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Wednesday, June 29, 2011

Arctic National Wildlife Refuge (ANWR): A Primer for the 112th Congress


M. Lynne Corn
Specialist in Natural Resources Policy

Michael Ratner
Analyst in Energy Policy

Kristina Alexander
Legislative Attorney


In the ongoing energy debate in Congress, one issue has been whether to approve energy development in the Arctic National Wildlife Refuge (ANWR or Refuge) in northeastern Alaska— and if so, under what conditions—or whether to continue to prohibit development to protect the area’s biological, recreational, and subsistence values. ANWR is rich in fauna, flora, and oil and natural gas potential. Its development has been debated for more than 50 years, but sharp increases in energy prices from late 2000 to early 2001, in 2004-2008, and in 2011 from a variety of causes (e.g., terrorist attacks, oil spills, and energy infrastructure damage from hurricanes), have repeatedly intensified the debate. Few onshore U.S. areas stir as much oil industry interest as ANWR. At the same time, few areas are considered more worthy of protection in the eyes of conservation and some Native groups. Current law explicitly prohibits oil and natural gas leasing in the Refuge. This report provides a primer on this debate, including background information, and a short description of issues which have arisen repeatedly, as well as some that have been debated only recently.

Procedurally, a key feature in this background is the difficulty in changing the status quo, either toward development or toward additional protection. When energy prices have been high, those Members who advocate increasing supplies as a method of lowering energy prices have renewed their focus on ANWR development. Changes in party control in the House in the 112
th Congress have encouraged development advocates. Over the years, opponents of opening the Refuge have succeeded consistently in stopping such attempts. However, any change from the status quo appears just as difficult for proponents of wilderness designation who seek to provide additional statutory protection as it does for development advocates.

Substantively, a number of issues have been raised. Development advocates assert:

  • any ANWR oil would reduce U.S. energy markets’ exposure to Middle East crises; lower oil prices; extend the economic life of the Trans Alaska Pipeline; 
  • development would create jobs in Alaska and elsewhere in the United States; and 
  • ANWR oil could be developed with minimal environmental harm, and some argue that development could be limited to a total of 2,000 acres. 
Wilderness advocates counter: 
  • intrusion on this ecosystem cannot be justified on any terms; 
  • economically recoverable oil found (if any) would provide little energy security and could be replaced by cost-effective alternatives; 
  • ANWR production would have negligible effect on oil prices; 
  • job claims are exaggerated; and 
  • development would be widely scattered, with irreparable impacts. 
This primer provides background for analyzing the various claims through an examination of its history, and an analysis of its geological, biological, human, and economic resources.


Date of Report: June 15, 2011
Number of Pages: 31
Order Number: RL33872
Price: $29.95

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Monday, June 27, 2011

Wilderness: Legislation and Issues in the 112th Congress


Ross W. Gorte
Specialist in Natural Resources Policy

Kristina Alexander
Legislative Attorney

Sandra L. Johnson
Information Research Specialist


The Wilderness Act established the National Wilderness Preservation System in 1964 and directed that only Congress can designate federal lands as part of the system. Free-standing bills to designate wilderness areas are typically introduced and considered in each Congress; such bills are not amendments to the Wilderness Act, but typically refer to the act for management guidance and sometimes include special provisions. Several wilderness bills have been introduced in the 112th Congress.

Wilderness designation can be controversial. The designation generally prohibits commercial activities, motorized access, and human infrastructure from wilderness areas, subject to valid existing rights. Advocates propose wilderness designations to preserve the generally undeveloped conditions of the areas. Opponents see such designations as preventing certain uses and potential economic development in rural areas where such opportunities are relatively limited.

Most bills direct management of designated wilderness in accordance with the Wilderness Act. However, proposed legislation also often seeks a compromise among interests by allowing other activities in the area. Pre-existing uses or conditions are often allowed to continue, sometimes temporarily, with nonconforming uses to be halted and/or nonconforming conditions to be rectified. More commonly, the authority is permanent, with limited access permitted for specific areas, uses, and times, or with the authority to operate and maintain pre-existing infrastructure. Wilderness bills often contain additional provisions, such as prohibiting buffer zones, or providing special access for particular purposes, such as border security or Native American religious needs. Water rights possibly associated with wilderness designations have also been controversial, and many existing statutes have addressed wilderness water rights in various ways.

Other controversies regarding wilderness have been the subject of legislation. Bills have been introduced to expand access to wilderness areas for border security. Other legislation has addressed how and when wilderness study areas not recommended as wilderness should be released from wilderness-like protection, and when or if agencies should review the wilderness potential of their lands. The latter issue has been more contentious for Bureau of Land Management (BLM) lands, for two reasons. First, BLM is required by law to protect the wilderness characteristics of its wilderness study areas (WSAs) until Congress determines otherwise. Second, a settlement agreement led to a 2003 BLM policy prohibiting additional administrative designations of wilderness study areas and limiting the agency’s ability to protect areas as if they were wilderness. In December 2010, however, Interior Secretary Ken Salazar directed BLM to maintain a wilderness inventory, to consider wilderness potential in planning, and to protect wilderness characteristics of these designated “Wild Lands” unless alternative management is deemed appropriate. This policy has received both praise and objections from some Members of Congress, as well as various interest groups. The FY2011 Full-Year Continuing Appropriations Act (P.L. 112-10) prohibited using funds to implement this secretarial order, and bills have been introduced to terminate the order. In June, Secretary Salazar announced that no “Wild Lands” would be designated, but that BLM will maintain a wilderness inventory and BLM planning will consider wilderness characteristics, as required by law.



Date of Report: June 13, 2011
Number of Pages: 17
Order Number: R41610
Price: $29.95

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Friday, June 24, 2011

Flooding Events: CRS Experts


Amy Abel
Section Research Manager

The following table provides access to names and contact information for CRS experts on policy concerns relating to flooding events in the United States. Policy areas identified include impacts, response and recovery, mitigation, and federal financing.


Date of Report: June 16, 2011
Number of Pages: 3
Order Number: R40882
Price: $19.95

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Thursday, June 23, 2011

Heritage Areas: Background, Proposals, and Current Issues

Carol Hardy Vincent
Specialist in Natural Resources Policy

Over more than 25 years, Congress has established 49 National Heritage Areas (NHAs) to commemorate, conserve, and promote areas that include important natural, scenic, historic, cultural, and recreational resources. NHAs are partnerships among the National Park Service (NPS), states, and local communities, where the NPS supports state and local conservation through federal recognition, seed money, and technical assistance. NHAs are not part of the National Park System, where lands are federally owned and managed. Rather, lands within heritage areas typically remain in state, local, or private ownership or a combination thereof. Heritage areas have been supported as protecting lands and traditions and promoting tourism and community revitalization, but opposed as potentially burdensome, costly, or leading to federal control over nonfederal lands. This report focuses on heritage areas designated by Congress (not other entities) and related issues and legislation.

NHAs might receive funding from a wide variety of sources. Congress typically determines federal funding for NHAs in annual Interior appropriations laws. NHAs can use federal funds for many purposes, including staffing, planning, and projects. The FY2011 appropriation for the NPS for assistance to heritage areas was $17.4 million. The Obama Administration is seeking $9.0 million for FY2012.

There is no comprehensive statute that establishes criteria for designating NHAs or provides standards for their funding and management. Rather, particulars for each area are provided in its enabling legislation. Congress designates a management entity, usually nonfederal, to coordinate the work of the partners. This entity typically develops and implements a plan for managing the NHA, in collaboration with other parties. Once approved by the Secretary of the Interior, the management plan becomes the blueprint for managing the area.

Each Congress typically considers bills to establish new heritage areas, to study areas for possible heritage designation, or to amend existing heritage areas. In the 111
th Congress, the Omnibus Public Land Management Act of 2009 (P.L. 111-11) included provisions to create nine new NHAs, to reauthorize one existing area, to study two areas for possible heritage designation, and to amend four existing heritage areas. The 110th Congress enacted legislation (P.L. 110-229) to establish three new NHAs, to study the feasibility of establishing two others, to increase the total authorization of appropriations for several existing NHAs, to require an evaluation of several existing NHAs, and to amend other heritage areas.

The sizeable number of existing NHAs and proposals in recent years to study and designate new ones fostered measures in the 110
th Congress (S. 278, S. 2180, and S. 3213) to provide criteria for designating NHAs, standards for their management, and limits on federal funding support. The Obama Administration, among others, supports such systemic NHA legislation. Some opponents believe that NHAs present numerous problems and challenges and that Congress should oppose efforts to designate new areas and/or to create a system of NHAs.


Date of Report: June 9, 2011
Number of Pages: 19
Order Number: RL33462
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 NiƱo 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). This report summarizes the proceedings on the BiOps issued since 2004.



Date of Report: June 21, 2011
Number of Pages: 9
Order Number: R41876
Price: $19.95

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Wednesday, June 22, 2011

Indian Reserved Water Rights Under the Winters Doctrine: An Overview


Cynthia Brougher
Legislative Attorney

Although the federal government has authority to regulate water, it typically defers to the states to allocate water resources within the state. The federal government maintains certain federal water rights, though, which exist separate from state law. In particular, federal reserved water rights often arise in questions of water allocation related to federal lands, including Indian reservations. Indian reserved water rights were first recognized by the U.S. Supreme Court in Winters v. United States in 1908. Under the Winters doctrine, when Congress reserves land (i.e., for an Indian reservation), Congress also reserves water sufficient to fulfill the purpose of the reservation.

As the need for water grows with the development of new industries and growing populations, the tension arising from the allocation of scarce water resources highlights the difficulties that often surround reserved water rights, particularly in the western states. Western states generally follow some form of the prior appropriation system of water allocation. The prior appropriation system allocates water to users based on the order in which water rights were properly acquired. Because Indian reserved water rights date back to the government’s reservation of the land for the Indians, these water rights often pre-date other water users’ claims. Although the prior appropriation system’s reliance on seniority provides a degree of certainty to water allocation, Indian reserved water rights may not have been quantified at the time of reservation. Because Winters did not dictate a formula to determine the quantity of water reserved, courts apply different standards to quantify tribal reserved water rights. As a result, other water users may not know whether, or the extent to which, Indian reserved water rights have priority. Because of these uncertainties, Indian reserved water rights are often litigated or negotiated in settlements and related legislation.

This report will examine the creation of Indian reserved water rights under the Winters doctrine. It will analyze the scope of the doctrine, including the purposes for which the water right may be claimed and the sources from which the water may be drawn. It will also discuss various quantification standards that courts have used in attempting to clarify Indian reserved water rights. Finally, it will examine the effect of the McCarran Amendment, through which Congress extended jurisdiction to state courts to hear disputes involving Indian reserved water rights.



Date of Report: June 8, 2011
Number of Pages: 11
Order Number: RL32198
Price: $29.95

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Tuesday, June 21, 2011

The North Atlantic Right Whale: Federal Management Issues


Eugene H. Buck
Specialist in Natural Resources Policy

Kori Calvert
Information Research Specialist


Federal management of the North Atlantic right whale highlights the complexities of how two federal lawsthe Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA)—are implemented in concert to benefit this species. The North Atlantic right whale is protected under provisions of both ESA and MMPA. Congress has expressed interest in conservation efforts, and federal appropriations for North Atlantic right whale research often are a focus of constituent interest.

Congressional funding for NMFS research on this species and its recovery increased from $250,000 in FY1997 to a peak of $12.45 million in FY2004. Since FY2006, funding levels have ranged between $7.78 million and $8.63 million. Controversy has arisen over NMFS proposed spending of these funds because of (1) reported differences between NMFS spending proposals and the recommendations of independent scientists, conservationists, and industry; (2) the level of salary allocations within NMFS; and (3) the timeliness of NMFS contracting procedures.

Unlike many other whale species, the endangered North Atlantic right whale population has not recovered after commercial whaling ceased. Despite U.S. efforts under ESA and MMPA, the population declined by about 2% per year through much of the 1990s before experiencing growth since 2000. Current population estimates vary, with the Marine Mammal Commission’s 2009 Annual Report to Congress (November 2010) indicating a population in excess of 400 individuals.

Direct human-influenced mortality and serious injury of right whales come primarily from whales being struck by large ships and entangled in commercial fishing gear. These human-influenced mortalities were compounded in the 1990s by particularly low calf production, possibly caused by insufficient prey, disease, endocrine disruption from pollution, or other unknown factors.

The National Marine Fisheries Service (NMFS) and the U.S. Coast Guard have implemented measures to reduce harmful human interactions with right whales. Following a number of lawsuits beginning in 1994 that alleged various violations of federal law, actions were undertaken by the Commonwealth of Massachusetts, NMFS, and the Coast Guard to increase the protection afforded North Atlantic right whales. Meetings between shipping industry representatives and NMFS continue in an effort to identify management options for reducing ship strikes. NMFS has issued ship operating requirements, including recommended routes and maximum allowable speeds, as well as restrictions on allowable types of commercial fishing gear, for areas in which right whales are known to congregate. At this time, it is too early to determine the impact of these efforts.

Some proponents of the increasingly restrictive measures to increase protection for North Atlantic right whales argue that current efforts do not provide enough protection for the whales or adequately meet their biological needs; others (especially those in the shipping and commercial fishing industries) contend that these restrictions place unwarranted or unnecessary limits on industries that are already overburdened with regulations.


Date of Report: June 6, 2011
Number of Pages: 16
Order Number: RL30907
Price: $29.95

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