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Thursday, November 25, 2010

The Endangered Species Act (ESA) in the 111th 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
Acting Section Research Manager

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 111
th 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 109
th Congress, but none was enacted. No legislative proposals were introduced in the 110th Congress to reauthorize the ESA.

In the first session of the 111
th 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 111
th Congress to address ESA implementation and management of endangered and threatened species.


Date of Report: November 16, 2010
Number of Pages: 29
Order Number: R40185
Price: $29.95

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Tuesday, November 23, 2010

Does the Endangered Species Act Listing Provide More Protection of the Polar Bear?


Kristina Alexander
Legislative Attorney

The polar bear has been protected under the Marine Mammal Protection Act (MMPA) since 1972, meaning that it is illegal to kill or harass the bear or to transport or trade its parts (with a few exceptions). The Endangered Species Act (ESA) also prohibits killing or harming listed species. Some ask: If it was already illegal to kill or harm the bear when the U.S. Fish and Wildlife Service listed the bear as threatened on May 15, 2008, what protections were provided by the listing?

One example of increased protection is that ESA threatened species are categorized as depleted species under the MMPA, meaning that polar bear trophies may no longer be imported from sport-hunts in Canada under that MMPA exception. Approximately 80 bears a year were permitted for import under this program. Proposed legislation would change that. H.R. 1054 would allow import of polar bears that were legally taken prior to the ESA listing, and H.R. 1055 would revise the MMPA to allow continued import of polar bears, regardless of their status. S. 1395 would also allow continued import of polar bear trophies, but would further modify the act to allow imports even when it would have a significant impact on the Canadian population of bears and regardless of whether it is otherwise consistent with the MMPA. H.R. 5379 would statutorily revoke the listing.

Another protection offered by the ESA listing is habitat protection. The ESA has several provisions that function to protect not just the bear, but its habitat. While the MMPA has habitat protection as a purpose, it does not require any habitat conservation measures or punish habitat destruction. FWS proposed designating critical habitat in May 2010 (revising a proposed designation of October 2009); therefore, that environmental protection would be available when final. FWS estimates that the additional expense of considering adverse impacts on critical habitat could total $53,900 per year. The ESA requires another system that might protect the bear— establishing a recovery plan—but FWS has not completed the process. When a recovery plan is prepared, it would establish recovery goals and trigger congressional monitoring of the polar bear’s progress.

The Special Rule for the polar bear, under Section 4(d) of the ESA, may have minimized some protections the listing otherwise may have provided. The Special Rule describes when the MMPA applies and when the ESA applies, harmonizing some provisions of the two laws, a possible benefit for MMPA permit holders. The polar bear Special Rule also eliminates some protections that the ESA might have provided—such as those relating to incidental takes, subsistence users, or citizen suits—by continuing the MMPA protections. The Special Rule also adds a different standard for certain military actions. Had the polar bear been listed as an endangered species, rather than threatened, there would be no Special Rule. Arguably, polar bears would have been more protected.

A November 2010 court ruling could lead to the end of the Special Rule. The D.C. District Court remanded the listing decision, requiring FWS to justify its rationale by December 23, 2010. If FWS cannot satisfy the court, and the court directs an endangered determination, the Special Rule would cease to apply.

The Omnibus Appropriations Act of 2009 (P.L. 111-8) gave the Secretary of the Department of the Interior discretion to withdraw or reissue the Special Rule within 60 days. No change was made.



Date of Report: November 10, 2010
Number of Pages: 16
Order Number: RL34573
Price: $29.95

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Friday, November 19, 2010

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.

USDA issued the BCAP final rule on October 27, 2010, implementing both program components. 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 is in the early stages of implementation, 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: November 8, 2010
Number of Pages: 17
Order Number: R41296
Price: $29.95

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Tuesday, November 16, 2010

Water Reuse and the Title XVI Program: Legislative Issues


Betsy A. Cody
Specialist in Natural Resources Policy

Nicole T. Carter
Specialist in Natural Resources Policy


Congress authorized the Department of the Interior (DOI) to undertake a program to provide federal financing for water reuse (i.e., planned beneficial use of treated wastewater and impaired surface and groundwater) with passage of the Reclamation Wastewater and Groundwater Studies Feasibility Act of 1992 (Title XVI of P.L. 102-575). The Department of the Interior’s implementation of the program by the Bureau of Reclamation at times has been contentious. Many Members of Congress, particularly from water-scarce western states, have supported the program and specific projects. However, with a funding backlog of more than $630 million to complete already authorized projects, several pending authorizations, and ongoing concerns about the appropriate federal role in funding Title XVI facilities, it is not clear what action the 111th Congress will take in its remaining days. Similarly, it is not clear what approach the 112th Congress will take toward the Title XVI program.

Approximately $531 million has been appropriated for Title XVI projects in the West, mostly in California. Of the 53 authorized projects, 42 have received some appropriation. From FY2009 to FY2010, the number of projects that are either complete or have exhausted their authorized federal cost-share rose from 10 to 16. However, the rate of Title XVI project authorizations has outpaced annual appropriations. For example, recent stimulus funding combined with regular appropriations resulted in fewer “unfunded” projects on the books, but the overall funding backlog has grown to approximately $630 million.

At issue for Congress in the short term is whether to authorize new projects and at what level to fund already authorized projects (e.g., H.R. 2442 and H.R. 2522). At issue for the longer term is whether legislative action and oversight is needed to address Title XVI implementation issues, and if so, how to change the program. The Department of the Interior has taken action in recent years to improve the program’s implementation. To what degree these actions are consistent with congressional priorities for the program will significantly shape perspectives on whether the program warrants legislative attention in the 112
th Congress. Other issues include the future of new project authorizations, given the backlog of authorized projects awaiting appropriations and competing budget priorities, and whether Congress should appropriate lump sum funding to be allocated to projects by the Administration under new funding criteria.

A challenge for Congress is that stakeholders’ perspectives on how to manage and improve the program can be fundamentally different. Title XVI authorizations and appropriations have been pursued by many water utilities seeking access to federal funds, which can be leveraged to obtain additional financing. Project sponsors generally are seeking a more streamlined project development process and expanded program appropriations. The Administration appears to support a smaller, more focused program with long-term objectives tied to federal interests, as indicated by funding criteria released by the Administration in October 2010. Others fear the program will overwhelm Reclamation’s budget and compete with the upkeep and new authorizations for traditional Reclamation projects.

Views on the Title XVI program and its future also vary based on perspectives on the proper federal role in water supply development, the appropriate priority for the program in the current federal and state fiscal environments, the history and mission of the program, and the urgency and need for investment and promotion of water reuse technologies. The justification for federal involvement in these projects, which expand municipal water supply, and the long-term goals and planning for the program have come under scrutiny and may be at issue in the 112
th Congress.


Date of Report: November 9, 2010
Number of Pages: 24
Order Number: R41487
Price: $29.95

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Genetically Engineered Fish and Seafood: Environmental Concerns


Eugene H. Buck
Specialist in Natural Resources Policy

Genetic engineering techniques allow the manipulation of inherited traits to modify and improve organisms. Several genetically modified (GM) fish and seafood products are currently under development and offer potential benefits such as increasing aquaculture productivity and improving human health. However, some are concerned that, in this rapidly evolving field, current technological and regulatory safeguards are inadequate to protect the environment and ensure public acceptance that these products are safe for consumption. (The safety of GM foods is not addressed in this report.)

In the early 2000s, several efforts began to develop GM fish and seafood products, with a GM AquAdvantage salmon developed by AquaBounty, Inc., in the forefront of efforts to produce a new product for human consumption. By September 2010, requested data had been provided to the U.S. Food and Drug Administration (FDA) by AquaBounty, and FDA’s Veterinary Medicine Advisory Committee held public hearings on the approval of AquAdvantage salmon for human consumption. The public comment period on FDA approval is open through November 22, 2010, and FDA action on approval is not anticipated before early 2011. If approved, AquAdvantage salmon would be the first GM animal approved for human consumption.

Environmental concerns related to the development of GM fish include the potential for detrimental competition with wild fish, and possible interbreeding with wild fish so as to allow the modified genetic material to escape into the wild fish population. Sterilization and bioconfinement have been proposed as means of isolating GM fish to minimize harm to wild fish populations. To address these concerns, AquaBounty has proposed producing salmon eggs (all sterile females) in Canada, shipping these eggs to Panama, growing and processing fish in Panama, and shipping table-ready, processed fish to the United States for retail sale.

In the process of congressional oversight of executive agency regulatory action, concerns have been raised about the adequacy of the FDA’s review of the AquAdvantage salmon. In response to these concerns, several bills were introduced in the 111
th Congress seeking to declare GM fish unsafe and thus prevent FDA approval of the AquAdvantage salmon (H.R. 6265) or to require that GM fish be specifically labeled as such (H.R. 6264 and § 301 of H.R. 6325). No action has been taken on these bills in the 111th Congress, and this issue could be of continued concern early in the 112th Congress.


Date of Report: November 10, 2010
Number of Pages: 10
Order Number: R41486
Price: $29.95

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