Kristina Alexander
Legislative Attorney
Ross W. Gorte
Specialist in Natural Resources Policy
Roadless areas in the National Forest System (NFS) have received special attention for decades. Many want to protect their relatively pristine condition; others want to use the areas in more developed ways.
Two different roadless area policies have been offered in the last decade. On January 12, 2001, the Clinton Administration’s roadless area policy established a nationwide approach to managing roadless areas in the National Forest System to protect their pristine conditions. The Nationwide Rule, as it will be called in this report, generally prohibited road construction and reconstruction and timber harvesting in 58.5 million acres of inventoried roadless areas, with significant exceptions. The Bush Administration initially postponed the effective date of the Nationwide Rule, then issued its own rule that allowed states to plan how roadless areas were managed. It issued a new rule on May 13, 2005. The State Petition Rule allowed governors to petition the Secretary of Agriculture for a special rule for managing the inventoried roadless areas in their states.
Both rules were heavily litigated, with the Ninth Circuit ultimately holding that the Nationwide Rule should be in place, and the Tenth Circuit still considering an appeal as to whether that rule is valid. The first action halted implementation of the Nationwide Rule in 2001, but was reversed by the Ninth Circuit. In 2003, the federal District Court for Wyoming permanently enjoined implementation of the Nationwide Rule. This holding was dismissed as moot by the Tenth Circuit in light of the 2005 State Petition Rule. In 2006, the federal District Court for Northern California enjoined the State Petition Rule, and directed the Administration to apply the Nationwide Rule until it had complied with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). Instead, the Forest Service allowed governors to petition for a roadless area management rule for their states under the Administrative Procedure Act (APA). Idaho and Colorado filed petitions under this process. The Idaho petition was approved in October 2008, and upheld by a federal court in 2011. Colorado filed and then twice amended its petition, which is still pending.
In the meantime, a new lawsuit in Wyoming led to a second injunction of the Nationwide Rule by that district court. In August 2009, the Ninth Circuit upheld the California district court ruling that the State Petition Rule was invalid and that the Nationwide Rule should be in place nationwide. The appeal of the Wyoming injunction, pending in the Tenth Circuit, could lead to a conflict between the circuits, potentially creating an issue for the U.S. Supreme Court or Congress, unless the Forest Service initiates a new rule.
Following the Ninth Circuit decision, the Secretary of Agriculture reserved decisions related to timber harvesting and road construction in roadless areas to the Secretary. Much of that authority was subsequently delegated to the Chief of the Forest Service.
The Tongass National Forest has taken its own route. At first it was included in the Nationwide Rule, but then was temporarily exempted from the rule. That temporary exemption seemed moot when the State Petition Rule came into effect, but after the Ninth Circuit ruling that the Nationwide Rule applied, it was unclear whether the Tongass was still exempt. In March 2011, a federal court ruled it was not, and that the roadless areas in the Tongass National Forest were covered under the Nationwide Rule.
Date of Report: March 10, 2011
Number of Pages: 22
Order Number: RL30647
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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).
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: March 10, 2011
Number of Pages: 18
Order Number: R41608
Price: $29.95
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Curry L. Hagerty
Specialist in Energy and Natural Resources Policy
Moratoria measures for the outer continental shelf (OCS) establish bans or restrictions on oil and gas exploration and development in federal ocean areas. With some exceptions for marine sanctuaries and monuments, no portion of the federal OCS has a permanent moratorium on oil and gas leasing and development. While some areas are under temporary development bans, such as suspensions or moratoria directed by either legislative or executive powers, most of the OCS is free of such restrictions and is considered permissible for offshore leasing activity.
Aspects of moratorium policy (either establishing or lifting temporary bans on oil and gas exploration and development) are derived from legislative and executive powers to direct offshore leasing activities. A shift in both legislative and executive moratorium policy during the 111th Congress signaled an end to measures that had banned development in some OCS areas since the early 1980s. Legislative moratoria enacted annually by Congress for about 27 years as part of the Department of the Interior appropriations acts expired on September 30, 2008. In areas where OCS leasing restrictions were changed, some preliminary oil and gas leasing activity has commenced, but no lease sales have been held.
Support for three national objectives coalesced in 2009, resulting in the removal of most congressional and executive constraints on oil and gas exploration and development: (1) promoting domestic energy production to improve the nation’s energy security, (2) enhancing federal revenue, and (3) spurring innovation and diversification in ocean energy technologies to help create new jobs. The shift in moratorium policy, along with two other developments—the start of federal offshore renewable ocean energy projects (e.g., offshore wind farms) and expanded oil and gas prospecting in deepwater areas—increased the responsibilities of the federal offshore energy program.
Around the world, changing ocean energy policies are affecting how nations govern offshore areas. Economic pressures and technological advances are driving changes in moratorium policy as the global search for energy reaches into deeper ocean waters. A number of countries are revisiting policies about offshore areas, and some countries are making claims to expand their reach for offshore resources. One venue for claims of this nature is the United Nations Convention on the Law of the Sea (UNCLOS). Although the United States has not ratified UNCLOS, the State Department has taken measures to address the U.S. extended continental shelf areas in a manner not inconsistent with the UNCLOS process. These measures signal changes in U.S. policies about moratorium areas.
In the aftermath of the Deepwater Horizon oil spill, the regulatory context is unsettled, and policymakers are considering many different offshore program options to restore normalcy in the Gulf region. Due to uncertainty regarding recent developments in the Gulf of Mexico, the role of moratorium policy, among other policy alternatives, is unclear. From this perspective, how or if moratorium policy will be a consideration during the 112th Congress is a matter of conjecture.
Date of Report: March 10, 2011
Number of Pages: 19
Order Number: R41132
Price: $29.95
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Ross W. Gorte
Specialist in Natural Resources Policy
U.S. forests are primarily temperate forests, often with relatively few species dominating over wide areas. Such forests respond and adapt to an array of environmental factors—sunlight levels and duration, temperature, precipitation, and a multitude of disturbances (e.g., fires, pests, and storms)—and these factors could be further altered by long-term shifts in natural climate variability and climate change. Many domestic forests are already under stress from drought, severe wildfires, and insect epidemics. Changing conditions and disturbances could diminish the goods and services that forests provide—timber, clean water, scenic vistas, carbon sequestration, and much more. Forests can be subject to management techniques to improve their resilience and adaptability, to assure continued production of the economically desired ecosystem goods and services.
Congress provides management direction and funding for federal forests and financial and technical assistance for management of nonfederal forests. To date, such legislative direction and funding have at most indirectly encouraged management that promotes resilient forests. Congress could decide to broaden its role in promoting resilient and adaptable forests. However, thus far, no broad-based legislation has been introduced calling for direct federal forest management and nonfederal forestry assistance to sustain forests in the face of changing conditions.
Biologically diverse forests are generally more resilient (better able to recover from changes and disturbances) and more adaptable (better able to respond to changing conditions), because they have a broader biological base from which to respond. Diversity occurs at the genetic level (among trees of a given species), at the species level (among trees in a stand), and at the stand level (among the ages and sizes of trees in a stand). Many are concerned that climate change and increased climate volatility may be too rapid for natural adaptation and migration to sustain production of the desired goods and services, because some species require special habitat conditions and because forest fragmentation from human development hinders forest migration. Others argue that natural variability is sufficient to sustain forests, even in the face of climate change.
Research and monitoring are important components of understanding the extent and success of forest management efforts to promote resilient and adaptable forests. Management efforts could then respond to changing forest conditions by adjusting traditional forestry practices (e.g., prescribed burning, thinning, timber harvesting, tree planting, and more) or even by taking more intensive action to assist forest adaptation (e.g., reducing habitat fragmentation, creating habitat corridors, and assisting species relocation). A question for Congress and resource managers is whether or how to fund and implement research and monitoring programs to provide information for forest management in a time of changing conditions.
Date of Report: March 14, 2011
Number of Pages: 28
Order Number: R41691
Price: $29.95
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Kristina Alexander
Legislative Attorney
M. Lynne Corn
Specialist in Natural Resources Policy
After near eradication of the gray wolf from the lower 48 states in the first half of the 20th century, the wolf was on the Endangered Species Act’s (ESA’s) first list of endangered species, divided into two subspecies—the Eastern Timberwolf and the northern Rocky Mountain wolf. In 1978 the wolf was listed at the species level (the gray wolf) as endangered in all of the conterminous 48 states except Minnesota, where it was listed as threatened. With the exception of experimental populations established in the 1990s, in which the U.S. Fish and Wildlife Service (FWS) reintroduced wolves to selected areas, protections for the gray wolf have diminished as wolf populations have increased in some areas—such as in the Northern Rocky Mountains. The use of distinct population segments (DPSs), a term created in the 1978 ESA amendments, has played a role in that reduced protection. DPSs allow vertebrate species to be divided into distinct groups, based on geography and genetic distinctions. This report analyzes the DPS designation process as it is applied to the gray wolf. It also examines experimental populations of wolves under the ESA.
Experimental populations (Ex Pops) of wolves were reintroduced in three regions in the United States in the 1990s: the Central Idaho population, the Yellowstone population, and the Blue Range population in Arizona and New Mexico (known as Mexican gray wolves). The Ex Pops in Central Idaho and Yellowstone have grown to over 1,700 wolves as of December 2009, while the Mexican gray wolf population has not surpassed 59 wolves, and as of January 2011 totaled 50.
ESA protection for wolf DPSs has changed back and forth 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. In 2003, FWS determined that because of the population size, the Western and Eastern DPSs no longer needed the protection of the ESA, and so those DPSs were downlisted from endangered to threatened. Courts nullified the rulemaking. In 2007, FWS designated and delisted the Western Great Lakes DPS, and in early 2008, FWS designated and delisted the Northern Rocky Mountain DPS. However, courts found both delistings flawed and vacated both rulemakings. In December 2008, FWS returned wolves to their former protected status, eliminating the DPSs, and redesignating the wolves in southern Montana, southern Idaho, and all of Wyoming as “nonessential experimental populations.” In April 2009, FWS again established DPSs in the Western Great Lakes and the Northern Rockies and delisted both populations except for in Wyoming. FWS was sued regarding the Western Great Lakes delisting and settled the case, returning the population to its previous status (threatened and endangered). In August 2010, a court ruled that the Northern Rockies delisting violated the ESA, directing that the delisting be declared invalid. The Northern Rockies wolves were returned to their experimental population status, meaning they are treated as threatened in most circumstances but are endangered outside of the Ex Pop boundaries.
Some Members of the 112th Congress responded to court nullification of the regulatory delistings by proposing legislation to eliminate all protections of the gray wolf nationwide under the ESA (H.R. 509—Rehberg; S. 249—Hatch), to let states decide how to protect wolves found in Idaho and Montana (H.R. 510—Rehberg), or to direct FWS to reissue the regulatory delisting of April 2009, making the rule immune from judicial review (H.R. 1, § 1713—Simpson). If passed, the delisting bill would be the first law to delist a species under the ESA. The 111th Congress also had proposed legislation to restrict protection of the wolf. Three House bills would have reduced or eliminated ESA protections of the gray wolf: H.R. 6028, H.R. 6485, and H.R. 6486. Two Senate bills took more regional approaches addressing wolves in the Northwest: S. 3825 and S. 3864.
Date of Report: February 28, 2011
Number of Pages: 22
Order Number: RL34238
Price: $29.95
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