Robert Meltz
Legislative Attorney
The federal Endangered Species Act (ESA) has long been one of the major flash points in the “property rights” debate. This report outlines the ESA provisions most relevant to the act’s impacts on private property and surveys the major ESA-relevant principles of Fifth Amendment takings law. The report then proceeds to summarize the court decisions on whether particular government actions (or inaction) based on the ESA “take” private property under the Fifth Amendment. The cases to date address several kinds of ESA impacts on private property: (1) restrictions on land uses that might adversely affect species listed as endangered or threatened, and mitigation conditions to offset the impacts of development; (2) administrative delays; (3) reductions in water delivery or allowable water diversion to preserve lake levels or instream flows needed by listed fish (currently the most active area of ESA takings litigation); (4) restrictions on the defensive measures a property owner may take to protect his/her property from listed animals; and (5) restrictions on commercial dealings in listed species.
To date, only one of the 18 ESA-based takings cases disclosed by research, Tulare Lake Basin Water Storage District v. United States, has found a taking. However, two cases, Casitas Municipal Water District v. United States and Klamath Irrigation District v. United States, have yet to be finally resolved and may or may not result in holdings that takings occurred.
Date of Report: April 21, 2011
Number of Pages: 24
Order Number: RL31796
Price: $29.95
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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: April 21, 2011
Number of Pages: 23
Order Number: R41613
Price: $29.95
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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 largescale 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: April 29, 2011
Number of Pages: 20
Order Number: R41608
Price: $29.95
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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: April 26, 2011
Number of Pages: 3
Order Number: R40882
Price: $29.95
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M. Lynne Corn
Specialist in Natural Resources Policy
Beth A. Roberts
Information Research Specialist
Current law forbids energy leasing in the Arctic National Wildlife Refuge (ANWR) in northeastern Alaska. For several decades, a major energy debate has been whether to approve energy development in ANWR, and if so, under what conditions; or whether to continue to prohibit development to protect the area’s biological resources. ANWR is rich in fauna, flora, and commercial oil potential. Its development has been debated for over 40 years, but increases in gasoline and natural gas prices, terrorist attacks, infrastructure damage from hurricanes, and turmoil in the Middle East have intensified the debate.
This report provides a summary of legislative attempts to address issues of energy development and preservation in the Refuge from the 95th Congress through the 111th Congress, with emphasis on the 108th through 111th Congresses. This history provides a background for issues that may be raised in the current Congress. The focus of this report is past legislative actions that reached the floor of the House or Senate. The substance of the issue is covered in other CRS reports. Below are summarized actions in the 109th to 111th Congresses.
The ANWR debate took two basic legislative routes in the 109th Congress: (1) budget resolutions and reconciliation bills, which cannot be filibustered; and (2) other bills (an omnibus energy bill; Defense appropriations; and a bill in the second session to open the Refuge to development), which are subject to filibusters. In none of these measures did Congress reach agreement to allow development.
In the first session of the 110th Congress, the House rejected a motion to recommit H.R. 3221 to the Energy and Commerce Committee with instructions that it be reported back with language authorizing ANWR development. In the second session, the House rejected a motion to adjust budget levels to assume increased revenues from opening ANWR to development. Also in the second session, the Senate rejected an amendment to another bill to open ANWR to energy development.
During the 111th Congress, there were no floor votes in the House or the Senate on the Refuge.
Date of Report: April 21, 2011
Number of Pages: 20
Order Number: RL32838
Price: $29.95
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