Fishery, Aquaculture, and Marine Mammal Issues in the 111th 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. 

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, the federal government 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 111th Congress may oversee implementation of the MSFCMA as well as address individual habitat and management concerns for U.S. commercial and sport fisheries to achieve a sustainable balance between resource use and protection. Current concerns include whether additional effort should be taken to eliminate overfishing, how fishery disaster assistance should be funded, and whether to more aggressively encourage fishing vessel capacity reduction and limited access privilege programs. The 111th Congress has enacted P.L. 111-5, including language to broaden the basis for determining import increases for trade adjustment assistance for fishing and aquaculture to include wild-caught fish and seafood in addition to farmraised fish and seafood. In addition, P.L. 111-11 authorized implementation of the San Joaquin River Restoration Settlement providing for the reintroduction of Chinook salmon; extended the authorizations for the Upper Colorado and San Juan River Basin endangered fish recovery programs through FY2023; directed the Secretary of Commerce to establish an ocean acidification program within NOAA, and to establish an interagency committee to develop an ocean acidification research and monitoring plan; and reauthorized (through FY2015) and amend the Fisheries Restoration and Irrigation Mitigation Act of 2000. 

Aquaculture—the farming of fish, shellfish, and other aquatic animals and plants in a controlled environment—is expanding rapidly abroad, with more modest growth in the United States. In the United States, important species cultured include catfish, salmon, shellfish, and trout. The 111th Congress has enacted P.L. 111-5, including language (1) providing as much as $50 million in total assistance to aquaculture producers for losses associated with high feed input costs during the 2008 calendar year and (2) including National Fish Hatcheries as eligible for $165 million in resource management funding as well as $115 million in construction funding for the U.S. Fish and Wildlife Service. 

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 restrictive permits are obtained. It also addresses specific situations of concern, such as dolphin mortality, primarily associated with the eastern tropical Pacific tuna fishery. The 111th Congress may consider bills to reauthorize and amend the MMPA 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.


Date of Report: March 26, 2010
Number of Pages: 31
Order Number: R40172
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The Endangered Species Act (ESA) in the111th Congress: Conflicting Values and Difficult Choices

Eugene H. Buck
Specialist in Natural Resources Policy

M. Lynne Corn
Specialist in Natural Resources Policy

Pervaze A. Sheikh
Specialist in Natural Resources Policy

Robert Meltz
Legislative Attorney

Kristina Alexander
Legislative Attorney

The Endangered Species Act (ESA; P.L. 93-205, 16 U.S.C. §§ 1531-1543) has been one of the more contentious environmental laws. This may stem from its strict substantive provisions, which can affect the use of both federal and nonfederal lands and resources. 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. Once a species is listed, powerful legal tools are available to aid its recovery and protect its habitat. ESA may also be controversial because dwindling species are usually harbingers of broader ecosystem decline. The most common cause of species listing is habitat loss. ESA is considered a primary driver of large-scale ecosystem restoration issues. 

The 111th Congress has considered whether to revoke ESA regulations promulgated in the waning days of the Bush Administration that would alter when federal agency consultation is required. In addition, legislation related to global climate change includes provisions that would allocate funds to the U.S. 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, protection by and 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 was enacted. No legislative proposals were introduced in the 110th Congress to reauthorize the ESA. 

In the first session of the 111th Congress, P.L. 111-8 contained language authorizing the Secretary of the Interior to withdraw or reissue (1) revisions to the ESA Section 7 consultation regulations promulgated by the Bush Administration and (2) a December 2008 special rule that outlined protections afforded polar bears. In addition, P.L. 111-11 included provisions (1) authorizing the implementation of the San Joaquin River Restoration Settlement, providing for the reintroduction of Chinook salmon, and (2) amending P.L. 106-392 to extend the authorizations for the Upper Colorado and San Juan River Basin endangered fish recovery programs through FY2023. P.L. 111-88 appropriated about $281 million for U.S. Fish and Wildlife Service endangered species and related programs for FY2010. 

This report discusses oversight issues and legislation introduced in the 111th Congress to address ESA implementation and management of endangered and threatened species.


Date of Report: March 26, 2010
Number of Pages: 28
Order Number: R40185
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Agricultural Conservation: A Guide to Programs

Megan Stubbs
Analyst in Agricultural Conservation and Natural Resources Policy

The Natural Resources Conservation Service (NRCS) and the Farm Service Agency (FSA) in the U.S. Department of Agriculture (USDA) currently administer over 20 programs and subprograms that are directly or indirectly available to assist producers and landowners who wish to practice conservation on agricultural lands. The number, scope, and overall funding of these programs has grown in recent years. This growth can cause some confusion over which problems and conditions each program addresses, and specific program characteristics and performance. The programs are as follows: 

• Agricultural Management Assistance (AMA) Program 

• Chesapeake Bay Watershed Program 

• Conservation Operations (CO); Conservation Technical Assistance (CTA) 

• Conservation Reserve Program (CRP) 

• CRP—Conservation Reserve Enhancement Program (CREP) 

• CRP—Farmable Wetlands Program 

• Conservation Security Program 

• Conservation Stewardship Program (CSP) 

• Emergency Conservation Program (ECP) 

• Emergency Watershed Program (EWP) 

• Environmental Quality Incentives Program (EQIP) 

• EQIP—Agricultural Water Enhancement Program (AWEP) 

• EQIP—Conservation Innovation Grants (CIG) 

• Farmland Protection Program (FPP) 

• Grassland Reserve Program (GRP) 

• Healthy Forest Reserve Program (HFRP) 

• Resource Conservation and Development (RC&D) Program 

• Watershed and Flood Prevention Operations 

• Watershed Rehabilitation Program 

• Wetland Reserve Program (WRP) 

• Wildlife Habitat Incentive Program (WHIP) 

This tabular presentation provides basic information introducing each of the programs. In each case, a brief program description is followed by information on major amendments in the 2008 farm bill (P.L. 110-246); national scope and availability; states with the greatest participation; the backlog of applications or other measures of continuing interest; program funding authority; FY2010 estimated spending; the FY2011 Administration budget request; statutory authority; the authorization expiration date; and a link to the program's website.


Date of Report: March 25, 2010
Number of Pages: 23
Order Number: R40763
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Deforestation and Climate Change

Ross W. Gorte
Specialist in Natural Resources Policy

Pervaze A. Sheikh
Specialist in Natural Resources Policy

Efforts to mitigate climate change have focused on reducing carbon dioxide (CO2) emissions into the atmosphere. Some of these efforts center on reducing CO2 emissions from deforestation, since deforestation releases about 17% of all annual anthropogenic greenhouse gas (GHG) emissions and is seen as a relatively low-cost target for emissions reduction. Policies aimed at reducing deforestation are central points of a strategy to decrease carbon emissions, reflected in pending legislation in Congress (e.g., H.R. 2454 and S. 1733) as well as in international discussions, such as the December 2009 negotiations in Copenhagen. 

Forests exist at many latitudes. Many are concerned about the possible impacts of losing boreal and temperate forests, but existing data show little, if any, net deforestation, and their loss has relatively modest carbon consequences. In contrast, tropical deforestation is substantial and continuing, and releases large amounts of CO2, because of the carbon stored in the vegetation and released when tropical forests are cut down. 

There are many causes of tropical deforestation—commercial logging, large-scale agriculture (e.g., cattle ranching, soybean production, oil palm plantations), small-scale permanent or shifting (slash-and-burn) agriculture, fuel wood removal, and more. Often, these causes combine to exacerbate deforestation; for example, commercial logging often includes road construction, which in turn opens the forest for subsistence farmers. At times, tropical deforestation results from weak land tenure and/or weak or corrupt governance to protect the forests. 

Congress and international bodies are discussing various policies to reduce carbon emissions from deforestation and forest degradation (REDD). Reducing deforestation in the tropics is likely to have additional benefits as well, such as preserving biological diversity and sustaining livelihoods for the rural poor and for indigenous communities and cultures. Proposals may be adapted to address local and regional causes of deforestation. Various forestry practices can reduce the impacts of deforestation, and several market approaches are evolving to compensate landowners for preserving their forests. 

Many challenges remain for implementing REDD programs, particularly internationally, including monitoring REDD projects and improving developing-country capacity to ensure compliance. Existing evidence on forests and deforestation suggest the difficulties might be significant. Measuring forests is complicated, with multiple definitions, inaccessible sites, and expensive, complicated, and imperfect measurement technologies. 

This report provides basic information on forests and climate change. The first section discusses the linkages between forests and climate. The next three describe the characteristics of the three major forest biomes, with an overview of deforestation causes and impacts. This is followed by an overview of approaches to reducing deforestation. The final section examines issues related to forest and deforestation data.


Date of Report: March 24, 2010
Number of Pages: 45
Order Number: R41144
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Outer Continental Shelf Moratoria on Oil and Gas Development

Curry L. Hagerty
Specialist in Energy and Natural Resources Policy

Outer Continental Shelf (OCS) moratoria provisions, enacted as part of the Department of the Interior appropriations over the last 26 years, prohibited federal spending on oil and gas development in certain locations and for certain activities. Annual congressional moratoria restrictions expired on September 30, 2008. While the expiration of this restriction does not make leasing and drilling permissible in all offshore areas, it is a significant development in conjunction with other changes in offshore leasing activity. Change in moratoria policy signals a shift in policy that may affect other OCS policies as well. 

The goal to increase domestic OCS energy production was the chief policy justification for not restoring annual moratoria beyond FY2008. Other factors in not restoring moratoria restrictions include policies to diversify domestic energy production including the launch of OCS renewable energy programs, and the availability of new OCS technology that would allow OCS activity in deeper waters beyond clear jurisdictional boundaries. These developments, taken together, reflect transformative change in OCS policy alternatives. The impact of these developments during periods of volatility in oil markets and during an exceptionally weak economy, focuses congressional attention on federal priorities for OCS development. 

In the past, Congress has addressed OCS oil and gas development by balancing numerous factors, including (1) economic feasibility; (2) environmental risk; (3) technology; and (4) ocean sovereignty. Disagreement tends to arise in each of these four issue areas because of conflicting concerns over policy objectives between those in favor of offshore oil and gas development and those opposed. Positions are sharply divided on national and coastal state goals associated with OCS activities in former moratoria areas, and in prospective areas where drilling activities or renewable energy projects are permissible in the Gulf of Mexico and the Arctic. 

Around the world, offshore activities are changing and these changes are reflected in international offshore policy disagreements that are not dissimilar to domestic policy disagreements. Economic opportunity and technological advances are driving the global search for energy sources in deeper ocean waters. These activities may clash with national or international environmental policies. Within the framework of the United Nations Convention on the Law of the Sea (UNCLOS) a number of countries are active in establishing parameters for offshore activities, including preparing claims for extended continental shelf areas. Although the United States has not ratified UNCLOS, U.S. efforts are underway to address extended continental shelf areas in a manner not inconsistent with the UNCLOS process. 

Expiration of moratoria is part of a series of changes in domestic and international OCS energy development policy. Moratoria policy impacted federal-state co-ordination on issues such as economic and environmental concerns. As a result of changes in moratoria policies federal-state coordination concerns and nation-to-nation coordination concerns related to addressing such issues as economic and environmental concerns may emerge as issues for Congress.


Date of Report: March 23, 2010
Number of Pages: 22
Order Number: R41132
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Humane Treatment of Farm Animals: Overview and Issues

Animal protection activists in the United States have long sought legislation to modify or curtail

some practices considered by U.S. agriculture to be acceptable or even necessary to animal

health. Members of Congress over the years have offered various bills that would affect animal

care on the farm, during transport, or at slaughter; several proposals have been introduced in the

111th Congress. Members of the House and Senate Agriculture Committees generally have

expressed a preference for voluntary rather than regulatory approaches to humane care.

Meanwhile, animal activists have won initiatives in several states to impose some care

requirements on animal producers.

Date of Report: March 09, 2010
Number of Pages:8
Order Number: RS21978
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Everglades Restoration: The Federal Role inFunding

Charles V. Stern, Coordinator
Analyst in Natural Resources Policy

Pervaze A. Sheikh
Specialist in Natural Resources Policy

Nicole T. Carter
Specialist in Natural Resources Policy

In 2000, Congress approved a 30-year restoration plan, termed the Comprehensive Everglades Restoration Plan (CERP), for the Everglades ecosystem in southern Florida, and authorized an initial set of projects at a cost of $1.4 billion. Implementing the plan is estimated to cost $10.9 billion; the federal government is expected to pay half that, with an array of state, tribal, and local agencies paying the other half. In addition to the activities under CERP, other federal and state efforts also are contributing to Everglades restoration. 

As of FY2010, all of these efforts combined (CERP and non-CERP activities) represent an investment of more than $12.2 billion in state funds and $3.6 billion in federal funds since FY1993. The debate and resolution of issues surrounding the authorization and appropriations for Everglades restoration projects could have implications for large-scale restoration initiatives elsewhere. Consequently, Everglades funding receives attention not only from those interested in Everglades restoration, but also from stakeholders of other restoration initiatives such as those in coastal Louisiana, the Great Lakes, and Chesapeake Bay. This report provides information on federal appropriations for Everglades restoration, and discusses some issues related to the authorization and appropriations for restoration projects.


Date of Report: March 11, 2010
Number of Pages: 10
Order Number: RS22048
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Fishery, Aquaculture, and Marine Mammal Issues in the 111th 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.

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, the federal government 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 111th Congress may oversee implementation of the MSFCMA as well as address individual habitat and management concerns for U.S. commercial and sport fisheries to achieve a sustainable balance between resource use and protection. Current concerns include whether additional effort should be taken to eliminate overfishing, how fishery disaster assistance should be funded, and whether to more aggressively encourage fishing vessel capacity reduction and limited access privilege programs. The 111th Congress has enacted P.L. 111-5, including language to broaden the basis for determining import increases for trade adjustment assistance for fishing and aquaculture to include wild-caught fish and seafood in addition to farmraised fish and seafood. In addition, P.L. 111-11 authorized implementation of the San Joaquin River Restoration Settlement providing for the reintroduction of Chinook salmon; extended the authorizations for the Upper Colorado and San Juan River Basin endangered fish recovery programs through FY2023; directed the Secretary of Commerce to establish an ocean acidification program within NOAA, and to establish an interagency committee to develop an ocean acidification research and monitoring plan; and reauthorized (through FY2015) and amend the Fisheries Restoration and Irrigation Mitigation Act of 2000.

Aquaculture—the farming of fish, shellfish, and other aquatic animals and plants in a controlled environment—is expanding rapidly abroad, with more modest growth in the United States. In the United States, important species cultured include catfish, salmon, shellfish, and trout. The 111th Congress has enacted P.L. 111-5, including language (1) providing as much as $50 million in total assistance to aquaculture producers for losses associated with high feed input costs during the 2008 calendar year and (2) including National Fish Hatcheries as eligible for $165 million in resource management funding as well as $115 million in construction funding for the U.S. Fish and Wildlife Service.

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 restrictive permits are obtained. It also addresses specific situations of concern, such as dolphin mortality, primarily associated with the eastern tropical Pacific tuna fishery. The 111th Congress may consider bills to reauthorize and amend the MMPA 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. .


Date of Report: March 11, 2010
Number of Pages: 31
Order Number: R40172
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Calculation of Lifecycle Greenhouse Gas Emissions for the Renewable Fuel Standard (RFS)

Brent D. Yacobucci
Specialist in Energy and Environmental Policy

Kelsi Bracmort
Analyst in Agricultural Conservation and Natural Resources Policy

The Energy Independence and Security Act of 2007 (EISA; P.L. 110-140) significantly expanded the renewable fuel standard (RFS) established in the Energy Policy Act of 2005 (EPAct 2005; P.L. 109-58). The RFS requires the use of 9.0 billion gallons of renewable fuel in 2008, increasing to 36 billion gallons in 2022. Further, EISA requires an increasing amount of the mandate be met with "advanced biofuels"—biofuels produced from feedstocks other than corn starch and with 50% lower lifecycle greenhouse gas emissions than petroleum fuels. Within the advanced biofuel mandate, there are specific carve-outs for cellulosic biofuels and biomass-based diesel substitutes (e.g., biodiesel). 

To classify biofuels under the RFS, the Environmental Protection Agency (EPA) must calculate the lifecycle emissions of each fuel relative to gasoline or diesel fuel. Lifecycle emissions include emissions from all stages of fuel production and use ("well-to-wheels"), as well as both direct and indirect changes in land use from farming crops to produce biofuels. Debate is ongoing on how each factor in the biofuels lifecycle should be addressed, and the issues surrounding direct and indirect land use are particularly controversial. How EPA resolves those issues will affect the role each fuel plays in the RFS. 

EPA issued a Notice of Proposed Rulemaking on May 26, 2009, for the RFS with suggested methodology for the lifecycle emissions analysis. EPA issued a final rule on February 3, 2010. The final rule includes EPA's methodology for determining lifecycle emissions, as well as the agency's estimates for the emissions from various fuels. In its proposed rule, EPA found that many fuel pathways did not meet the threshold requirements in EISA. However, its methodology was criticized by biofuels supporters. In the final rule, EPA modified its methodology to reflect some of those comments. However, some biofuels opponents counter that the final rules went too far in the opposite direction. In most cases, estimated emissions decreased (i.e., emissions reductions increased), leading to more favorable treatment of biofuels in the final rule. 

Because of the ongoing debate on the lifecycle emissions from biofuels, including finalized regulations by the state of California for a state low carbon fuel standard (LCFS) in January 2009, there is growing congressional interest in the topic. Congressional action could take the form of oversight of EPA's rulemaking process, or could result in legislation to amend the EISA RFS provisions. Further, related legislative and regulatory efforts on climate change policy and/or a low-carbon fuel standard would likely lead to interactions between those policies and the lifecycle determinations under the RFS.


Date of Report: March 12, 2010
Number of Pages: 22
Order Number: R40460
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Earthquakes: Risk, Detection, Warning, andResearch

Peter Folger
Specialist in Energy and Natural Resources Policy

The 1994 Northridge (CA) earthquake caused as much as $26 billion (in 2005 dollars) in damage and was one of the costliest natural disasters to strike the United States. The Federal Emergency Management Agency has estimated that earthquakes cost the United States over $5 billion per year. A hypothetical scenario for a magnitude 7.8 earthquake in southern California estimated a possibility of 1,800 fatalities and over $200 billion in economic losses. The January 12, 2010, magnitude 7.0 earthquake that struck Haiti only 15 miles from Port-au-Prince, the capital city, has caused an estimated 230,000 fatalities and 300,000 injuries. On February 27, 2010, a magnitude 8.8 earthquake occurred offshore of Chile and has caused massive damage, although far fewer fatalities than the Haiti earthquake. The Cascadia Subduction Zone megathrust fault, which stretches from southern British Columbia to northern California, has the potential to generate a massive earthquake and tsunami, similar to the Chilean earthquake, that could threaten Oregon, Washington, and northern California. 

The United States faces the possibility of large economic losses from earthquake-damaged buildings and infrastructure. California alone accounts for most of the estimated annualized earthquake losses for the nation, and with Oregon and Washington the three states account for nearly $4.1 billion (77%) of the U.S. total estimated annualized loss. A single large earthquake, however, can cause far more damage than the average annual estimate. 

An ongoing issue for Congress is whether the federally supported programs aimed at reducing U.S. vulnerability to earthquakes are an adequate response to the earthquake hazard. Under the National Earthquake Hazards Reduction Program (NEHRP), four federal agencies have responsibility for long-term earthquake risk reduction: the U.S. Geological Survey (USGS), the National Science Foundation (NSF), the Federal Emergency Management Agency (FEMA), and the National Institute of Standards and Technology (NIST). They variously assess U.S. earthquake hazards, send notifications of seismic events, develop measures to reduce earthquake hazards, and conduct research to help reduce overall U.S. vulnerability to earthquakes. 

Congress reauthorized NEHRP in 2004 (P.L. 108-360) through FY2009. Appropriations for NEHRP from FY2005 to FY2009 did not meet authorized levels; the total funding enacted was $615.5 million, approximately 68% of the total amount of $902.4 million authorized by P.L. 108- 360. The American Recovery and Reinvestment Act (ARRA; P.L. 111-5) provided some additional funding for earthquake activities under NEHRP through FY2010. In the 111th Congress, H.R. 3820 would reauthorize NEHRP through FY2014, authorizing total appropriations of $806 million over five years for the program, with 88% of the funding designated for the USGS and NSF, and the remainder for FEMA and NIST. The total authorized amounts are about $100 million less than what was authorized by P.L. 108-360 over five years. If future appropriations match the funding levels authorized under H.R. 3820, however, these funds would exceed the total cumulative amounts actually appropriated between FY2005 and FY2009. 

What effect funding at the levels enacted through FY2009 under NEHRP has had on the U.S. capability to detect earthquakes and minimize losses after an earthquake occurs is not clear. It is also difficult to predict precisely how NEHRP reauthorized under H.R. 3820 would achieve a major goal of the bill: to reduce the loss of life and damage to communities and infrastructure through increasing the adoption of hazard mitigation measures. A perennial issue for Congress is whether activities under NEHRP can reduce the potential for catastrophic loss in the next giant earthquake to strike the United States. .


Date of Report: March 3, 2010
Number of Pages: 32
Order Number: RL33861
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The Pigford Case: USDA Settlement of a Discrimination Suit by Black Farmers

Tadlock Cowan
Analyst in Natural Resources and Rural Development

Jody Feder
Legislative Attorney

On April 14, 1999, Federal District Court Judge Paul L. Friedman approved a settlement agreement and consent decree resolving a class action discrimination suit (commonly known as the Pigford case) between the U.S. Department of Agriculture (USDA) and black farmers. The suit claimed that the agency had discriminated against black farmers on the basis of race and failed to investigate or properly respond to complaints from 1983 to 1997. The deadline for submitting a claim as a class member was September 12, 2000. Many voiced concern over the structure of the settlement agreement, the large number of applicants who filed late, and reported deficiencies in representation by class counsel. A provision in the 2008 farm bill (P.L. 110-246) permitted any claimant in the Pigford decision who had not previously obtained a determination on the merits of a Pigford claim to petition in civil court to obtain such a determination. A maximum of $100 million dollars was also authorized for new claims settlements. 

On February 18, 2010, Attorney General Holder and Secretary of Agriculture Vilsack announced a $1.25 billion settlement of these so-called Pigford II claimants. The Administration included $1.15 billion in its FY2010 supplemental budget request for settlement costs. If Congress does not appropriate the $1.15 billion by March 31, 2010, lawyers for the claimants can walk away from the settlement. Unlike the original Pigford decision, the Pigford II settlement does not include a suggested settlement amount, although it does provide for higher payments to claimants who go through a more rigorous review process. A moratorium on foreclosures of most claimants' farms will be in place until after claimants have gone through the claims process. Payments to successful claimants may begin in the middle of 2011. 

This report highlights some of the events that led up to the Pigford class action suit and outlines the structure of the original settlement agreement. It also discusses the number of claims reviewed, denied, and awarded, and some of the issues raised by various parties.


Date of Report: March 1, 2010
Number of Pages: 9
Order Number: RS20430
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International Species Conservation Funds

Pervaze A. Sheikh
Specialist in Natural Resources Policy

M. Lynne Corn
Specialist in Natural Resources Policy

International species conservation is addressed by several funds, including those under the Multinational Species Conservation Fund and the Neotropical Migratory Bird Conservation Fund. These funds are implemented by relatively small programs within the Fish and Wildlife Service, yet generate enormous constituent interest, chiefly concerning their funding levels. This report describes the funds briefly, and summarizes recent and proposed appropriations levels.


Date of Report: March 5, 2010
Number of Pages: 7
Order Number: RS21157
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Meeting the Renewable Fuel Standard (RFS) Mandate for Cellulosic Biofuels: Questions and Answers

Kelsi Bracmort
Analyst in Agricultural Conservation and Natural Resources Policy

The Renewable Fuel Standard (RFS) was expanded under the Energy Independence and Security Act of 2007 (EISA; P.L. 110-140) in an effort to reduce dependence on foreign oil, promote biofuel use, and stabilize transportation fuel prices, among other goals. Over a 15-year period, the RFS seeks to establish a market for biofuels in the transportation sector by requiring that increasing amounts of biofuels—36 billion gallons by 2022—be blended into transportation fuel. The mandate is to be accomplished with an assortment of advanced biofuels, including cellulosic biofuels—fuels produced from cellulosic materials including grasses, trees, and agricultural and municipal wastes. The cellulosic biofuel allotment in the mandate, as established by Congress in EISA, is 100 million gallons due in 2010, increasing to 16 billion gallons by 2022. However, on February 3, 2010, the U.S. Environmental Protection Agency (EPA) issued a final rule for implementation of the RFS that sets a new, lower cellulosic biofuel mandate of 6.5 million gallons for 2010. 

Recent analysis has suggested that the United States might not have sufficient cellulosic biofuel production capacity to meet the 2010 RFS mandate of 100 million gallons instituted by Congress in EISA. The cellulosic biofuel community may fare better at achieving the new mandate set by EPA if certain obstacles are overcome. No commercial-scale cellulosic biofuel plants are currently operating. Roadblocks include unknown levels of feedstock supply, expensive conversion technology that has not yet been applied commercially, and insufficient financial support from private investors and the federal government. 

Some financial support from the Departments of Energy and Agriculture is available to expedite cellulosic biofuel production. For example, the Biomass Crop Assistance Program (BCAP), created under the Food, Conservation, and Energy Act of 2008 (2008 farm bill; P.L. 110-246), is to support establishment and production of crops for conversion to bioenergy. Financial support available thus far via BCAP is for collection, harvest, storage, and transportation of eligible material. BCAP support for the establishment and production of eligible crops for the conversion to bioenergy is anticipated to begin in 2010. Also, the Department of Energy's Loan Guarantee Program, created under the Energy Policy Act of 2005 (EPAct05, P.L. 109-58), distributes loan guarantees to eligible commercial-scale renewable energy systems, including cellulosic biofuel plants, although criticisms have been raised that the program has been slow to get started. 

Many questions regarding cellulosic biofuels and the RFS may arise as Congress engages in energy legislation debates. Can and will the 2010 and future RFS mandates for cellulosic biofuels be met? What impact will significantly lowering the 2010 cellulosic ethanol mandate have on investment in celluosic ethanol production? What are the next steps Congress could take to expedite cellulosic biofuel production? Proposed legislation (H.R. 2454, S. 1462, H.R. 2283, and S. 943), if enacted, may influence cellulosic biofuel production by providing additional financial, infrastructure, and environmental support. This report, in a question and answer format, discusses some of the concerns facing the cellulosic biofuel community, including feedstock supply estimates, an expected time frame for the first commercial cellulosic biofuel projects, and potential legislative options to address cellulosic biofuel production uncertainty for the RFS.


Date of Report: March 11, 2010
Number of Pages: 17
Order Number: R41106
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Warranted but Precluded: What That Means Under the Endangered Species Act (ESA)

Kristina Alexander
Legislative Attorney

On March 5, 2010, the U.S. Fish and Wildlife Service (FWS) announced that the sage grouse (sometimes called the greater sage grouse) was facing risks to its population such that a listing under the Endangered Species Act (ESA) was warranted. However, in that same determination, FWS found that the sage grouse listing was precluded because listing other species was a priority. The agency made the same warranted but precluded determination regarding a distinct population segment of the sage grouse, the Mono Basin sage grouse (sometimes referred to as the Bi-State population). 

This report analyzes the process behind a warranted but precluded determination under the ESA. It also discusses what impact a warranted but precluded determination has on federal actions that may affect a species, with a particular analysis of impacts on the sage grouse. In the case of the sage grouse, whose habitat covers so much of the western United States, agency decisions, such as oil and gas leasing, will have to take into account this listing decision. Both the Bureau of Land Management and the Forest Service have existing policies addressing how land management planning must consider species for which this determination was made.


Date of Report: March 5, 2010
Number of Pages: 11
Order Number: R41100
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The Endangered Species Act (ESA) in the111th Congress: Conflicting Values and Difficult Choices

Eugene H. Buck
Specialist in Natural Resources Policy

M. Lynne Corn
Specialist in Natural Resources Policy

Pervaze A. Sheikh
Specialist in Natural Resources Policy

Robert Meltz
Legislative Attorney

Kristina Alexander
Legislative Attorney

The Endangered Species Act (ESA; P.L. 93-205, 16 U.S.C. §§ 1531-1543) has been one of the more contentious environmental laws. This may stem from its strict substantive provisions, which can affect the use of both federal and nonfederal lands and resources. 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. Once a species is listed, powerful legal tools are available to aid its recovery and protect its habitat. ESA may also be controversial because dwindling species are usually harbingers of broader ecosystem decline. The most common cause of species listing is habitat loss. ESA is considered a primary driver of large-scale ecosystem restoration issues. 

The 111th Congress has considered whether to revoke ESA regulations promulgated in the waning days of the Bush Administration that would alter when federal agency consultation is required. In addition, legislation related to global climate change includes provisions that would allocate funds to the U.S. 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, protection by and 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 was enacted. No legislative proposals were introduced in the 110th Congress to reauthorize the ESA. 

In the first session of the 111th Congress, P.L. 111-8 contained language authorizing the Secretary of the Interior to withdraw or reissue (1) revisions to the ESA Section 7 consultation regulations promulgated by the Bush Administration and (2) a December 2008 special rule that outlined protections afforded polar bears. In addition, P.L. 111-11 included provisions (1) authorizing the implementation of the San Joaquin River Restoration Settlement, providing for the reintroduction of Chinook salmon, and (2) amending P.L. 106-392 to extend the authorizations for the Upper Colorado and San Juan River Basin endangered fish recovery programs through FY2023. P.L. 111-88 appropriated about $281 million for U.S. Fish and Wildlife Service endangered species and related programs for FY2010. 

This report discusses oversight issues and legislation introduced in the 111th Congress to address ESA implementation and management of endangered and threatened species. .


Date of Report: March 5, 2010
Number of Pages: 28
Order Number: R40185
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Fishery, Aquaculture, and Marine Mammal Issues in the 111th 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. 

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, the federal government 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 111th Congress may oversee implementation of the MSFCMA as well as address individual habitat and management concerns for U.S. commercial and sport fisheries to achieve a sustainable balance between resource use and protection. Current concerns include whether additional effort should be taken to eliminate overfishing, how fishery disaster assistance should be funded, and whether to more aggressively encourage fishing vessel capacity reduction and limited access privilege programs. The 111th Congress has enacted P.L. 111-5, including language to broaden the basis for determining import increases for trade adjustment assistance for fishing and aquaculture to include wild-caught fish and seafood in addition to farmraised fish and seafood. In addition, P.L. 111-11 authorized implementation of the San Joaquin River Restoration Settlement providing for the reintroduction of Chinook salmon; extended the authorizations for the Upper Colorado and San Juan River Basin endangered fish recovery programs through FY2023; directed the Secretary of Commerce to establish an ocean acidification program within NOAA, and to establish an interagency committee to develop an ocean acidification research and monitoring plan; and reauthorized (through FY2015) and amend the Fisheries Restoration and Irrigation Mitigation Act of 2000. 

Aquaculture—the farming of fish, shellfish, and other aquatic animals and plants in a controlled environment—is expanding rapidly abroad, with more modest growth in the United States. In the United States, important species cultured include catfish, salmon, shellfish, and trout. The 111th Congress has enacted P.L. 111-5, including language (1) providing as much as $50 million in total assistance to aquaculture producers for losses associated with high feed input costs during the 2008 calendar year and (2) including National Fish Hatcheries as eligible for $165 million in resource management funding as well as $115 million in construction funding for the U.S. Fish and Wildlife Service. 

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 restrictive permits are obtained. It also addresses specific situations of concern, such as dolphin mortality, primarily associated with the eastern tropical Pacific tuna fishery. The 111th Congress may consider bills to reauthorize and amend the MMPA 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. .


Date of Report: March 5, 2010
Number of Pages: 31
Order Number: R40172
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Use of Federal Water Projects for Municipal and Industrial Water Supply: Current Legal and Policy Issues Related to the Water Supply Act of 1958 (WSA; 43 U.S.C. § 390b)

Cynthia Brougher, Coordinator
Legislative Attorney

Nicole T. Carter
Specialist in Natural Resources Policy

James E. Nichols
Law Clerk

Congress has authorized the U.S. Army Corps of Engineers (Corps) and the U.S. Bureau of Reclamation (Reclamation), the agencies with primary responsibility for federal water resources management, on a project-by-project basis to construct water projects for specified purposes. In the case of Corps dams and reservoirs, Congress has limited the use of such projects for municipal and industrial (M&I) water supply. Growing M&I demands have raised interest in— and concern about—changing current law and reservoir operations to give Corps facilities a greater role in M&I water storage. Reallocation of storage to M&I use from a currently authorized purpose would change the types of benefits produced by a facility and the stakeholders served. 

The Water Supply Act of 1958 (WSA) authorizes the Corps and Reclamation to include water storage for municipal and industrial use as project purposes for new and existing projects. The WSA prohibits water storage as a project purpose for existing projects if adding it would seriously affect existing purposes or involve major structural or operational changes. However, the WSA does not define the extent to which water storage must affect existing purposes or what constitutes major changes. This ambiguity has become a particular issue when severe drought raises the competition for water supply, and is an especially contentious issue in eastern riparian states where all users are affected by any drought. Because of such water shortages in some riparian basins with Corps projects, the Corps' reallocation of water at its discretion has been of particular interest. 

This issue is at the center of ongoing litigation related to the Corps' operation of Lake Lanier in the Apalachicola-Chattahoochee-Flint River Basin (ACF). The issue had not been resolved in litigation in the first half-century of the WSA. The issue was the subject of a 2008 decision by the U.S. Court of Appeals for the D.C. Circuit, Southeastern Federal Power Customers v. Geren, and a 2009 decision by the U.S. District Court for the Middle District of Florida, In re Tri-State Water Rights Litigation. Both cases addressed a tri-state water dispute involving Lake Lanier, a Corps water project in the ACF shared by Alabama, Florida, and Georgia. 

Using the Corps' reallocations of water for municipal and industrial use as an example, this report analyzes the reallocation issues under the WSA to provide a context for Congress as courts consider this issue for the first time. Specifically, it examines the Corps' authority under the WSA, including the issue of the scope of the limitation for modifications that would constitute major operational changes. The report details data regarding the Corps' reallocations under the WSA and provides examples of the Corps' use of its WSA authority. It also analyzes the various legal challenges to the inclusion of water storage as an authorized purpose for Lake Lanier and discusses results of the litigation and options for Congress. Although the WSA provides authority to Reclamation as well, the application of the WSA to Reclamation is beyond the scope of the report. 


Date of Report: March 4, 2010
Number of Pages: 18
Order Number: R41092
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Food Safety on the Farm: Federal Programs and Selected Proposals

Geoffrey S. Becker
Specialist in Agricultural Policy

Foodborne illness-causing bacteria on farms can enter the food supply unless preventive measures are in place to reduce them, either prior to or after harvest. Also of potential risk to the food supply are pesticide residues, animal drugs, and naturally occurring contaminants such as aflatoxin. 

Interest in on-farm practices was renewed after more than 1,300 persons in 43 states, the District of Columbia, and Canada were found to be infected with the same unusual strain of bacteria (Salmonella Saintpaul) in April-July 2008. Officials first suspected fresh tomatoes as the vehicle and later expanded their concerns to fresh jalapeño and serrano peppers. By late July 2008, genetic tests confirmed the pathogen on samples of a serrano pepper and irrigation water from a farm in Tamaulipas, Mexico. Agricultural operations in the United States have been implicated in several past outbreaks of foodborne illness. 

Food safety experts agree that an effective, comprehensive food safety system should include consideration of potential hazards at the farm level. However, opinions differ on the need, if any, for more stringent, government-enforced safety standards for farms, as exist for processors and others in the food chain. This question and others, such as the potential cost of new interventions to producers, taxpayers, and consumers, are at issue as Congress debates food safety legislation. 

The lead federal food safety agencies are the Food Safety and Inspection Service (FSIS) within the U.S. Department of Agriculture (USDA), which regulates major species of meat and poultry and some egg products, and the Food and Drug Administration (FDA) within the U.S. Department of Health and Human Services (HHS), which regulates virtually all other foods. Generally, these agencies' regulatory oversight of foods begins after the farm gate, at slaughter establishments and food handling and manufacturing facilities. However, various activities of these and other federal agencies involved in assuring the safety of the food supply can, and do, have an impact on how farms and ranches raise food commodities. 

In the 111th Congress, comprehensive bills are progressing that could affect farmers and ranchers. On June 10, 2009, a House Energy and Commerce Subcommittee marked up and approved H.R. 2749, which is based largely on provisions of an earlier version (H.R. 759) by the same sponsor. H.R. 2749 would require the establishment of new standards for the production of some fruits, vegetables, nuts, and fungi. Other provisions of H.R. 2749 that focus more broadly on food safety, such as requiring a new food tracing system, and expanding authority for access to records, also could impact on-farm practices. The full Energy and Commerce Committee further amended and approved H.R. 2749 on June 17, 2009, and the full House passed the measure— with additional changes made by the bill's sponsors to address agricultural interests' concerns— on July 30, 2009. 

The Senate Health, Education, Labor, and Pensions Committee marked up its food safety measure (S. 510) on November 18, 2009, reporting it on December 18, 2009. Provisions in this bill also would affect on-farm production, including but not limited to a section requiring produce safety standards. 


Date of Report: February 25, 2010
Number of Pages: 20
Order Number: RL34612
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Recreation on Federal Lands

Kori Calvert
Information Research Specialist

Carol Hardy Vincent
Specialist in Natural Resources Policy

Ross W. Gorte
Specialist in Natural Resources Policy

The growing and diverse nature of recreation on federal lands has increased the challenge of balancing different types of recreation with each other and with other land uses. Motorized recreation has been particularly controversial, with issues centering on access and environmental impacts. The 111th Congress, as well as the Administration, is addressing recreation on federal lands, including traditional recreational pursuits and newer forms of motorized recreation. This report covers several prominent issues. 

Motorized Recreation on NPS Land, in the National Forests, and on BLM Land. Offhighway vehicle (OHV) use on National Park Service (NPS) lands has fueled ongoing debate arising from the agency's dual mission to provide recreational opportunities while preserving and protecting parkland resources. Relatively few park units are open to public OHV use—12—while the extent of unauthorized OHV use is in dispute. Currently, 10 units are developing pilot education and deterrence programs to address unauthorized use, which could serve as models at other NPS sites. OHV use on Forest Service (FS) and Bureau of Land Management (BLM) lands has been controversial. Both agencies decide the extent of allowed OHV use through their planning processes. Under FS regulations governing OHVs, the FS is designating roads, trails, and areas open for OHV use and prohibiting OHV use outside the designated system. The BLM has been making similar designations and is addressing transportation issues through national strategies and other guidance. No general legislation pertaining to OHV use on NPS, BLM, or FS lands had been introduced as of February 23, 2010, but several measures pertain to recreation on particular lands administered by these agencies or to certain types of recreation. 

Aircraft Overflights. Grand Canyon National Park is at the center of a conflict over whether or how to limit air tours over national parks to reduce noise. NPS and the Federal Aviation Administration (FAA) continue to work to implement a 1987 law that sought to reduce noise at Grand Canyon, and a 2000 law that regulates overflights at other park units. For instance, the agencies are developing a draft environmental impact statement on options to restore natural quiet at Grand Canyon. They also have begun to develop air tour management plans for park units with commercial air tours. Provisions of legislation (H.R. 915 and S. 1451) would affect commercial air tours over park units by expediting and streamlining agency actions. 

Snowmobiles on NPS Land. Regulatory and judicial actions to allow or restrict snowmobile use have focused primarily on three Yellowstone area park units. Winter Use Plans developed by NPS to establish numerical limits on snowmobile and snowcoach entries have been the subject of repeated, and often conflicting, court challenges. On November 20, 2009, NPS issued a final rule limiting daily oversnow vehicle entries at Yellowstone to 318 snowmobiles and 78 snowcoaches for the 2009-2010 and 2010-2011 winter use seasons while the agency develops a new long-term management plan. 

Personal Watercraft (PWC) at NPS Sites. Since 2003, NPS has completed regulations to open designated PWC areas at 13 units. A lawsuit seeks to reinstate PWC bans at two of these units. One additional unit has proposed allowing PWC. .


Date of Report: February 25, 2010
Number of Pages: 26
Order Number: RL33525
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International Treaty on Plant Genetic Resources for Food and Agriculture

Melissa D. Ho
Analyst in Agricultural Policy

Plant genetic resources for food and agriculture (PGRFA) serve as the raw material used by plant breeders and farmers to create new crop varieties. As such, they are viewed by many as the foundation for modern agriculture and as essential for achieving global food security. The United Nations Food and Agriculture Organization estimates that more than three-quarters of the increased crop productivity of the past 30 years is the result of plant breeding, and that future global food security depends to a large extent on the continued improvement of food crops—for example, developing new varieties that are higher-yielding, resistant to pests and diseases, resistant to extreme weather events such as drought or flood, and/or regionally adapted to different environments and growing conditions. All countries of the world are interdependent when it comes to plant genetic resources for food and agriculture; each relies on others for the genetic basis of its major food crops and for its food security. Interdependence for major food crops—the measure of reliance on nonindigenous staple crop germplasm that comes from other parts of the world—is over 50% for most regions, and ranges from 67% to 84% for countries in central Africa and from 85% to 100% for countries in south Asia. The high degree of interdependence argues for free access by countries to a wide range of plant genetic resources from other regions, in order to ensure future crop improvement and continued gains in agricultural productivity globally. 

The International Treaty on Plant Genetic Resources for Food and Agriculture (the Treaty on PGRFA) provides a general framework for conservation and sustainable use of plant genetic resources. The treaty sets up a multilateral system of access and benefit sharing, where all members, in exercise of their sovereignty, provide free (or nearly free) access to each other's plant genetic resources for research, breeding, conservation, and training. The multilateral approach allows members access to germplasm to promote food security and improve crop productivity, lowers transaction costs, and redistributes back to the governing body financial benefits derived from the commercial exploitation of the genetic resources. 

Currently, 120 countries are parties to the treaty. The United States signed the treaty on November 1, 2002 (Treaty Doc. 110-19), and it was submitted by the Bush Administration to the Senate for advice and ratification on July 7, 2008. The Senate Foreign Relations Committee heard testimony in support of ratification on November 10, 2009, but to date no further action has been taken. Congress could assess several issues related to ratification of the Treaty on PGRFA, including the implications for the United States' position on the Convention for Biological Diversity; the implications for the United States' position on intellectual property rights; the expectations for future financial commitments under the treaty, especially for capacity-building in developing countries; and the potential implications, if any, for congressional proposals related to international agricultural research and development. .


Date of Report: March 1, 2010
Number of Pages: 28
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Renegotiation of the Standard Reinsurance Agreement (SRA) for Federal Crop Insurance

Dennis A. Shields
Specialist in Agricultural Policy

Under the federal crop insurance program, farmers can purchase crop insurance policies to manage financial risks associated with declines in crop yields and/or revenue. The program covers more than 100 crops and is administered by the U.S. Department of Agriculture's (USDA's) Risk Management Agency (RMA), which acts as both regulator and reinsurer. To encourage farmer participation and reduce the need for ad hoc disaster assistance, the federal government subsidizes the purchase of crop insurance policies, which are sold and serviced through 15 approved private insurance companies. Insurance company losses are reinsured by USDA, and their administrative and operating (A&O) costs are reimbursed by the government. 

A Standard Reinsurance Agreement (SRA) between USDA and the private companies spells out expense reimbursements and risk-sharing by the government, including the terms under which the government provides subsidies and reinsurance (i.e., insurance for insurance companies) on eligible crop insurance contracts sold or reinsured by insurance companies. As a result, the SRA plays a central role in determining program costs. The SRA does not affect policy premiums paid by farmers, which are based on RMA's estimates of risk and on subsides set in statute. 

RMA is in the process of renegotiating the SRA that has been in effect since 2004. Some have criticized it as being too generous for insurance companies following a significant increase in government costs in recent years. Although Congress does not directly approve any new agreement, Congress has been interested in its oversight capacity, particularly with respect to cost-effectiveness and effects on farmer participation, the industry's selling and servicing of crop insurance products to farmers, and baseline funding levels for the next farm bill. 

Since A&O reimbursements under the current SRA are based on a percentage of premiums, their dollar amount has risen sharply in recent years as premiums have risen to reflect higher crop prices. The A&O reimbursement increased from an average of $881 million during FY2004- FY2006 to $1.6 billion in 2009. Some observers argue that reimbursements should be pegged to something other than premiums, such as a flat fee per policy sold, to better reflect actual costs and to help reduce federal expenditures. The insurance industry contends that reimbursements are currently less than actual delivery expenses. 

Similarly, company underwriting gains (the amount by which a company's share of retained premiums exceeds its indemnities) have increased substantially in recent years, as weather has been generally favorable for growing crops. Some have argued that if the government share of gains is increased in exchange for a larger government share of losses, average taxpayer costs would decline. The insurance industry contends that a certain provision of the current SRA ("net book quota share") is a tax on underwriting income and crowds out private reinsurance. 

RMA released its first draft of the 2011 SRA on December 4, 2009, and a second draft in mid- February 2010. The most recent draft specifies the use of historical farm prices rather than current prices for calculating A&O reimbursements. At the request of the crop insurance companies, the second draft provides, among the proposed changes to underwriting provisions, more profit/loss sharing for "lower risk" policies. The draft also directs proceeds from an increase in the net book quota share to companies operating in "underserved states." The industry remains concerned that overall funding reductions implied by the draft SRA are excessive. Once negotiations are completed, a final SRA is expected to be put into effect in July 2010, for crops with policy closing dates after July 1, 2010 (e.g., 2011-crop corn and soybeans).


Date of Report: February 23, 2010
Number of Pages: 19
Order Number: R40966
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The Endangered Species Act (ESA) in the111th Congress: Conflicting Values and Difficult Choices

Eugene H. Buck
Specialist in Natural Resources Policy

M. Lynne Corn
Specialist in Natural Resources Policy

Pervaze A. Sheikh
Specialist in Natural Resources Policy

Robert Meltz
Legislative Attorney

Kristina Alexander
Legislative Attorney

The Endangered Species Act (ESA; P.L. 93-205, 16 U.S.C. §§ 1531-1543) has been one of the more contentious environmental laws. This may stem from its strict substantive provisions, which can affect the use of both federal and nonfederal lands and resources. 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. Once a species is listed, powerful legal tools are available to aid its recovery and protect its habitat. ESA may also be controversial because dwindling species are usually harbingers of broader ecosystem decline. The most common cause of species listing is habitat loss. ESA is considered a primary driver of large-scale ecosystem restoration issues. 

The 111th Congress has considered whether to revoke ESA regulations promulgated in the waning days of the Bush Administration that would alter when federal agency consultation is required. In addition, legislation related to global climate change includes provisions that would allocate funds to the U.S. 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, protection by and 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 was enacted. No legislative proposals were introduced in the 110th Congress to reauthorize the ESA. 

In the first session of the 111th Congress, P.L. 111-8 contained language authorizing the Secretary of the Interior to withdraw or reissue (1) revisions to the ESA Section 7 consultation regulations promulgated by the Bush Administration and (2) a December 2008 special rule that outlined protections afforded polar bears. In addition, P.L. 111-11 included provisions (1) authorizing the implementation of the San Joaquin River Restoration Settlement, providing for the reintroduction of Chinook salmon, and (2) amending P.L. 106-392 to extend the authorizations for the Upper Colorado and San Juan River Basin endangered fish recovery programs through FY2023. P.L. 111-88 appropriated about $281 million for U.S. Fish and Wildlife Service endangered species and related programs for FY2010. 

This report discusses oversight issues and legislation introduced in the 111th Congress to address ESA implementation and management of endangered and threatened species.


Date of Report: February 25, 2010
Number of Pages: 28
Order Number: R40185
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Fishery, Aquaculture, and Marine Mammal Issues in the 111th 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. 

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, the federal government 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 111th Congress may oversee implementation of the MSFCMA as well as address individual habitat and management concerns for U.S. commercial and sport fisheries to achieve a sustainable balance between resource use and protection. Current concerns include whether additional effort should be taken to eliminate overfishing, how fishery disaster assistance should be funded, and whether to more aggressively encourage fishing vessel capacity reduction and limited access privilege programs. The 111th Congress has enacted P.L. 111-5, including language to broaden the basis for determining import increases for trade adjustment assistance for fishing and aquaculture to include wild-caught fish and seafood in addition to farmraised fish and seafood. In addition, P.L. 111-11 authorized implementation of the San Joaquin River Restoration Settlement providing for the reintroduction of Chinook salmon; extended the authorizations for the Upper Colorado and San Juan River Basin endangered fish recovery programs through FY2023; directed the Secretary of Commerce to establish an ocean acidification program within NOAA, and to establish an interagency committee to develop an ocean acidification research and monitoring plan; and reauthorized (through FY2015) and amend the Fisheries Restoration and Irrigation Mitigation Act of 2000. 

Aquaculture—the farming of fish, shellfish, and other aquatic animals and plants in a controlled environment—is expanding rapidly abroad, with more modest growth in the United States. In the United States, important species cultured include catfish, salmon, shellfish, and trout. The 111th Congress has enacted P.L. 111-5, including language (1) providing as much as $50 million in total assistance to aquaculture producers for losses associated with high feed input costs during the 2008 calendar year and (2) including National Fish Hatcheries as eligible for $165 million in resource management funding as well as $115 million in construction funding for the U.S. Fish and Wildlife Service. 

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 restrictive permits are obtained. It also addresses specific situations of concern, such as dolphin mortality, primarily associated with the eastern tropical Pacific tuna fishery. The 111th Congress may consider bills to reauthorize and amend the MMPA 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. .


Date of Report: February 25, 2010
Number of Pages: 30
Order Number: R40172
Price: $29.95

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Potential Implications of a Carbon Offset Program to Farmers and Landowners

Renée Johnson
Specialist in Agricultural Policy

Jonathan L. Ramseur
Specialist in Environmental Policy

Ross W. Gorte
Specialist in Natural Resources Policy

Megan Stubbs
Analyst in Agricultural Conservation and Natural Resources Policy

Numerous studies have attempted to estimate the economic effects of potential climate legislation currently being considered by Congress. These studies have examined both the economy-wide effects, as well as the effects to specific sectors. Two principal reports on the economic effects to the U.S. agriculture and forestry sectors were conducted by the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Agriculture (USDA). As described by USDA, these studies generally concluded that the overall economic costs to the agricultural community of the proposed legislation would be modest. Both studies further suggested that farm revenues from carbon offsets could result in net economic gains for the U.S. agricultural sectors. Concerns have been raised regarding the results of the EPA and USDA analyses, as well as the potential effects of a carbon offset market established by a cap-and-trade system. Many in the U.S. farming community have expressed concern that these analyses estimate that 60 to 65 million acres of U.S. agricultural land could be converted to woodlands by 2050. This conversion would be the result of farmers and landowners choosing to participate in the emerging carbon markets through additional tree-planting, in response to expected high carbon prices. Some believe this could take land out of crop production, removing farmers from the business of food production, and raising food prices to consumers. In addition, some in the farming community have expressed concern that only certain landowners and agricultural producers might benefit in the carbon offset market. Some worry that only larger landowners and farmers might benefit from a carbon offset program, which could result in further industry consolidation in the farming sectors, exacerbating difficult business conditions for smaller, traditional farmers. Others worry that only certain crop producers will benefit, resulting in inequities across all crop producers. 

Given the general uncertainty about the possible outcomes of a likely regulatory process, following the still uncertain passage of climate legislation in Congress, it is not possible to definitively predict or provide a quantitative assessment of the potential implications or participation rates within a future carbon offset program. Regarding available economic modeling projections of land-use changes, many variables and factors complicate the analyses and projections of cropland conversion rates should be regarded with caution. Among the types of factors are: assumptions in the models of high and rising carbon prices that substantially influence the modeling results; missing farm-level costs, such as transaction costs associated with the future regulatory regime and possible foregone revenue from farm support programs; regional and biological variability that might not be precisely reflected in the model; possible physical capacity constraints and limitations to support substantial afforestation efforts; and possible legal and contractual constraints that might affect participation in the carbon market, given differences in the U.S. crop sectors between farmland ownership and leasing in the United States. 

The available economic models are even more limited in their ability to predict land-use changes or other potential changes under a carbon offset market, differentiating among producers and production areas. Anecdotally, the evidence about whether or not some operations and production regions might benefit more than others is mixed. Some evidence suggests that larger landowners and farming operations may have greater opportunities to participate in carbon markets, because of their economies of scale and their likely lower transactions costs compared to smaller landowners and farmers. Alternatively, smaller-sized operations might have greater opportunities to participate in carbon offset projects, because they are more likely to own their land and generally tend to be more operationally diverse, and the expected continued role of designated middlemen in generating and marketing carbon offsets. .


Date of Report: February 26, 2010
Number of Pages: 38
Order Number: R41086
Price: $29.95

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Animal Identification and Traceability: Overview and Issues

Randy Schnepf
Specialist in Agricultural Policy

On February 5, 2010, Secretary of Agriculture Vilsack announced that USDA was revising its approach to achieving a national capability for animal disease traceability. The previous plan, called the National Animal Identification System (NAIS), first proposed in 2002, was being abandoned. In its place USDA proposes a new approach that will allow individual states (and tribal nations) to chose their own degree of within-state animal identification (ID) and traceability for livestock populations. Under this revised focus, states may chose to have no mandatory animal ID and traceability capability, or to rely on existing ID systems already in place to fight brucellosis, tuberculosis, and other contagious animal diseases, or to develop their own version of a more detailed birth-to-market ID system as originally proposed under NAIS. The flexibility is intended to allow each state to respond to its own producer needs and interests. 

However, under the proposed revision USDA will require that all animals moving in interstate commerce have a form of ID that allows traceability back to their originating states. This may involve something as simple as a small ear-tag or as elaborate as an embedded radio frequency ID tag. Each state will determine the device or method adopted for its livestock. The Secretary of Agriculture derives the authority to regulate interstate movement of farm-raised livestock from Section 10406 of the Animal Health Protection Act (P.L. 107-171, Subtitle E; 7 U.S.C. 8305). 

The within-state programs are intended to be implemented by the states and tribal nations, not the federal government. As such, any data collection and storage would be done by state, not federal, authorities. However, the larger program governing traceability of interstate animal movements and coordination between different state "ID and traceability programs" will be implemented through federal regulations and the federal rule-making process. Because of the rule-making process, USDA suggests, it may take at least two years before any type of formal plan is in place. 

Since 2004, USDA has spent $142 million trying to get NAIS up and running. Since 2008, key committee leaders in Congress have expressed frustration with the slow pace of NAIS implementation and, as a result, have reduced annual funding appropriations for the program. 

USDA's decision to revise NAIS was made after a series of 15 listening sessions across the country in 2009, and after receiving thousands of comments concerning NAIS. While the poultry and pork industries have endorsed a mandatory national animal ID program in general, certain portions of the U.S. cattle industry have shown strong resistance to what they perceive as a costly government intrusion in their private affairs. Participation in the initial phase of the NAIS, premises registration, reflected this same degree of interest, as very high percentages of eligible premises were registered for most major animal species—poultry (95%), sheep (95%), swine (80%), goats (60%), and horses (50%)—with the exception of cattle (18%). USDA has stated that such a low participation rate for cattle renders NAIS ineffective as a tool for controlling animal disease, and that a much higher participation rate is necessary to respond effectively to an animal disease outbreak. Under the new proposal, USDA anticipates much higher participation rates. 

Lawmakers in the 111th Congress continue to monitor USDA's work on animal ID and traceability, and could propose legislation aimed at shaping its scope, design, and pace of implementation, as well as possible federal financial support of state-level programs.


Date of Report: February 19, 2010
Number of Pages: 49
Order Number: R40832
Price: $29.95

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Asian Carp and the Great Lakes Region

Eugene H. Buck
Specialist in Natural Resources Policy

Harold F. Upton
Analyst in Natural Resources Policy

Charles V. Stern
Analyst in Natural Resources Policy

Four species of non-indigenous Asian carp are invading U.S. waterways, resulting in a variety of concerns and problems. Two species—bighead and silver carp—are of particular concern, based on the perceived degree of potential danger. Current controversy relates to what measures might be necessary and sufficient to prevent movement of Asian carp from the Mississippi River drainage into the Great Lakes through the Chicago Area Waterway System. Bills have been introduced in the 111th Congress to improve control of these species.

According to the Great Lakes Fishery Commission, Asian carp are a significant threat to commercial and recreational fisheries of the Great Lakes. Asian carp populations could expand rapidly and change the composition of Great Lakes ecosystems. Native species could be harmed because Asian carp are likely to compete with them for food and modify their habitat. It has been widely reported that Great Lakes fisheries generate economic activity of approximately $7 billion annually. Although Asian carp introduction is likely to modify Great Lakes ecosystems and cause harm to fisheries, studies forecasting the extent of potential harm are not available. Therefore, it is not possible to provide estimates of potential changes in the regional economy or economic value (social welfare) by lake, species, or fishery.

The locks and waterways of the Chicago Area Waterway System (CAWS) have been a focal point for those debating how to prevent Asian carp encroachment on the Great Lakes. The CAWS is the only navigable link between the Great Lakes and the Mississippi River, and many note the potential of these waterways to facilitate invasive species transfers from one basin to the other. The U.S. Army Corps of Engineers has constructed and is currently operating electrical barriers to prevent fish passage. However, in light of recent tests indicating the potential presence of Asian carp in the Great Lakes, increased federal funding to prevent fish encroachment has been announced by the Obama Administration, and calls to permanently separate the two basins have grown. The potential closure of existing navigation structures in the CAWS and the permanent separation of the basins remains the most contentious issue related to Asian carp control, and a long-term solution has yet to be decided.

On December 21, 2009, the State of Michigan filed suit against the State of Illinois, the U.S. Army Corps of Engineers, and the Metropolitan Water Reclamation District of Greater Chicago. Michigan has asked the U.S. Supreme Court to order closure of shipping locks near Chicago to prevent Asian carp from invading the Great Lakes. On January 19, 2010, the Supreme Court refused to order emergency measures sought by the State of Michigan to stop the migration of invasive Asian carp toward Lake Michigan from rivers and a sanitary canal in Illinois. Without comment, the Court refused to issue a preliminary injunction that would have closed waterway locks and required other temporary measures in reaction to the discovery of Asian carp upstream in Illinois rivers.

In the 111th Congress, Section 126 in Title I of P.L. 111-85 directed the U.S. Army Corps of Engineers to implement additional measures to prevent aquatic invasive species from bypassing the Chicago Sanitary and Ship Canal Dispersal Barrier Project and dispersing into the Great Lakes. Other bills have been introduced to list Asian carp species as injurious under the Lacey Act (H.R. 48, H.R. 3173, S. 237, S. 1421), and to direct various federal agencies to take specific actions to increase control over and restrict the spread of Asian carp (H.R. 51, H.R. 4472, S. 237, S. 2946). .


Date of Report: February 26, 2010
Number of Pages: 20
Order Number: R41082
Price: $29.95

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The Pigford Case: USDA Settlement of a Discrimination Suit by Black Farmers

Tadlock Cowan
Analyst in Natural Resources and Rural Development

Jody Feder
Legislative Attorney

On April 14, 1999, Federal District Court Judge Paul L. Friedman approved a settlement agreement and consent decree resolving a class action discrimination suit (commonly known as the Pigford case) between the U.S. Department of Agriculture (USDA) and black farmers. The suit claimed that the agency had discriminated against black farmers on the basis of race and failed to investigate or properly respond to complaints from 1983-1997. The deadline for submitting a claim as a class member was September 12, 2000. Many voiced concern over the structure of the settlement agreement, the large number of applicants who filed late, and reported deficiencies in representation by class counsel. A provision in the 2008 farm bill (P.L. 110-246) permits any claimant in the Pigford decision who has not previously obtained a determination on the merits of a Pigford claim to petition in civil court to obtain such a determination. A maximum of $100 million dollars was also authorized for new claims settlements. The Administration also requested an additional $1.15 billion for FY2010. No funding was appropriated. This report highlights some of the events that led up to the Pigford class action suit and outlines the structure of the settlement agreement. It also discusses the number of claims reviewed, denied, and awarded, and some of the issues raised by various parties. .


Date of Report: February 16, 2010
Number of Pages: 9
Order Number: RS20430
Price: $29.95

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