanced with national security needs in the future.

A number of additional emerging issues relate to climate change, including the role of the ocean in mediating climate change as well as biological, physical, and chemical changes in the marine
environment accompanying climate change. Sea level rise, ocean acidification, and carbon sequestration via ocean fertilization are several aspects of these concerns.


Date of Report: June 11, 2010
Number of Pages: 4
Order Number: IS40356
Price: $0.00 FREE

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Tuesday, June 22, 2010

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: June 7, 2010
Number of Pages: 26
Order Number: R41082
Price: $29.95

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Monday, June 21, 2010

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: June 10, 2010
Number of Pages: 20
Order Number: RL34209
Price: $29.95

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Thursday, June 17, 2010

Congressionally Designated Special Management Areas in the National Forest System


Ross W. Gorte
Specialist in Natural Resources Policy

Congress authorized the President to reserve public forests to protect the lands and resources. The many presidential proclamations and subsequent land purchases have led to the current National Forest System. These lands are managed to balance the many purposes and values under the Multiple Use-Sustained Yield Act of 1960 through an interdisciplinary planning process, with public involvement, under the National Forest Management Act of 1976.

Congress has also designated many specific national forest areas to emphasize particular values or resources, and continues to consider legislation to designate additional specially managed areas within the national forests. Congress has established two systems of areas with statutory guidelines for all areas. The National Wilderness Preservation System has many units, with general management guidelines that apply to all: no permanent roads or structures; no commercial enterprises; and no motorized or mechanical access. However, the 1964 Wilderness Act that created the Wilderness System and many subsequent wilderness statutes have also included numerous exceptions to these standards for specific areas. The other system is the Wild and Scenic Rivers System, with general management direction for the corridors identified along designated rivers.

In addition, Congress has designated at least 97 individual areas within the National Forest System, and continues to consider more such designations. The Omnibus Public Land Management Act of 2009, for example, designated 10 special areas among its many provisions. While many of the designations are unique, the areas can generally be grouped into six categories: national monuments (6, including one administrative designation); recreation areas (26); scenic areas (11); game refuges (6); protection areas (38); and other (11).

While the statutes designating these 97 areas differ, many provisions are found in multiple statutes. Common administrative provisions include findings of the importance and uniqueness of the area; purposes for administration of the area; designation of the area, often with references to maps and boundaries; applicable law, with most making the provisions supplemental to the management guidance for national forests generally; a management plan for the area; an advisory committee for the area or the plan; authorization of land acquisition; and withdrawal of the area from the public land laws. Less common administrative provisions include requiring regulations for the area; explicitly allowing inholder access; prohibiting buffer zones around the area; retaining most state and local governance provisions; and authorizing appropriations.

There are also three common resource management provisions in the many statutes designating special areas: withdrawal of the area from mining and mineral leasing laws, subject to valid existing rights; timber harvesting restrictions, often with exemptions for fire, insect, or disease control; and fish and wildlife management, generally preserving state responsibilities and jurisdiction, allowing fishing and hunting, and authorizing area or period closures for various purposes, in consultation with state officials. Less common resource management provisions include limitations on motorized access; authority for fire, insect, and disease control actions; continued livestock grazing; authority for low-level military overflights; and directions on water use and water rights.



Date of Report: June 11, 2010
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Water Infrastructure Funding in the American Recovery and Reinvestment Act of 2009


Claudia Copeland
Specialist in Resources and Environmental Policy

Megan Stubbs
Analyst in Agricultural Conservation and Natural Resources Policy

Charles V. Stern
Analyst in Natural Resources Policy

On February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act of 2009 (P.L. 111-5, the ARRA, or Recovery Act). Among the purposes identified in the legislation are preservation and creation of jobs and promotion of U.S. economic recovery, and investment in transportation, environmental protection, and other infrastructure that will provide long-term economic benefits. This report identifies funding for water infrastructure programs and projects contained in the legislation.

The legislation directs additional appropriations to a number of existing federal programs that either directly invest in water infrastructure projects or provide assistance to states and localities for such activities. Water infrastructure funding in the bill, available for obligation through September 30, 2010, is provided to five federal agencies and one commission. This funding totals $13.5 billion.

The bill provides funding for locally built wastewater and drinking water treatment projects through assistance programs administered by the Environmental Protection Agency (EPA) and the U.S. Department of Agriculture (USDA). For the EPA wastewater program, the enacted bill provides $4.0 billion. For the EPA drinking water program, P.L. 111-5 provides $2.0 billion in additional funds. These funds were allocated to states according to established formulas, and states will award actual assistance to projects and communities. For the USDA programs that benefit rural communities, the Recovery Act provides $1.38 billion in grants and loans; USDA state offices are making individual project decisions. Additional funding in the bill for these programs is three to four times more than the level of recent appropriations.

The enacted legislation provides funding for water resources development and management projects administered by four agencies. It provides $4.6 billion for the U.S. Army Corps of Engineers (Corps) and $1.0 billion for the Bureau of Reclamation (Reclamation). The legislation also provides $340 million for USDA's Natural Resources Conservation Service (NRCS) agricultural watershed program, and $220 million for the Department of State's International Boundary and Water Commission (IBWC) for levee and dam upgrades. Congress directed that the funds be used consistent with the eligibility and prioritization constraints and direction provided in P.L. 111-5 and the accompanying conference report, H.Rept. 111-16, but discretion regarding which specific water resource projects received funds was largely left up to the these federal agencies.

Even after enactment, implementation of the additional water infrastructure funding in the ARRA is raising a number of issues, including how general restrictions in the legislation, such as "Buy American" requirements, will affect timely spending of ARRA funds. Another issue concerns matching fund requirements. Unless project assistance is provided entirely as grants, communities and project sponsors will need to come up with matching funds, which could be very challenging in the current fiscal environment. Congressional committees have held several hearings on use of ARRA water infrastructure funds, and additional oversight is likely during the remainder of the 111th Congress.


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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: June 11, 2010
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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: June 11, 2010
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Tuesday, June 15, 2010

Pacific Salmon and Steelhead Trout: Managing Under the Endangered Species Act

Eugene H. Buck
Specialist in Natural Resources Policy

Harold F. Upton
Analyst in Natural Resources Policy

Along the Pacific Coast, 28 distinct population segments of Pacific salmon and steelhead trout are listed as either endangered or threatened under the Endangered Species Act (ESA). Human activities have combined to greatly degrade, reduce, and eliminate fish habitat and otherwise harm populations of anadromous (sea-run) fish. In addition, natural phenomena stress fish populations and contribute to their variable abundance. Current management efforts aim to restore the abundance of ESA-listed native northeast Pacific salmonids to historic, sustainable population levels. This report summarizes the reasons for ESA listings and outlines efforts to protect ESA-listed species. This report will be updated periodically to reflect the changing situation.


Date of Report: June 2, 2010
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Friday, June 11, 2010

Forest Carbon Markets: Potential and Drawbacks


Ross W. Gorte
Specialist in Natural Resources Policy

Jonathan L. Ramseur
Specialist in Environmental Policy

Forests are major carbon sinks (storehouses), and activities that alter forests can release or sequester carbon dioxide (CO2), the most common greenhouse gas (GHG). Some carbon markets have been formed under mandatory GHG reduction regimes, such as the Kyoto Protocol and various regional and state initiatives in the United States. Other markets have formed for voluntary efforts to reduce GHG emissions. Offsets, or credits for sequestering carbon or reducing emissions in unregulated sectors, are typically allowed in both mandatory and voluntary markets. Forestry activities are among the largest-volume and lowest-cost opportunities for generating offsets.

Various forestry activities may be feasible for carbon offsets. Afforestation (planting trees on open sites) and reforestation (planting trees on recently cleared sites) are the activities most commonly included for offsets. Some propose that the carbon stored in long-term wood products, such as lumber and plywood, could be credited as carbon offsets, and mill wastes often substitute for fossil fuels to produce energy; however, short-term products (e.g., paper) and the biomass left in the woods after timber harvesting release carbon, making the net carbon effects uncertain. Some forest management practices also might qualify for carbon offsets; certified sustainable forest practices provide a system of assured, long-term forests, while activities to increase tree growth face many of the same concerns as long-term wood products. Finally, deforestation is a major source of GHG emissions, accounting for as much as 17% of anthropogenic emissions. Thus, avoided deforestation, especially in the tropics, potentially provides an enormous opportunity to reduce GHG emissions. However, avoided deforestation is particularly prone to leakage (see below), as well as many of the concerns about forest carbon offsets generally.

Forestry projects may offer considerable market opportunities for carbon offsets, but several issues have generated concerns and controversy. One concern, especially for compliance markets, is whether projects are additional to business as usual. An activity that is common practice or industry standard, or a project that is required under current federal, state, or local laws, cannot be used as an offset. Functional carbon markets also require cost-effective practices to verify carbon sequestration. Current measurement and monitoring practices are costly and have several implementation challenges. Another concern is that, compared to other types of offsets, forestry projects present substantial risk of leakage. Emission leakage can occur if carbon sequestered in one location (e.g., by avoided deforestation) leads to carbon release (e.g., from increased harvesting) in another location. Product leakage could occur if forest carbon sequestration induces use of more carbon-intensive substitutes (e.g., cement or steel). Forest carbon projects are expected to generate offsets for decades. Some are concerned that the sequestration will be negated subsequently by human activity (e.g., change in land use) or a natural occurrence (e.g., forest fire or disease). Although there are legal and accounting mechanisms that can address this concern, implementing these options may present challenges, particularly for projects in developing nations. Finally, forward crediting to allow early credits for expected sequestration faces many of the same concerns about not fulfilling expectations. 
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Tuesday, June 8, 2010

Interior, Environment, and Related Agencies: FY2011 Appropriations

Carol Hardy Vincent, Coordinator
Specialist in Natural Resources Policy

The Interior, Environment, and Related Agencies appropriations bill includes funding for the Department of the Interior (DOI), except for the Bureau of Reclamation, and for agencies within other departments—including the Forest Service within the Department of Agriculture and the Indian Health Service (IHS) within the Department of Health and Human Services. It also includes funding for arts and cultural agencies, the Environmental Protection Agency, and numerous other entities. 

The President requested $32.43 billion for FY2011 for Interior, Environment, and Related Agencies, a $136.3 million (0.4%) increase over the FY2010 level of $32.29 billion. Despite the relative stability of this total funding, the President sought increases for some agencies and decreases for other agencies. Among the proposed increases for FY2011, over FY2010 appropriations, were the following: 

• $354.1 million (9%) for the Indian Health Service; 

• $79.4 million (1%) for the Forest Service; 

• $36.2 million (5%) for the Smithsonian Institution; 

• $21.6 million (2%) for the U.S. Geological Survey; and 

• $11.4 million (8%) for the Minerals Management Service. 

Among the proposed decreases were the following: 

• $269.9 million (3%) for the Environmental Protection Agency; 

• $53.6 million (2%) for the Bureau of Indian Affairs; 

• $25.8 million (14%) for the Office of Special Trustee for American Indians; 

• $16.7 million (10%) for the Office of Surface Mining; and 

• $15.5 million (15%) for Insular Affairs. 

The House and Senate Appropriations Subcommittees on Interior, Environment, and Related Agencies have held hearings on FY2011 agency budget requests. No bill to fund Interior, Environment, and Related Agencies for FY2011 has been introduced to date. Congress may debate a variety of funding and policy issues during consideration of the FY2011 Interior appropriations legislation. These issues might include energy development onshore and offshore, wildland fire fighting, Indian trust fund management, royalty relief, climate change, DOI science programs, and wild horse and burro management. Other issues might include appropriate funding levels for Bureau of Indian Affairs law enforcement and education; Indian Health Service construction and contract health services; wastewater/drinking water needs; the arts; land acquisition through the Land and Water Conservation Fund; and the Superfund program.


Date of Report: May 26, 2010
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Monday, June 7, 2010

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). 
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Date of Report: May 25, 2010
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Gas Hydrates: Resource and Hazard


Peter Folger
Specialist in Energy and Natural Resources Policy

Solid gas hydrates are a potentially huge resource of natural gas for the United States. The U.S. Geological Survey estimated that there are about 85 trillion cubic feet (TCF) of technically recoverable gas hydrates in northern Alaska. The Minerals Management Service estimated a mean value of 21,000 TCF of in-place gas hydrates in the Gulf of Mexico. By comparison, total U.S. natural gas consumption is about 23 TCF annually. The in-place estimate disregards technical or economical recoverability, and likely overestimates the amount of commercially viable gas hydrates. Even if a fraction of the U.S. gas hydrates can be economically produced, however, it could add substantially to the 1,300 TCF of technically recoverable U.S. conventional natural gas reserves. To date, however, gas hydrates have no confirmed commercial production.

Gas hydrates are both a potential resource and a risk, representing a significant hazard to conventional oil and gas drilling and production operations. If the solid gas hydrates dissociate suddenly and release expanded gas during offshore drilling, they could disrupt the marine sediments and compromise pipelines and production equipment on the seafloor. The tendency of gas hydrates to dissociate and release methane, which can be a hazard, is the same characteristic that research and development efforts strive to enhance so that methane can be produced and recovered in commercial quantities. Gas hydrates have hindered attempts to plug the Deepwater Horizon oil well blowout in the Gulf of Mexico, and may have had some role in contributing to anomalous gas pressure in the wellbore that caused the blowout itself.

Developing gas hydrates into a commercially viable source of energy is a goal of the U.S. Department of Energy (DOE) methane hydrate program, initially authorized by the Methane Hydrate Research and Development Act of 2000 (P.L. 106-193). The Energy Policy Act of 2005 (P.L. 109-58, Subtitle F, § 968) extended the authorization through FY2010 and authorized total appropriations of $155 million over a five-year period. Congress appropriated $15 million for the gas hydrate research and development (R&D) program in FY2009. The Obama Administration requested $25 million for the natural gas technologies program for FY2010, which includes gas hydrate R&D. Congress appropriated $17.8 million for the program in FY2010, which would also fund research and development into unconventional gas production from basins containing tight gas sands, shale gas, and coal bed methane, as well as for gas hydrates.


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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 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: May 26, 2010
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Thursday, June 3, 2010

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 28, 2010
Number of Pages: 29
Order Number: R40185
Price: $29.95

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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
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Date of Report: May 28, 2010
Number of Pages: 34
Order Number: R40172
Price: $29.95

Document available via e-mail as a pdf file or in paper form.
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Ocean Acidification

Eugene H. Buck
Specialist in Natural Resources Policy

Peter Folger
Specialist in Energy and Natural Resources Policy

With increasing concentrations of carbon dioxide (CO2) in the atmosphere, the extent of effects on the ocean and marine resources is an increasing concern. One aspect of this issue is the ongoing process (known as ocean acidification) whereby seawater becomes less alkaline as more CO2 dissolves in it, causing hydrogen ion concentration in seawater to increase. Scientists are concerned that increasing hydrogen ion concentration could reduce growth or even cause death of shell-forming animals (e.g., corals, mollusks, and certain planktonic organisms) as well as disrupt marine food webs and the reproductive physiology of certain species. While not yet fully understood, the ecological and economic consequences of ocean acidification could be substantial. 

Scientists are concerned that increasing hydrogen ion concentration in seawater could alter biogeochemical cycles, disrupt physiological processes of marine organisms, and damage marine ecosystems. This report does not discuss the effects of increasing thermal stress to marine organisms and ecosystems (e.g., coral bleaching) related to climate change. However, marine ecosystems are likely to be affected by the synergistic effects of factors involved in both thermal and chemical processes. 

Congress is beginning to focus attention on better understanding ocean acidification and determining how this concern might be addressed. In the 111th Congress, the Federal Ocean Acidification Research and Monitoring Act of 2009 (Title XII, Subtitle D, of P.L. 111-11) directed the Secretary of Commerce to establish an ocean acidification program within NOAA, established an interagency committee to develop an ocean acidification research and monitoring plan, and authorized appropriations through FY2012 for NOAA and the National Science Foundation.



Date of Report: May 27, 2010
Number of Pages: 15
Order Number: R40143
Price: $29.95

Document available via e-mail as a pdf file or in paper form.
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