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 (FWS) 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. 991/ S. 1066 would allow importing polar bears that were legally taken prior to the ESA listing, and H.R. 990 would revise the MMPA to allow continued import of sport hunted polar bears from Canada. H.R. 39 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.

The District Court for the District of Columbia upheld the listing decision in June 2011, rejecting claims that the bear should have been listed as endangered, or listed as a distinct population segment, or not listed at all.

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: July 18, 2011
Number of Pages: 16
Order Number: RL34573
Price: $29.95

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Fish and Wildlife Service: FY2012 Appropriations and Policy

M. Lynne Corn
Specialist in Natural Resources Policy

The annual Interior, Environment, and Related Agencies appropriation funds agencies and programs in three federal departments, as well as numerous related agencies and bureaus. Among the more controversial agencies represented in the bill is the Fish and Wildlife Service (FWS), in the Department of the Interior. For FWS appropriations in FY2012, on July 12, 2011 the House Appropriations Committee approved H.R. 2584 (H.Rept. 112-151) containing $1.19 billion for the agency, down 21% from the FY2011 level of $1.50 billion. In discussing the motivation for the broad reductions, the Committee stated in its report that “Congress must take immediate action to put our nation’s fiscal house in order by reducing Federal spending, balancing the budget, and creating jobs to put our economy on a sustainable, healthy course for the future.”

For FWS, each account was reduced to some degree relative to the FY2011 level. A few accounts or subaccounts were proposed for zero funding: listing and critical habitat designation under the Endangered Species Program, portions of the land acquisition program for the National Wildlife Refuge System, portions of the Cooperative Endangered Species Conservation Fund (which funds grants to states for endangered species conservation), the Neotropical Migratory Bird Conservation Fund, and competitive state grants under the State and Tribal Wildlife Grants account.

This report analyzes the FWS funding levels contained in the FY2012 appropriations bill. Emphasis is on FWS funding for programs of interest to Congress, now or in recent years. Each of the related policy issues is explained in more detail in the report. Several current controversies over appropriations levels or funding restrictions are discussed in more detail, including elimination of funding for certain programs under the Endangered Species Act; funding levels for fish hatcheries, payments to counties in lieu of taxes, and land acquisition; and further restrictions concerning protection of gray wolves.

For FY2011, on April 14, 2011, the House and Senate both passed a full-year continuing appropriations measure, H.R. 1473, which was signed into law on April 15, 2011 as P.L. 112-10.


Date of Report: July 21, 2011
Number of Pages: 14
Order Number: R41928
Price: $29.95

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The Reclamation Fund: A Primer

Charles V. Stern
Analyst in Natural Resources Policy

The Reclamation Fund was established in 1902 to fund the development of irrigation projects on arid and semiarid lands of the 17 western states. It originated as a revolving fund for construction projects and was supported by the proceeds of the sale of land and water in the western United States. Over time, it was amended to receive proceeds from a number of other sources. It is currently derived from repayments and revenues associated with federal water resources development as well as the sales, rentals, and leases (including natural resource leasing) of federal land in the western United States. Portions of the fund’s balance are appropriated annually by Congress for multiple purposes, including some of the operational expenditures of the Bureau of Reclamation (Reclamation) and the Power Marketing Administrations. Through FY2010, collections deposited into the Reclamation Fund totaled more than $40 billion, while total appropriations from the fund totaled approximately $30 billion.

The Reclamation Fund did not finance all Reclamation investments in the western United States. As a result of limited funding availability, a number of large dams and other Reclamation investments were financed by the General Fund of the U.S. Treasury. Notwithstanding advances to the Reclamation Fund by Congress in 1910 and 1931, deposits into and appropriations out of the fund have been roughly equal over time. From the 1940s until the 1990s, the fund maintained a small, relatively stable balance. Beginning in the mid-1990s, balances in the fund began to increase significantly as receipts from mineral leasing and power sales increased, while appropriations from the fund largely remained static. By FY2010, the balance of the fund exceeded $8.5 billion and was expected to continue to grow.

The Reclamation Fund is not a trust fund. Receipts deposited into the Reclamation Fund are made available to Reclamation by Congress through annual appropriations bills (which are subject to congressional budgetary allocations). Some have proposed that Congress appropriate some portion of the surplus balance in the Reclamation Fund to reclamation activities in western states, including new water storage projects or the rehabilitation of existing projects. These interests argue that the Reclamation Fund was set up to benefit western states and should now be used to increase investments in these areas.

As the balance of the Reclamation Fund continues to increase, Congress may reevaluate the Reclamation Fund’s status, including its financing of new or ongoing activities. Major changes to the fund’s mechanics may have scoring implications in the annual budgetary context and under congressional pay-as-you-go rules.


Date of Report: July 13, 2011
Number of Pages: 10
Order Number: R41844
Price: $29.95

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Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Kristina Alexander
Legislative Attorney

For decades biologists, water users, and lawmakers (both federal and state) have attempted to craft a system that meets the needs of California water users while ensuring sufficient usable water for fish. Under California’s hybrid system of appropriative water rights, users are issued permits for water diverted from rivers and streams regardless of the users’ proximity to the source of water. The state of California has issued permits to the Bureau of Reclamation (the Bureau) to store, divert, and deliver water from the federal Central Valley Project (CVP), which consists of facilities on the Sacramento, Stanislaus, and San Joaquin Rivers, including the Shasta, New Melones, and Friant Dams. The Bureau diverts CVP and the State Water Project (SWP) water from the southern portion of the Sacramento-San Joaquin Delta to the southern part of California. Although the amount of water available from the CVP/SWP is relatively constant, notwithstanding periods of drought and periods of excessive rain (e.g., El Niño years), the amount of water diverted from major rivers and their tributaries has increased over time, and fish populations have declined.

In the CVP/SWP watershed, the Endangered Species Act (ESA) protects multiple species or populations of fish, including the endangered Sacramento River winter-run Chinook salmon, the threatened Central Valley spring-run Chinook salmon, the threatened Central Valley steelhead, the threatened Southern population of North American green sturgeon, and the threatened delta smelt. The ESA requires the Bureau to consult with the Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) (together, the Services) to see whether planned actions are likely to jeopardize a listed species or damage critical habitat. (FWS is consulted for impacts related to the Delta smelt. NMFS is consulted on potential impacts to salmon.) The consultation process concludes with the Service issuing a biological opinion (BiOp) along with an incidental take statement, allowing the federal action to proceed without prosecution for incidental harm to listed species. If the Service finds the action is likely to jeopardize a listed species, a jeopardy BiOp is issued, which will include reasonable and prudent alternatives (RPAs) to the planned action to avoid extinction of a species. Otherwise a no-jeopardy BiOp is issued.

In 2004, the Long-Term Central Valley Project and State Water Project Operations Criteria and Plan (OCAP) was issued by California and the Bureau to meet the system’s water needs. Pursuant to OCAP, the Services issued both jeopardy and no-jeopardy opinions. Lawsuits challenged both types of BiOp. If jeopardy was found, water users argued that the BiOp failed to consider impacts on junior water users sufficiently. If no jeopardy was found, environmentalists and fishermen argued that the BiOp did not fully consider the extent of the harm to the species. Judge Oliver W. Wanger of the federal court for the Eastern District of California has found the BiOps or the RPAs to be inadequate for various reasons, including failing to comply with the National Environmental Policy Act (NEPA). Some of those decisions have since been appealed to the Ninth Circuit. This report summarizes the proceedings on the BiOps issued since 2004.


Date of Report: July 1, 2011
Number of Pages: 11
Order Number: R41876
Price: $29.95

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The Gray Wolf and the Endangered Species Act (ESA):A Brief Legal History

Kristina Alexander
Legislative Attorney

Wolves had all but disappeared from the contiguous United States when Congress enacted the Endangered Species Act of 1973 (ESA), and the Fish and Wildlife Service (FWS) listed wolves as an endangered species in most of the lower 48 states. Since then, the gray wolf (Canis lupus) has held every status of protection under the ESA, as regulatory efforts have shifted from conserving the wolf, which culminated in reintroducing wolves into three parts of the American West in the 1990s, to reducing wolf protections where its population has surged. Litigation has followed each regulatory change. After courts rejected regulatory efforts to reduce protections, Congress enacted P.L. 112-10, § 1713, which removes federal protection of the gray wolf in Montana, Idaho, eastern Washington, eastern Oregon, and north-central Utah, and marks the first legislative delisting in the history of the ESA.

Other changes to wolf protection are contemplated. FWS has proposed recognizing a new species of wolf, the eastern wolf (Canis lycaon), and changing the gray wolf’s historic range to omit all or parts of 29 states in the eastern United States. Additionally, FWS has proposed delisting gray wolves in the Western Great Lakes area and evaluating whether wolf populations in the Pacific Northwest and the Southwest are appropriately protected under the ESA.

This report provides a brief history of the laws, regulations, and lawsuits related to the wolf’s protected status. Fuller analyses of the concepts discussed in this report can be found in the companion report, CRS Report RL34238, Gray Wolves Under the Endangered Species Act (ESA): Distinct Population Segments and Experimental Populations, by Kristina Alexander and M. Lynne Corn.


Date of Report: July 14, 2011
Number of Pages: 14
Order Number: R41730
Price: $29.95

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