The Endangered Species Act (ESA) in the 113th Congress: New and Recurring Issues

Eugene H. Buck
Specialist in Natural Resources Policy

M. Lynne Corn
Specialist in Natural Resources Policy

Kristina Alexander
Legislative Attorney

Pervaze A. Sheikh
Specialist in Natural Resources Policy

Robert Meltz
Legislative Attorney

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

Previous Congresses have conducted oversight hearings on the implementation of various federal programs and laws that address threatened and endangered species. This has ranged from addressing listing and delisting decisions under ESA to justifying funding levels for international conservation programs. The 113th Congress may 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 113th Congress, resourcespecific 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).

Major issues for the 113th Congress likely include how to allocate funds to activities and programs seeking 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.

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, 111th, or 112th Congresses to reauthorize ESA.

This report discusses oversight issues and legislation in the 113th Congress that address ESA implementation and management of endangered and threatened species.


Date of Report: February 1, 2013
Number of Pages: 20
Order Number: R42945
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Army Corps of Engineers Water Resource Projects: Authorization and Appropriations

Nicole T. Carter
Specialist in Natural Resources Policy


Charles V. Stern
Specialist in Natural Resources Policy

The U.S. Army Corps of Engineers undertakes activities to maintain navigable channels, reduce flood and storm damage, and restore aquatic ecosystems. Congress directs the Corps through authorizations, appropriations, and oversight of its studies, construction projects, and other activities. Historically, the agency’s authorizations and appropriations have been largely projectbased, with the projects being in specific locations. Legislative proposals and action related to the Corps in recent years have been shaped by congressional earmark moratoriums. Hurricane Sandy and the ongoing drought have brought attention to Corps actions, authorities, and funding in recent months. This report summarizes congressional authorization and appropriations processes for the Corps and explains the standard Corps project development process. It also discusses agency activities under general authorities. 

Authorization of Water Resources Activities. Congress generally authorizes Corps activities and provides policy direction in Water Resources Development Acts (WRDAs). Beginning in 1986, a biennial WRDA consideration was loosely followed; enactment has been less regular. The most recent WRDA was enacted in 2007 (P.L. 110-114). Pressure to authorize new projects and modify existing projects promotes fairly regular WRDA consideration. WRDAs historically have been omnibus bills including many provisions for site-specific activities. No WRDA was introduced during the 112th Congress. In late 2012, the Senate Environment and Public Works Committee circulated a draft WRDA bill that would have authorized Corps activities and modifications of existing authorizations that meet certain criteria; while individual projects were not identified, some regional activities would be authorized. 

Agency Appropriations. Federal funding for most Corps civil works activities is provided in annual Energy and Water Development appropriations acts or supplemental appropriations acts. At times these acts also have included Corps authorizations. In part because of competition for funds and because Corps authorizations outpace appropriations, many authorized activities have not received appropriations. There is a backlog of more than 1,000 authorized studies and construction projects. In recent years, few new studies and new construction activities have been in either the President’s budget request or enacted appropriations. 

Standard Project Development. The standard process for a Corps project requires two separate congressional authorizations—one for investigation and one for construction—as well as appropriations. The investigation phase starts with Congress authorizing a study; if it is funded, the Corps conducts an initial reconnaissance study followed by a more detailed feasibility study. Congressional authorization for construction is based on the feasibility study. For most activities, Congress requires a nonfederal sponsor to share some portion of study and construction costs. These cost-sharing requirements vary by the type of project. For many project types (e.g., levees), nonfederal sponsors are responsible for operation and maintenance once construction is complete. 

Other Corps Activities and Authorities. Although the project development process just described is standard, there are exceptions. Congress has granted the Corps some general authorities to undertake some studies, small projects, technical assistance, and emergency actions such as flood-fighting and repair of damaged levees. Additionally, the Corps conducts emergency response actions directed by the Federal Emergency Management Agency.


Date of Report: January 23, 2013
Number of Pages: 22
Order Number: R41243
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Army Corps Supplemental Appropriations: Recent History, Trends, and Policy Issues

Charles V. Stern
Specialist in Natural Resources Policy

Nicole T. Carter
Specialist in Natural Resources Policy

Under its civil works program, the U.S. Army Corps of Engineers plans, builds, operates, and maintains a wide range of water resources facilities. The Corps also plays a prominent role in responding to domestic natural disasters, in particular riverine and coastal flooding events. The Corps can assist in flood fighting at the discretion of its Chief of Engineers in order to protect life and property, principally when state resources are overwhelmed. The Corps is also authorized to protect and repair its own facilities in the event of flooding, and to operate a program, the Rehabilitation and Inspection Program (RIP), that funds the repair of participating nonfederal flood control works (e.g., levees, dams, dunes) damaged by flooding events. The Corps also undertakes a variety of other activities at the request of FEMA under the National Response Framework, which are outside the scope of this report.

In recent years several natural disasters have required Corps response and repair activities with costs running into the billions. Congress provided most of these funds through supplemental appropriations. Over the 25-year period from 1987-2012, Congress appropriated $26.9 billion in supplemental funding to the Corps. Of this funding, $25.5 billion came through supplemental appropriations acts passed between 2003 and 2012. This funding was approximately half of the amount provided to the Corps for regular appropriations over this same period ($50 billion).

Of the $26.9 billion, $22.2 billion (83%) was for responding to flooding and other natural disasters, with the majority of this funding related to Hurricane Katrina and the 2005 storm season ($16 billion). In addition to the disaster funding, Congress provided the Corps with nondisaster related supplemental funds, including $4.6 billion under the American Recovery and Reinvestment Act (P.L. 111-5) and $39 million for facility security and other expenditures.

Corps natural disaster supplemental appropriations have typically been for activities funded by two Corps accounts: Flood Control and Coastal Emergencies (FCCE; i.e., flood fighting, repairs to damaged nonfederal flood control projects) and Operations and Maintenance (O&M; i.e., repairs to Corps projects). Nonfederal cost-sharing for FCCE and O&M typically has not been required with some exceptions. Congress provided supplemental appropriations related to Hurricane Katrina beyond the FCCE and O&M accounts in the form of $5 billion for improvements through the Construction Account, primarily for additional flood protection in Louisiana. Most of this $5 billion was subject to typical Corps cost-sharing requirements of either 65/35 federal/nonfederal, or else cost sharing consistent with the original project. Similar supplemental construction funding for flood protection improvements was not provided after other storms over this period. That is, Hurricane Katrina supplemental construction funding represented the exception rather than the norm.

When faced with natural disaster costs and proposed supplemental expenditures, Congress may consider whether to provide these funds to the Corps and, if so, how much funding to include and for which Corps accounts and activities. In providing funding, Congress also may consider associated issues such as whether to maintain standard nonfederal cost-sharing requirements, and whether to include reporting and transparency requirements for this funding. While many advocate for supplemental funds in response to disasters, others note that the Corps has a backlog of more than $10 billion of flood infrastructure construction projects, and that the annual appropriations process is the appropriate forum for identifying investment priorities.


Date of Report: January 17, 2013
Number of Pages: 16
Order Number: R42841
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Motorized Recreation on Bureau of Land Management and Forest Service Lands

Carol Hardy Vincent
Specialist in Natural Resources Policy

Katie Hoover
Analyst 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 on lands managed by the Bureau of Land Management (BLM) and the Forest Service (FS) has been controversial, with issues centering on access and environmental impacts. Congress, as well as the Administration, has addressed motorized recreation on these federal lands.

The use of off-highway vehicles (OHVs) on FS and BLM land is governed by a number of authorities, including law, executive orders, agency regulations and policies, land management plans, and area-specific decisions. Both agencies decide the extent of allowed OHV use in particular areas through their planning processes. Under BLM regulations, the agency has been designating public lands as open, limited, or closed to OHV use. Similarly, 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 designations for some BLM and FS lands have been contentious.

BLM also has been addressing motorized recreation as part of a broader effort to manage all modes of travel and public access, including through the issuance of a 2011 manual and a 2012 handbook on travel and transportation management. The goal of BLM’s Comprehensive Travel and Transportation Management program is to provide varied transportation routes for access to BLM lands and provide areas for a variety of motorized and non-motorized forms of recreation, while protecting sensitive areas. Travel and transportation management plans are developed for particular areas. Also, in response to recommendations of the Government Accountability Office regarding OHV use on federal lands, BLM has taken actions in areas including planning, law enforcement, and communication with the public.

The FS continues to develop motor vehicle use maps showing where motor vehicle use is allowed, based on its 2005 travel management regulations. These regulations continue to be under debate, with some asserting that they do not sufficiently protect national forest lands from damage resulting from OHVs, and others contending that motorized access is too restricted. Similarly, some of the agency’s travel management plans have been challenged for either being too restrictive or not restrictive enough.

One bill with provisions on motorized recreation on FS lands (H.R. 145) has been introduced in the 113th Congress to date. In the 112th Congress, no general legislation on OHV activities on BLM and FS lands was introduced. However, a variety of legislative measures sought to regulate OHV use on particular lands administered by the BLM, the FS, or both agencies. For instance, some measures relating to BLM lands sought to establish recreation areas in general, or OHV areas in particular. Other bills provided for conveyance of BLM land for recreation purposes, including motorized recreation. Measures pertaining to FS lands addressed motorized recreation in areas with special designations, including wilderness. Other FS bills sought to designate other types of areas, such as special management areas and recreation management areas, and govern the use of motorized vehicles in those areas. Other bills contained varied provisions relating to motorized recreation in a particular national forest.


Date of Report: January 16, 2013
Number of Pages: 19
Order Number: R42920
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