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Monday, October 31, 2011

Wilderness Laws: Statutory Provisions and Prohibited and Permitted Uses


Ross W. Gorte
Specialist in Natural Resources Policy

The 1964 Wilderness Act established a National Wilderness Preservation System of federal lands “where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.” The act designated 54 wilderness areas with 9.1 million acres within the national forests and reserved to Congress the authority to add areas to the system. Congress has enacted 117 subsequent statutes designating wilderness areas (including one with 16 wilderness-related subtitles) and 8 other statutes requiring wilderness study or otherwise significantly affecting wilderness areas. Many of these statutes provide management direction for designated areas that differs from the Wilderness Act provisions. As of December 31, 2010, the system totaled 759 wilderness areas with 109.7 million acres of federal land.

The Wilderness Act and other wilderness statutes have contained many provisions related to the administration of the areas. All but three direct management in accordance with the Wilderness Act. Provisions prohibiting buffer zones around designated areas are common. Many also preserve existing state jurisdiction and responsibilities over fish and wildlife, while some preserve other jurisdictions and authorities, such as for law enforcement and cooperation with other federal, state, and local agencies. Water rights has been a controversial issue—some statutes have neither claimed nor denied water rights, some have reserved water rights, and others have directed no claim to water. Several statutes have directed wilderness study of potentially qualified lands, and have designated intended or potential wilderness, contingent upon some future condition or event. Concern about protection of the study areas has led Congress to include provisions addressing interim management and release of areas during and after the studies.

The Wilderness Act generally prohibits commercial activities within wilderness areas, although it allows commercial activities related to wilderness-type recreation. The act also generally prohibits motorized and mechanical access, and roads, structures, and other facilities within wilderness areas. Although wilderness is generally open to other public uses, some wilderness statutes have authorized temporary closures for various reasons. Also, many statutes have withdrawn the designated areas from the public land disposal laws, the mining and mineral leasing laws, and from the laws authorizing the disposal of common mineral materials. However, valid existing rights are not terminated, and can be developed under reasonable regulations.

The Wilderness Act and many subsequent wilderness statutes have also allowed various nonconforming uses and conditions. Motorized access has generally been permitted for management requirements and emergencies, for nonfederal inholdings, and for fire, insect, and disease control. Continued motorized access and livestock grazing have also generally been permitted where they had been occurring prior to the area’s designation as wilderness. Construction, operations, and maintenance, and associated motorized access, have also been permitted for water infrastructure and for other infrastructure in many instances. Motorized access for state agencies for fish and wildlife management activities has sometimes been explicitly allowed. Low-level military overflights of wilderness areas have been permitted in several statutes. Access for minerals activities has been authorized in some specific areas and for valid existing rights; the Wilderness Act specifically allowed for mineral prospecting and for establishing mineral rights for 20 years after enactment. Finally, several statutes have allowed access for other specific activities, such as access to cemeteries within designated areas or for tribal activities.



Date of Report: October 1
7, 2011
Number of Pages:
86
Order Number: R416
49
Price: $29.95

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The Endangered Species Act (ESA) in the112th Congress: Conflicting Values and Difficult Choices

Eugene H. Buck
Specialist in Natural Resources Policy

M. Lynne Corn
Specialist in Natural Resources Policy

Kristina Alexander
Legislative Attorney

Pervaze A. Sheikh
Specialist in Natural Resources Policy

Robert Meltz
Legislative Attorney


The Endangered Species Act (ESA; P.L. 93-205, 16 U.S.C. §§1531-1543) was enacted to increase protection for, and provide for the recovery of, vanishing wildlife and vegetation. 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. Habitat loss is the primary cause for listing species. Once a species is listed, powerful legal tools are available to aid its recovery and protect its habitat. Accordingly, when certain resources are associated with listed species— such as water in arid regions like California, old growth timber in national forests, or free-flowing rivers—ESA is seen as an obstacle to continued or greater human use of these resources. ESA may also be controversial because dwindling species are usually harbingers of broader ecosystem decline or conflicts. As a result, ESA is considered a primary driver of large-scale ecosystem restoration issues.

The 112th Congress may conduct oversight of the implementation of various federal programs and laws that address threatened and endangered species. This could range from addressing listing and delisting decisions under ESA to justifying funding levels for international conservation programs. The 112th Congress may also face specific resource conflicts involving threatened and endangered species, including managing water supplies and ecosystem restoration in San Francisco Bay and the Sacramento and San Joaquin Rivers Delta in California (i.e., Bay-Delta) and managing water supplies in the Klamath Basin. In the 112th Congress, resource-specific issues may be addressed independently, whereas oversight on the implementation of ESA may be addressed in debates about particular species (e.g., wolves, polar bears, and salmon). P.L. 112-10 (final appropriations for FY2011) included a legislative delisting of a portion of the reintroduced Rocky Mountain gray wolf population.

The 112th Congress may consider legislation related to global climate change that includes provisions that would allocate funds to the 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, 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 were enacted. No legislative proposals were introduced in the 110th or 111th Congresses to reauthorize ESA.

This report discusses oversight issues and legislation introduced in the 112th Congress to address ESA implementation and management of endangered and threatened species.



Date of Report: October 19, 2011
Number of Pages: 23
Order Number: R41608
Price: $29.95

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Sunday, October 30, 2011

Biomass and Cellulosic Biofuels

Title: Biomass and Cellulosic Biofuels

Important bills have been enacted in recent years with major impacts on the biofuels industry. First, the Energy Policy Act of 2005 (EPAct, P.L. 109-58) established a renewable fuel standard (RFS) that mandated minimum-use volumes of biofuels in the national transportation fuel supply. Second, the Energy Independence and Security Act of 2007 (EISA, P.L. 110-140) greatly expanded the RFS. In particular, under EISA the biofuels mandate, or RFS, expands from 9 billion gallons in 2008 to 36 billion gallons in 2022, with special carve-outs for advanced biofuels (i.e., non-corn-starch ethanol), cellulosic biofuels, and biodiesel. Finally, the Food, Conservation, and Energy Act of 2008 (the farm bill, P.L. 110-246) extended and expanded incentives for ethanol production, extended tariffs on imported ethanol, and promoted use of biobased products.

The Environmental Protection Agency (EPA), the federal agency in charge of administering the RFS program, announced final rules (February 3, 2010) for implementing the RFS. In addition to the specific volume mandates, the new rules implement mandatory reductions in life-cycle greenhouse gas (GHG) emissions for each biofuels category, and restrictions on the type and nature of feedstocks used to produce RFS-qualifying biofuels.

Congress will likely be confronted with the ability (or inability) of the U.S. biofuels sector to expand production capacity to meet the ever-increasing RFS mandate. U.S. biofuels production has easily exceeded the RFS since its inception in 2005 and through 2009. However, in 2010 U.S. biofuels production appeared on the verge of bumping up against the so-called “blend wall”—the 10% blending limit of ethanol to gasoline in U.S. transportation fuel—which could challenge the industry’s ability to meet the RFS mandate in the future. Blend wall aside, as the RFS mandate for biofuels steadily increases and becomes binding, it will have important consequences for food and energy markets. The short-lived commodity price spikes of mid-2008 hinted at the potential conflict associated with conversion of domestic food crops to biofuels.

In an attempt to shift biofuels policy distortions away from livestock feed and other markets, both EISA and the 2008 farm bill redirect biofuels research and development emphasis to cellulosic biofuels, since they can potentially be produced from non-food feedstocks such as crop residues, dedicated energy crops, and woody biomass. Under EISA the cellulosic biofuels mandate grows quickly from 100 million gallons per year (mgpy) in 2010 to 16 billion gallons by 2022. As a result, after 2015, most of the increase in the overall RFS is intended to come from cellulosic biofuels rather than corn-starch ethanol. However, the speed of cellulosic biofuels development remains a major uncertainty and currently lags the schedule set in EISA.

Congress might face issues relating to cellulosic biofuels production such as the effectiveness of incentives to spur commercial viability. Under EISA, EPA is required to calibrate annual fuel-use mandates based on expected production capacity. In early 2010, cellulosic biofuels were being produced in the United States on a very small, non-commercial, scale, thus making the 100 mgpy mandate a daunting target. As a result, the EPA announced (Feb. 3, 2010) a reduction in the 2010 cellulosic biofuels RFS to 6.5 million gallons. Then, on Nov. 29, 2010, in its final rule on 2011 RFS mandates, EPA announced a 2011 cellulosic biofuels mandate of 6.6 mgpy, down from the 250 mgpy scheduled in EISA.

Waivers are built into EISA to accommodate shortfalls if the U.S. biofuels industry (with imports) fails to meet the RFS. If shortfalls are expected to continue to occur, Congress might debate legislative remedies such as changing eligibility requirements or reducing RFS volumes to accommodate potential long-term shortfalls.

Another contentious biofuels issue confronting Congress involves the challenges of an expansion of the ethanol-to-gasoline blend rate from 10% (E10) to 15% (E15). In the absence of such an expansion, many in the ethanol industry fear that the blend wall will limit the ability of the U.S. fuel market to absorb further production increases in ethanol. The resulting surplus, if it were to occur, would likely depress biofuels prices and investment. The EPA has been reviewing this issue and, on October 13, 2010, issued a partial waiver for E15 for use in model year 2007 or newer light-duty motor vehicles. A decision on the use of E15 in model year 2001-2006 vehicles is expected in early 2011 after EPA receives the results of additional Department of Energy testing. However, EPA has announced that no waiver would be granted for E15 use in model year 2000 and older light-duty motor vehicles, as well as in any motorcycles, heavy duty vehicles, or non-road engines. Numerous changes have to occur before gas stations will begin selling E15, including many approvals by states and potentially significant infrastructure changes (pumps, storage tanks, etc.). As a result, the vehicle limitation to newer models, coupled with infrastructure issues, are likely to limit a rapid expansion of blending rates.

From an international perspective, Brazil and the United States are leading biofuels producers and the European Union is a major consumer and importer. Numerous biofuels trade issues are areas of debate for Congress during the 112th Congress. A leading trade issue is the $0.54 per gallon tariff that the United States applies to ethanol imported from most countries. Although the tariff was implemented to offset benefits intended for U.S.-produced biofuels, it raises the price of ethanol and reduces potential supply, a key issue in light of the RFS. Furthermore, the domestic tax credit for ethanol has been reduced gradually over time from $0.54 per gallon to $0.45 per gallon today. As a result, the tariff not only offsets the domestic benefit, but imposes a punitive charge of $0.09 per gallon on qualifying imported ethanol.

Another trade-related biofuels issue is the unexpected expansion of U.S. ethanol exports during 2010 in stark contrast to the often-stated policy goal of biofuels production contributing to U.S. energy independence. Some question the extent to which U.S. biofuels subsidies should be maintained for fuel that is not used in the U.S. fuel market.


Date of Compendium: September 29, 2011
Number of Pages: 176
Order Number: IS40254
Price: $49.95 (Subscribers to Congressional Research Report newsletter pay $29.97)

Friday, October 28, 2011

Inland Waterways: Recent Proposals and Issues for Congress

Charles V. Stern
Analyst in Natural Resources Policy

Inland waterways are a significant part of the nation’s transportation system. Because of the national economic benefits of maritime transport, the federal government has invested in navigation infrastructure for two centuries. As a result, barge shipping has received significant support through federal funding for operational costs, capital expenditures, and major rehabilitation on inland waterways. Since the Water Resources Development Act of 1986, expenditures for construction and major rehabilitation projects on inland waterways have been cost-shared on a 50/50 basis between the federal government and users through the Inland Waterway Trust Fund (IWTF). Operations and maintenance costs for inland waterways typically exceed these construction costs, and are a 100% federal responsibility pursuant to WRDA 1986.

Future financing for the inland waterway system is uncertain. The IWTF is currently supported by a $0.20 per gallon tax on barge fuel, but the trust fund’s balance has declined significantly in recent years. Without major changes to the current user revenue stream or the federal/non-federal cost-share requirements for construction, spending on inland waterway projects may be limited.

Previous administrations have recommended replacing the fuel tax with one or more user fees that would increase revenues beyond their current baseline. However, Congress and industry interests have rejected these proposals. In 2010, the Inland Waterways Users Board (IWUB), a federal advisory committee advising the U.S. Army Corps of Engineers on inland waterways, endorsed an alternative proposal that is supported by many barge industry interests. The proposal would increase the fuel tax by $0.06-$0.08 per gallon, but would also require an even greater increase to the federal share of inland waterway costs (i.e., increased costs borne by the federal government). Recently, the Obama Administration included its own proposal among the recommendations to the Joint Committee on Deficit Reduction. It would increase user fees by levying a two-tiered system of annual fees on waterway users: a fee for all vessels operating on inland waterways, and a separate (greater) fee on vessels that use locks. The Administration estimated that the fees would raise $1.1 billion in new revenue over 10 years. These revenues would be in addition to those received under the IWTF fuel tax.

The user industry (including the barge industry and agricultural groups) argues that changes are necessary to shore up the trust fund, improve the deteriorating state of inland waterway infrastructure, and distribute cost responsibilities more equitably among those who benefit from the system (i.e., more funding by federal taxpayers). They argue that these changes would support jobs for a vital component of the nation’s transportation mix. The Obama Administration agrees that major changes are needed to meet new infrastructure needs, but argues against increased costs for the federal government. Some taxpayer and environmental advocacy groups call for an increased share of waterway costs to be borne by users (i.e., a decreased share for the federal government), and have also suggested that operations and maintenance costs should also be a user responsibility.

Congress may consider whether to increase the overall level of inland waterway funding in the future (and by what amount); the appropriate type of user fee to fund the nonfederal share of these costs (fuel taxes, lockage fees, etc.); and the division of cost-share responsibilities between the federal government and commercial users for both construction and operations and maintenance costs.



Date of Report: October 17, 2011
Number of Pages: 30
Order Number: R41430
Price: $29.95

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Monday, October 24, 2011

The Endangered Species Act (ESA) in the112th Congress: Conflicting Values and Difficult Choices

Eugene H. Buck
Specialist in Natural Resources Policy

M. Lynne Corn
Specialist in Natural Resources Policy

Kristina Alexander
Legislative Attorney

Pervaze A. Sheikh
Specialist in Natural Resources Policy

Robert Meltz
Legislative Attorney


The Endangered Species Act (ESA; P.L. 93-205, 16 U.S.C. §§1531-1543) was enacted to increase protection for, and provide for the recovery of, vanishing wildlife and vegetation. 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. Habitat loss is the primary cause for listing species. Once a species is listed, powerful legal tools are available to aid its recovery and protect its habitat. Accordingly, when certain resources are associated with listed species— such as water in arid regions like California, old growth timber in national forests, or free-flowing rivers—ESA is seen as an obstacle to continued or greater human use of these resources. ESA may also be controversial because dwindling species are usually harbingers of broader ecosystem decline or conflicts. As a result, ESA is considered a primary driver of large-scale ecosystem restoration issues.

The 112th Congress may conduct oversight of the implementation of various federal programs and laws that address threatened and endangered species. This could range from addressing listing and delisting decisions under ESA to justifying funding levels for international conservation programs. The 112th Congress may also face specific resource conflicts involving threatened and endangered species, including managing water supplies and ecosystem restoration in San Francisco Bay and the Sacramento and San Joaquin Rivers Delta in California (i.e., Bay-Delta) and managing water supplies in the Klamath Basin. In the 112th Congress, resource-specific issues may be addressed independently, whereas oversight on the implementation of ESA may be addressed in debates about particular species (e.g., wolves, polar bears, and salmon). P.L. 112-10 (final appropriations for FY2011) included a legislative delisting of a portion of the reintroduced Rocky Mountain gray wolf population.

The 112th Congress may consider legislation related to global climate change that includes provisions that would allocate funds to the 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, 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 were enacted. No legislative proposals were introduced in the 110th or 111th Congresses to reauthorize ESA.

This report discusses oversight issues and legislation introduced in the 112th Congress to address ESA implementation and management of endangered and threatened species.



Date of Report: October 11, 2011
Number of Pages: 22
Order Number: R41608
Price: $29.95

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Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.