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[House Report 112-682]
[From the U.S. Government Publishing Office]

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

    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 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 Sec. 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 CWASec. Sec.  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 photographs, 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. 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 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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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 congressional 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 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.
    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.

         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.

                            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 less-than-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 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?
    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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