19–006 

112TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 112–682 

FARMER’S PRIVACY ACT OF 2012 

SEPTEMBER 20, 2012.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Mr. MICA, from the Committee on Transportation and 

Infrastructure, submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany H.R. 5961] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Transportation and Infrastructure, to whom 

was referred the bill (H.R. 5961) to provide reasonable limits, control, and oversight over the Environmental Protection Agency’s use 

of aerial surveillance of America’s farmers, having considered the 

same, report favorably thereon with an amendment and recommend that the bill as amended do pass. 

CONTENTS 

Page 

Purpose of the Legislation ...................................................................................... 3 

Background and Need for Legislation .................................................................... 3 

Hearings ................................................................................................................... 4 

Legislative History and Consideration .................................................................. 4 

Committee Votes ...................................................................................................... 5 

Committee Oversight Findings ............................................................................... 5 

New Budget Authority and Tax Expenditures ...................................................... 5 

Congressional Budget Office Cost Estimate .......................................................... 5 

Performance Goals and Objectives ......................................................................... 6 

Advisory of Earmarks .............................................................................................. 6 

Federal Mandate Statement ................................................................................... 7 

Preemption Clarification ......................................................................................... 7 

Advisory Committee Statement .............................................................................. 7 

Applicability to the Legislative Branch ................................................................. 7 

Section-by-Section Analysis of Legislation ............................................................ 7 

Changes in Existing Law Made by the Bill, as Reported ..................................... 10 

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The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be referred to as the ‘‘Farmer’s Privacy Act of 2012’’. 

SEC. 2. LIMITATION ON USE OF AERIAL SURVEILLANCE. 

(a) AERIAL SURVEILLANCE RESTRICTED.—Subject to subsection (b), in exercising 

any authority under the Federal Water Pollution Control Act (33 U.S.C. 1251 et 

seq.), the Administrator may not conduct aerial surveillance of agricultural land. 

(b) EXCEPTIONS.—The Administrator may conduct aerial surveillance of agricultural land under the Federal Water Pollution Control Act if the Administrator— 

(1) has obtained the voluntary written consent of the owner or operator of the 

land to be surveilled in accordance with section 3; or 

(2) has obtained a certification of reasonable suspicion in accordance with section 4. 

SEC. 3. VOLUNTARY WRITTEN CONSENT. 

(a) CONSENT REQUIRED.—In order to conduct aerial surveillance under section 

2(b)(1), the Administrator shall obtain from the owner or operator of the land to be 

surveilled written consent to such surveillance. 

(b) CONTENTS.—The Administrator shall ensure that any written consent required 

under subsection (a)— 

(1) specifies the period during which the consent is effective, which may not 

exceed one year; 

(2) contains a specific description of the geographical area to be surveilled; 

and 

(3) if requested by the owner or operator of the land to be surveilled, contains 

limitations on the days and times during which the surveillance may be conducted. 

(c) ASSURANCE OF VOLUNTARY CONSENT.—The Administrator shall ensure that 

any written consent required under subsection (a) is granted voluntarily by the 

owner or operator of the land to be surveilled, and the Administrator may not 

threaten additional, more detailed, or more thorough inspections, or otherwise coerce or entice such owner or operator, in order to obtain such consent. 

SEC. 4. CERTIFICATION OF REASONABLE SUSPICION. 

(a) IN GENERAL.—In order to conduct aerial surveillance under section 2(b)(2), the 

Administrator shall obtain a certification of reasonable suspicion from the United 

States District Court for the District of Columbia in accordance with this section. 

(b) CERTIFICATION REQUIREMENTS.—The court may issue to the Administrator a 

certification of reasonable suspicion if— 

(1) the Administrator submits to the court an affidavit setting forth specific 

and articulable facts that would indicate to a reasonable person that a violation 

of the Federal Water Pollution Control Act exists in the area to be surveilled; 

and 

(2) the court finds that the Administrator has shown reasonable suspicion 

that an owner or operator of agricultural land in the area to be surveilled has 

violated the Federal Water Pollution Control Act. 

SEC. 5. DISCLOSURE OF INFORMATION. 

(a) IN GENERAL.—Except as provided in subsection (c), or for the purposes of an 

investigation or prosecution by the Administrator as described in section 6, the Administrator may not disclose information collected through aerial surveillance conducted under section 2(b). 

(b) APPLICABILITY OF FOIA.—Section 552 of title 5, United States Code, shall not 

apply to any information collected through aerial surveillance conducted under section 2(b) of this Act. 

(c) RIGHT TO PETITION.—The owner or operator of land surveilled under this Act 

has the right to petition for copies of the information collected through such surveillance. 

SEC. 6. DESTRUCTION OF INFORMATION. 

The Administrator shall destroy information collected through aerial surveillance 

conducted under section 2(b) not later than 30 days after collection, unless the information is pertinent to an active investigation or prosecution by the Administrator. 

SEC. 7. RULE OF CONSTRUCTION. 

Nothing in this Act shall be interpreted as expanding the power of the Administrator to inspect, monitor, or conduct surveillance of agricultural lands pursuant to 

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the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) or any other Federal law. 

SEC. 8. DEFINITIONS. 

In this Act: 

(1) AERIAL SURVEILLANCE.—The term ‘‘aerial surveillance’’ means any surveillance from the air, including— 

(A) surveillance conducted from manned or unmanned aircraft; or 

(B) the use of aerial or satellite images, regardless of whether the images 

are publicly available. 

(2) ADMINISTRATOR.—The term ‘‘Administrator’’ means the Administrator of 

the Environmental Protection Agency, or in the case of an action taken pursuant to a permit program approved under section 402 of the Federal Water Pollution Control Act (33 U.S.C. 1342), the head of the State agency administering 

the program. 

(3) AGRICULTURAL LAND.—The term ‘‘agricultural land’’ means land used primarily for agricultural production, including cropland, grassland, prairie land, 

improved pastureland, rangeland, cropped woodland, marshes, reclaimed land, 

fish or other aquatic species habitat, and land used for agro-forestry or the production of livestock. 

(4) COURT.—The term ‘‘court’’ means the United States District Court for the 

District of Columbia. 

PURPOSE OF THE LEGISLATION

The purpose of H.R. 5961 is to provide reasonable limits, control, 

and oversight over the Environmental Protection Agency’s use of 

aerial surveillance of agricultural land. 

BACKGROUND AND NEED FOR LEGISLATION

In 1972, Congress passed the Federal Water Pollution Control 

Act Amendments of 1972 (commonly known as the Clean Water 

Act or the CWA; 33 USC § 1251 et seq.). The objective of the CWA 

is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. The primary mechanism for achieving this objective is the CWA’s prohibition on the discharge into a 

jurisdictional waterbody of a pollutant without a National Pollutant Discharge Elimination System (NPDES) permit. (See CWA§§

301, 402.) NPDES permits are a basic regulatory tool of the CWA. 

Under the CWA, 46 states have been authorized to implement 

NPDES permits and enforce permits. The Environmental Protection Agency (EPA) manages the Clean Water Act program in the 

remaining states and territories. 

EPA has the basic responsibility for administering and enforcing 

most of the CWA, including the NPDES permit program. The EPA 

or an authorized state may conduct compliance inspections of facilities, issue compliance orders, or file civil suits against those who 

violate the terms of a permit or other CWA requirements. Facility 

inspections typically have involved the use of on-the-ground personal visits by enforcement personnel, but in recent years, EPA has 

increasingly used aircraft to conduct aerial over-flights to determine activities at targeted facilities and facilities’ compliance with 

the CWA. The EPA also sometimes reviews aerial photographs and 

geographic and mapping information that are available on the 

Internet or from other sources. 

In the past couple of years, the EPA has targeted the agriculture 

industry, and especially concentrated animal feeding operations 

(CAFOs), for compliance inspections and enforcement, particularly 

in high priority geographical areas such as the Chesapeake Bay 

watershed. The EPA is using aerial surveillance, aerial photomstockstill on DSK4VPTVN1PROD with HEARINGS

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graphs, and geographic and mapping information as an integral 

part of its enforcement strategy in the Chesapeake Bay region and 

elsewhere. 

Local farmers, ranchers, and others in the regulated community 

are concerned about their privacy and what the EPA is doing with 

the information it collects. Many stakeholders are concerned that 

the EPA is abusing its use of aerial surveillance and of aerial photographs and geographic and mapping information. Many believe it 

constitutes an invasion of privacy, and question the legality of 

using modern technology like this for these purposes. There is the 

issue of the EPA’s interpretation of the Agency’s authority under 

the CWA to use such inspection and enforcement approaches. 

There is also a concern that there has been a dramatic shift in the 

EPA’s compliance and enforcement strategy, from the approach of 

compliance assistance through partnering with the regulated community to achieve compliance with environmental, health, and 

safety laws, to one of a heavy-handed, top-down Federally-dominated enforcement approach. Stakeholders feel this should not be 

the way the Federal government works with its farmers and other 

small businesses. 

As a result of the many concerns voiced by stakeholders about 

the EPA’s use of aerial surveillance, aerial photographs, and geographic and mapping information for inspections and enforcement 

under the CWA, on June 19, 2012, Representative Capito introduced H.R. 5961, the Farmer’s Privacy Act of 2012, to provide reasonable limits, control, and oversight over the EPA’s use of aerial 

surveillance of agricultural land. H.R. 5961 aims to provide reasonable protections by setting up guidelines to ensure that the EPA 

has legal authority and reasonable suspicion to fly over agricultural 

land and conduct aerial surveillance. 

HEARINGS

No hearings were held on H.R. 5961. 

LEGISLATIVE HISTORY AND CONSIDERATION

On June 19, 2012, Representative Shelley Moore Capito of West 

Virginia introduced H.R. 5961, the Farmer’s Privacy Act of 2012, 

a bill to provide reasonable limits, control, and oversight over 

EPA’s use of aerial surveillance of agricultural land. On August 1, 

2012, the Committee on Transportation and Infrastructure met in 

open session to consider H.R. 5961, and ordered the bill reported 

favorably to the House by voice vote with a quorum present. 

An amendment was offered in Committee by Representative Capito, which was adopted by voice vote. The amendment made a clarifying change to the bill. The amendment aimed to clarify that the 

type of aircraft referred to in the bill is both manned and unmanned aircraft. 

Representative Landry also offered an amendment which was 

adopted by voice vote. The amendment would remove public notice 

as one of the options available to the EPA before conducting an 

aerial surveillance. The amendment would also add fish and other 

aquatic species habitat to the definition of ‘‘agricultural land’’ in 

the bill, and provide additional protections for landowners by excluding the Freedom of Information Act from applying to information collected through aerial surveillance conducted under this bill. 

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In addition the amendment would prohibit the EPA from disclosing 

information collected through aerial surveillance conducted under 

this bill, and require the EPA to destroy information collected 

through aerial surveillance conducted under this bill unless the information is pertinent to an active investigation or prosecution. 

COMMITTEE VOTES

Clause 3(b) of rule XIII of the House of Representatives requires 

each Committee report to include the total number of votes cast for 

and against on each record vote on a motion to report and on any 

amendment offered to the measure or matter, and the names of 

those members voting for and against. There were no recorded 

votes during consideration of H.R. 5961. A motion to order H.R. 

5961 reported favorably to the House was agreed to by voice vote 

with a quorum present. 

COMMITTEE OVERSIGHT FINDINGS

With respect to the requirements of clause 3(c)(1) of rule XIII of 

the Rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives does not apply where a cost estimate and comparison prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974 has been timely 

submitted prior to the filing of the report and is included in the report. Such a cost estimate is included in this report. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

With respect to the requirement of clause 3(c)(3) of rule XIII of 

the Rules of the House of Representatives and section 402 of the 

Congressional Budget Act of 1974, the Committee has received the 

enclosed cost estimate for H.R. 5961 from the Director of the Congressional Budget Office: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, September 12, 2012. 

Hon. JOHN L. MICA, 

Chairman, Committee on Transportation and Infrastructure, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 5961, the Farmer’s Privacy Act of 2012. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Susanne S. Mehlman. 

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure. 

H.R. 5961—Farmer’s Privacy Act of 2012 

H.R. 5961 would prohibit the Environmental Protection Agency 

(EPA) from conducting aerial surveillance of agricultural land 

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1 EPA’s Region 7 office, which covers areas where many animal feeding operations exist (i.e., 

the states of Iowa, Kansas, Missouri, and Nebraska and nine tribal nations), has conducted 16 

over-flights since 2010. Such flights usually involve inspections of multiple sites per flight. As 

a result of those flights, the EPA initiated more than 50 enforcement actions against animal 

feeding operations. The agency also notes that it has found that the vast majority of the operations they inspect comply with the Clean Water Act. EPA has no records of the number of aerial inspection flights conducted by other regional offices. 

when enforcing the Clean Water Act (CWA) unless EPA receives 

voluntary written consent from the owner or operator of the land 

or obtains a certification of reasonable suspicion from a district 

court that a violation of the CWA is occurring. In addition, this bill 

would prohibit EPA from disclosing information collected through 

aerial surveillance unless that information is needed for purposes 

of an investigation or prosecution. Finally, the bill would exempt 

the information collected from the Freedom of Information Act and 

would require EPA to destroy the information collected within 30 

days unless it is pertinent to an investigation or prosecution. 

According to EPA, the use of aerial surveillance provides an efficient and cost-effective tool for investigating CWA issues, especially 

those related to animal feeding operations. Such over-flights generally cost between $1,000 and $2,500 per flight and allow several 

animal feeding operations to be inspected at one time.1 The cost of 

on-site inspections, on the other hand, varies depending on the location, time in field, and time needed to analyze any samples taken 

during the inspection. On-site inspections at a livestock or poultry 

operation, for example, can cost as much as $10,000 or more per 

inspection, depending on the extent of the inspection required. 

Because H.R. 5961 would preclude EPA from conducting aerial 

surveillance of farms, except under certain circumstances, the 

agency would rely more heavily on individual on-site inspections 

and other information-gathering tools, such as sending written requests for information to individual farmers, to identify activities 

that may affect water quality. We expect that the agency would 

need to conduct more than 60 on-site inspections per year if surveillance flights were precluded. As a result, CBO estimates that 

enacting H.R. 5961 would increase spending by about $1 million 

annually over the next five years. 

Pay-as-you-go procedures do not apply to H.R. 5961 because enacting the bill would not affect direct spending or revenues. 

H.R. 5961 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of state, local, or tribal governments. 

The CBO staff contact for this estimate is Susanne S. Mehlman. 

This estimate was approved by Theresa Gullo, Deputy Assistant 

Director for Budget Analysis. 

PERFORMANCE GOALS AND OBJECTIVES

With respect to the requirement of clause 3(c)(4) of rule XIII of 

the Rules of the House of Representatives, the performance goals 

and objectives of this legislation are to provide reasonable limits, 

control, and oversight over EPA’s use of aerial surveillance of agricultural land. 

ADVISORY OF EARMARKS

Pursuant to clause 9 of rule XXI of the Rules of the House of 

Representatives, the Committee is required to include a list of conmstockstill on DSK4VPTVN1PROD with HEARINGS

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gressional earmarks, limited tax benefits, or limited tariff benefits 

as defined in clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 

the House of Representatives. No provision in the bill includes an 

earmark, limited tax benefit, or limited tariff benefit under clause 

9(e), 9(f), or 9(g) of rule XXI. 

FEDERAL MANDATE STATEMENT

The Committee adopts as its own the estimate of Federal mandates prepared by the Director of the Congressional Budget Office 

pursuant to section 423 of the ‘‘Unfunded Mandates Reform Act’’ 

(P.L. 104–4). 

PREEMPTION CLARIFICATION

Section 423 of the Congressional Budget Act of 1974 requires the 

report of any Committee on a bill or joint resolution to include a 

statement on the extent to which the bill or joint resolution is intended to preempt state, local, or tribal law. The Committee states 

that H.R. 5961 does not preempt any state, local, or tribal law. 

ADVISORY COMMITTEE STATEMENT

No advisory committees within the meaning of section 5(b) of the 

Federal Advisory Committee Act are created by this legislation. 

APPLICABILITY OF LEGISLATIVE BRANCH

The Committee finds that the legislation does not relate to the 

terms and conditions of employment or access to public services or 

accommodations within the meaning of section 102(b)(3) of the Congressional Accountability Act (P.L. 104–1). 

SECTION-BY-SECTION ANALYSIS OF LEGISLATION

Section 1. Short title 

Section 1 states that the Act may be referred to as the ‘‘Farmer’s 

Privacy Act of 2012.’’ 

Section 2. Limitation on use of aerial surveillance 

Section 2(a) of H.R. 5961 provides that, subject to exceptions 

specified in subsection (b), the Administrator of the Environmental 

Protection Agency may not conduct aerial surveillance of agricultural land when exercising any authority under the Clean Water 

Act. 

Section 2(b) of the bill provides exceptions to the prohibition on 

the use of aerial surveillance of agricultural land in Subsection (a). 

These exceptions are intended to ensure that EPA has the flexibility it needs to conduct inspections under the CWA. The exceptions to the prohibition on aerial surveillance provided by the bill 

are when the Administrator has: 

(1) Obtained the voluntary written consent of the owner or operator of the land to be surveilled in accordance with Section 3; and 

(2) Obtained a certification of reasonable suspicion in accordance 

with Section 4. 

The Committee adopted an amendment in a Committee meeting 

held on August 1, 2012, that, among other things, amended Subsection (b) by striking a third exception to the prohibition on the 

use of aerial surveillance of agricultural land. That third exception 

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would have permitted EPA to conduct aerial surveillance if the 

EPA Administrator has given public notice. (The amendment also 

struck a section of the bill that would have described the conditions 

under which the public notice exception would apply.) 

Section 3. Voluntary written consent 

Section 3(a) of the bill provides that, in order to conduct aerial 

surveillance under Section 2(b)(1), the EPA Administrator is required to obtain, from the owner or operator of the land to be 

surveilled, written consent to such surveillance. The consent must 

be express and in writing. Oral or implied consent is not acceptable. 

Section 3(b) states that the EPA Administrator shall ensure that 

any written consent required under Subsection (a): 

(1) Specifies the period during which the consent is effective, 

which may not exceed one year; 

(2) Contains a specific description of the geographical area to 

be surveilled; and 

(3) If requested by the owner or operator of the land to be 

surveilled, contains limitations on the days and times during 

which the surveillance may be conducted. 

Section 3(c) provides that the EPA Administrator shall ensure 

that any written consent required under Subsection (a) is granted 

voluntarily by the owner or operator of the land to be surveilled. 

In addition, the Administrator may not threaten additional, more 

detailed, or more thorough inspections, or otherwise coerce or entice such owner or operator, in order to obtain such consent. 

Section 4. Certification of reasonable suspicion 

Section 4(a) of the bill provides that, if EPA has ‘‘reasonable suspicion’’ that a violation of the Clean Water Act is occurring, then 

EPA may conduct aerial surveillance if the Administrator obtains 

permission in the form of a certification of reasonable suspicion 

from the United States District Court for the District of Columbia. 

Section 4(b) specifies the conditions where the United States District Court for the District of Columbia may issue to the Administrator a certification of reasonable suspicion. In order for the court 

to issue to the Administrator such a certification: 

(1) The Administrator must submit, to the court, an affidavit 

setting forth specific and articulable facts that would indicate 

to a reasonable person that a violation of the CWA exists in 

the area to be surveilled; and 

(2) The court must find that the Administrator has shown 

reasonable suspicion that an owner or operator of agricultural 

land in the area to be surveilled has violated the CWA. 

Section 5. Disclosure of information 

The Committee adopted an amendment in a Committee meeting 

held on August 1, 2012, that, among other things, amended H.R. 

5961 by adding a new Section 5, entitled ‘‘Disclosure of Information.’’ New Section 5(a) of the bill provides that the Administrator 

may not disclose information collected through aerial surveillance 

conducted under Section 2(b), except as provided in Subsection (c) 

of this section or for the purposes of an investigation or prosecution 

by the Administrator as described in Section 6 of the bill. 

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New Section 5(b) provides that the Freedom of Information Act 

(Section 552 of Title 5, United States Code) shall not apply to any 

information collected through aerial surveillance conducted under 

Section 2(b) of the bill. 

Amended Section 5(c) provides the owner or operator of land 

surveilled under this bill the right to petition for copies of the information collected through such surveillance. The EPA Administrator 

cannot use Subsection (a) as a basis for refusing to disclose such 

information to the owner or operator of land surveilled under this 

bill, if such owner or operator has petitioned EPA for such information. 

Section 6. Destruction of information 

The Committee adopted an amendment in a Committee meeting 

held on August 1, 2012, that, among other things, amended H.R. 

5961 by adding a new Section 6, entitled ‘‘Destruction of Information.’’ Amended Section 6 requires the EPA Administrator to destroy information collected through aerial surveillance conducted 

under Section 2(b) not later than 30 days after collection, unless 

the information is pertinent to an active investigation or prosecution by the Administrator. 

Section 7. Rule of construction 

Section 7 of the bill provides that nothing in this bill shall be interpreted as expanding the power of the EPA Administrator to inspect, monitor, or conduct surveillance of agricultural lands pursuant to the CWA or any other Federal law. 

Section 8. Definitions 

Section 8 of the bill defines the following terms: aerial surveillance, Administrator, agricultural land, and court. The Committee 

adopted an amendment in a Committee meeting held on August 1, 

2012, that amended the definition of aerial surveillance. The term 

‘‘aerial surveillance,’’ as amended, is defined as including any surveillance conducted from the air, including surveillance conducted 

from manned or unmanned aircraft, or the use of aerial or satellite 

images, regardless of whether the images are publicly available. 

Manned or unmanned aircraft may include fixed wing aircraft, helicopters, drones, or remote controlled aircraft. 

The term ‘‘Administrator’’ means the Administrator of the Environmental Protection Agency, or in the case of an action taken pursuant to a permit program approved under Section 402 of the 

CWA, the head of the state agency administering the program. 

The Committee adopted an amendment in a Committee meeting 

held on August 1, 2012, that, among other things, amended the 

definition of agricultural land. The term ‘‘agricultural land,’’ as 

amended, includes land used primarily for agricultural production, 

including cropland, grassland, prairie land, improved pastureland, 

rangeland, cropped woodland, marshes, reclaimed land, fish or 

other aquatic species habitat, and land used for agro-forestry or the 

production of livestock. 

The term ‘‘court’’ means the United States District Court for the 

District of Columbia. 

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CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

Clause 3(e) of rule XIII of the Rules of the House of Representatives (the Ramseyer Rule) requires that changes in existing law 

made by a bill, as reported, be shown. If enacted, H.R. 5961 would 

not repeal or amend any statute or part thereof. 

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ADDITIONAL VIEWS 

We have significant concerns with this legislation that, contrary 

to supporters’ claims, will do nothing to protect farmers’ privacy or 

save the taxpayers’ money. Instead, it is nothing more than a lessthan-subtle attempt to prevent the Environmental Protection Agency (EPA) from enforcing the Clean Water Act (CWA). 

Although supporters of the bill claim the use of aerial surveillance by EPA to conduct CWA enforcement is a new enforcement 

tool employed by the current Administration in just the last two 

years, that claim is not accurate. Aerial surveillance by EPA was 

initiated during the Bush Administration and has been employed 

as a cost-saving approach for at least a decade to identify potential 

air, water, and land pollution. Aircraft may be used to locate regulated facilities, identify discharges, learn about water connections 

and pathways, and gather information, such as photographs and 

exact locations. The EPA and other agencies also use aircraft for 

emergency response. 

EPA and many other Federal, state, and local agencies have 

turned to aerial surveillance as a way to save money and better 

target routine inspections and enforcement efforts. For example, in 

the case of agricultural operations, on-the-ground inspections at 

livestock and poultry operations by EPA can cost up to $10,000 per 

inspection, while overflight inspections generally cost between 

$1,000 and $2,500 and allow several animal feeding operations to 

be inspected at one time. These overflight inspections allow EPA to 

identify possible compliance issues at regulated animal feedlots and 

other operations and then focus on-the-ground inspections on cases 

where pollution problems are identified. According to the nonpartisan Congressional Budget Office (CBO), EPA will need to conduct more than 60 on-site inspections if the bill is enacted. As a 

result, CBO estimates that ‘‘enacting H.R. 5961 would increase 

spending by about $1 million annually over the next five years.’’ 

It was not until this past spring, however, when certain media 

outlets, several blogs, and even some Members of Congress started 

speculating that EPA was using aerial drones to spy on 

unsuspecting farmers in the Midwest, that the use of aerial surveillance came under the microscope. As was quickly revealed, however, EPA does not use drones, also known as unmanned aircraft, 

for enforcement or compliance surveillance—in the Midwest or anywhere else. 

Ironically, many other Federal, state, and local agencies do use 

drones. In fact, there are currently 107 active certificates of authorization that have been issued by the Federal Aviation Administration (FAA) to a range of Federal, state, and local agencies to use 

drones. In addition, there are 18 private companies with active permits to fly drones right now in the U.S. This bill, however, does 

nothing to address that widespread use of unmanned aircraft and 

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the privacy issues that have been raised. Despite the concerns expressed by the bill’s sponsors that aerial surveillance by this one 

agency constitutes ‘‘spying’’, the Majority does not seem terribly 

concerned about it. Not only has the Committee never held a hearing about the privacy implications of using drones or other aircraft 

for aerial surveillance, but it has actually encouraged, not discouraged, the use of drones around the United States. 

Specifically, the Republican-led Committee and Congress passed 

FAA reauthorization legislation (H.R. 658) last year that not only 

allowed, but actually promoted, the use of drones. Then, in July of 

this year, the Republican-led House passed legislation (H.R. 2578) 

to expand the use of Department of Homeland Security drones in 

the border region, with virtually no restrictions. Thus, if Congress 

enacts H.R. 5961, farmers may be assured that EPA will never use 

drones to spy on them, but they will not be free of all the other 

agencies that are using them around the country every day. Moreover, given this newfound concern with drones, we wonder whether 

the Majority plans to repeal their drone-promoting provisions enacted in the FAA reauthorization legislation and preclude other 

agencies from using these aircraft as well. 

The bill also prohibits EPA from using manned aircraft for overflight inspections. Like hundreds, if not thousands, of other Federal, state, and local agencies, EPA does use manned aircraft for 

overflight inspections. The bill does nothing to prohibit any agencies other than EPA from using such aircraft, and overflight inspections of other agencies will continue to fly over farmland and other 

lands around the United States every single day. For example— • The United States Department of Agriculture (USDA) conducts 

routine aerial surveillance over much of the nation’s agricultural 

lands. Photos are used for a variety of purposes, including inspections to determine compliance with USDA programs. USDA has 

also awarded Rural Development grants to communities for the 

purchase of unmanned aerial aircraft for the prevention of ‘‘agricultural-related crimes’’. 

• The Fish and Wildlife Service conducts aerial surveillance for 

Federal fish and wildlife law enforcement purposes and for population assessments. 

• The Bureau of Reclamation conducts manned and unmanned 

flights to assess irrigated acreage and look for illegal water users, 

monitor river/reservoir conditions, evaluate riparian vegetation and 

assess sediment transport. 

Although the Supreme Court has upheld the use of aerial surveillance (with manned aircraft) for enforcement purposes on three 

separate occasions, privacy concerns in this area still arise every 

day. Despite these concerns, the Committee has not held one hearing on the privacy implications of aerial surveillance, and the bill 

would do nothing to prohibit USDA or any other Federal or state 

agency—other than EPA—from flying over farmers’ land. Apparently, only EPA overflights are a violation of farmers’ privacy. 

Moreover, H.R. 5961 also prohibits EPA from using aerial or satellite images from other agencies, or that are publicly available on 

the internet. Does the Committee plan to prohibit other Federal 

and state agencies from using the images available on Google 

Earth and elsewhere for enforcement purposes? 

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Of further concern, the Committee-reported bill, as amended, expands the definition of agricultural lands that cannot be subject to 

surveillance to include ‘‘fish and other aquatic species habitat’’, and 

contrary to assertions made by the bill’s supporters, this definition, 

and therefore this limitation, is not limited to private lands. Thus, 

the bill, as amended, precludes EPA from using aerial surveillance 

to look for pollution violations along the nation’s coasts and wetlands. The potential impacts of this amendment are difficult to assess and of significant concern. 

In short, if this bill becomes law, EPA will be precluded from 

using cost-effective and efficient enforcement tools that save taxpayers’ money and that hundreds of other agencies have been using 

for years and will continue to use. Instead, EPA will be forced to 

conduct on-the-ground inspections, which are more intrusive and 

cost three or four times the cost of overflight inspections. This is 

not a good use of our resources during these difficult economic 

times. In addition, EPA will be precluded from using this tool to 

look for pollution violations along any of our coasts and wetlands. 

The goal of this bill is simply to make it more difficult for EPA to 

enforce the law on both private and public lands, not to protect privacy. 

PETER A. DEFAZIO. DONNA F. EDWARDS. JERROLD NADLER. 

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