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Tuesday, November 29, 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 for 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: November 17, 2011
Number of Pages: 23
Order Number: R41608
Price: $29.95

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Monday, November 21, 2011

Fishery, Aquaculture, and Marine Mammal Issues in the 112th 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. Aquaculture or fish farming enterprises seek to supplement food traditionally provided by wild harvests.

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 in the federal exclusive economic zone (EEZ), the federal government (National Marine Fisheries Service, NMFS) 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 112th Congress may oversee implementation of the MSFCMA as well as address individual habitat and management concerns for U.S. commercial and sport fisheries in an attempt to modify the balance between resource use and protection. Additional concerns might include providing additional flexibility in managing harvests to eliminate overfishing; determining the appropriate level of funding for fishery disaster assistance; determining whether to modify fishing vessel capacity reduction and limited access privilege (catch-share) programs; modifying programs to better control bycatch of nontarget species; amending various fishery laws to strengthen enforcement to stop illegal, unreported, and unregulated fishing; amending and reauthorizing the Oceans and Human Health Act; amending and reauthorizing the Coral Reef Conservation Act; enhancing efforts to monitor, restore, and protect marine ecosystems in the Gulf of Mexico; implementing the Antigua Convention for eastern tropical Pacific tuna; authorizing a national strategy to address harmful algal blooms and hypoxia; and providing additional support to maintain the character of traditional fishing communities.

Aquaculture—the farming of fish, shellfish, and other aquatic animals and plants in a controlled environment—is expanding rapidly abroad, yet with little growth in the United States. In the United States, important species cultured include catfish, salmon, shellfish, and trout. The 112th Congress may consider whether National Oceanic and Atmospheric Administration policies and regulations can balance development and regulation of the aquaculture industry in the U.S. EEZ, and whether to prohibit regional fishery management councils from authorizing aquaculture in federal offshore waters through fishery management plans and their amendments under the MSFCMA.

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 permits are obtained. It also addresses specific situations of concern, such as dolphin mortality associated with the eastern tropical Pacific tuna fishery. The 112th Congress may consider bills to amend the MMPA, including the John H. Prescott Marine Mammal Rescue Assistance Grant Program, 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 and an expanded research program for the recovery of the southern sea otter.

The level of appropriations for fisheries, aquaculture/hatchery, and marine mammal programs administered by the NMFS and the Fish and Wildlife Service may be an issue during the 112th Congress amid pressures to reduce federal spending.



Date of Report: November 9, 2011
Number of Pages: 30
Order Number: R41613
Price: $29.95

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Document available via e-mail as a pdf file or in paper form.
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Friday, November 18, 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: November 8, 2011
Number of Pages: 23
Order Number: R41608
Price: $29.95

Follow us on TWITTER at
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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.

Wednesday, November 9, 2011

Gray Wolves Under the Endangered Species Act (ESA):Distinct Population Segments and Experimental Populations


Kristina Alexander
Legislative Attorney

M. Lynne Corn
Specialist in Natural Resources Policy


The wolf was nearly eradicated from the lower 48 states in the first half of the 20th century. In 1974 U.S. Fish and Wildlife Service (FWS) placed gray wolf subspecies, the eastern timber wolf, the Mexican wolf, and the northern Rocky Mountain wolf, on the Endangered Species Act’s (ESA) first list of endangered species. In 1978 FWS replaced the subspecies listings by listing the gray wolf species (Canis lupus) as endangered in all of the conterminous 48 states except Minnesota, where FWS listed it as threatened. In 2011 FWS found that this listing was in error; that more targeted regional units were appropriate for wolves (notably in the Southwest and Pacific Northwest); that a newly recognized species, the eastern wolf (Canis lycaon), not the gray wolf, occupied the Northeast; and that all or parts of 29 eastern states should be removed from the gray wolf’s historic range.

With the exception of experimental populations (Ex Pops) of gray wolves that FWS established in order to reintroduce wolves to selected areas, protections for the gray wolf have diminished as wolf populations have increased in areas such as the Northern Rocky Mountains. The use of distinct population segments (DPSs), a term created in the 1978 ESA amendments, has played a role in reduced protection. Through DPSs, vertebrate species may be divided into distinct groups, based on geography and genetic distinctions for listing purposes.

Ex Pops of wolves were reintroduced in three regions of the United States in the 1990s: Central Idaho, Yellowstone, and the Blue Range of Arizona and New Mexico. The Ex Pops in Central Idaho and Yellowstone have grown to over 1,650 wolves as of December 31, 2010, while the Mexican gray wolf population of the Blue Range has not surpassed 59 wolves, and as of January 2011 totaled 50.

ESA protection for wolf DPSs has varied since the first DPSs, Western, Eastern, and Southwestern, were proposed in 2003. Each effort by FWS to delist the wolf or designate a DPS has been rejected by a court or settled by the agency. Most recently, the April 2009 rules that had established and then delisted DPSs in the Western Great Lakes and the Northern Rockies were nullified as a result of litigation. As a consequence, the Northern Rockies wolves resumed their Ex Pop status, meaning they were treated as threatened in most circumstances but were endangered outside of the Ex Pop boundaries. Wolves in the rest of the lower 48 states were again endangered, with the exception of Minnesota wolves, which were threatened.

The April 2009 rule for the Northern Rockies was the topic of legislation in April 2011, when Congress took the unusual step of directing FWS to delist an endangered species. Section 1713 of P.L. 112-10 required FWS to reissue the 2009 Northern Rockies DPS rule. FWS’s reissuance of that rule on May 5, 2011, ended federal protection of the gray wolf in Montana, Idaho, eastern Washington, eastern Oregon, and north-central Utah, but kept the wolf as a listed species in the remainder of the lower 48 states. Also on May 5, 2011, FWS proposed designating a DPS in the Western Great Lakes area and delisting those gray wolves. On October 5, 2011, FWS proposed delisting the wolves in the Wyoming DPS and terminating the Ex Pop. The proposal is contingent upon the Wyoming legislature’s passing certain management requirements.

This report analyzes the ESA as it applies to gray wolves and, in particular, Ex Pops and DPSs.



Date of Report: November 1, 2011
Number of Pages: 34
Order Number: RL34238
Price: $29.95

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Document available via e-mail as a pdf file or in paper form.
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Friday, November 4, 2011

The Endangered Species Act and “Sound Science”


Eugene H. Buck
Specialist in Natural Resources Policy

M. Lynne Corn
Specialist in Natural Resources Policy

Kristina Alexander
Legislative Attorney


The adequacy of the science supporting implementation of the Endangered Species Act (ESA) is receiving increased congressional attention. While some critics accuse agencies responsible for implementing the ESA of using “junk science,” others counter that decisions that should rest on science are instead being dictated by political concerns.

Under the ESA, certain species of plants and animals (both vertebrate and invertebrate) are listed as either endangered or threatened according to assessments of the risk of their extinction. Once a species is listed, powerful legal tools are available to protect the species and its habitat. Efforts to list, protect, and recover threatened or endangered species under the ESA can be controversial. Some of this controversy stems from the substantive provisions of this law, which can affect the use of both federal and nonfederal lands. The scientific underpinnings of decisions under the ESA are especially important, given their importance for species and their possible impacts on land use and development.

The Fish and Wildlife Service in the Department of the Interior and the National Marine Fisheries Service in the Department of Commerce administer the ESA, and each agency has policies and requirements to ensure the integrity and objectivity of the science that underlies ESA decisions. The Information Quality Act (IQA or Data Quality Act) also imposes general requirements and has resulted in agency changes to carry out the goals of that act to maximize the quality, objectivity, utility, and integrity of information disseminated by the agencies.

In several situations, economic and social disputes have resulted from actions taken to list, protect, and recover species under the ESA. Critics in some of these disputes assert that the science supporting ESA actions is insufficiently rigorous. Others assert that in some instances decisions were political rather than scientific. Controversy has arisen over what might be the essential elements of “sound science” in the ESA process and whether the ESA might benefit from clarification of how science is to be used in its implementation. The courts have had occasion to review the use of science by the agencies, which generally must show their decisions were not arbitrary and rest on credible science. For some purposes, if that science is the best available, even if it is considered imperfect or incomplete, it still may be used.

Several bills affecting science as used in the ESA have been introduced in recent Congresses, but to date none have been enacted. Legislative activity in the 111th Congress is summarized in CRS Report R40185, The Endangered Species Act (ESA) in the 111th Congress: Conflicting Values and Difficult Choices, by Eugene H. Buck et al.

This report provides a context for evaluating legislative proposals through examples of how science has been used in selected cases, a discussion of the nature and role of science in general, and its role in the ESA process in particular, together with general and agency information quality requirements and policies, and a review of how the courts have viewed agency use of science.



Date of Report: October 26, 2011
Number of Pages: 30
Order Number: RL32992
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.