II 

115TH CONGRESS 

2D SESSION S. 2663 

To modify and improve provisions relating to environmental requirements 

for agriculture and agricultural producers, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 12, 2018 

Mr. BARRASSO (for himself, Mrs. CAPITO, Mr. CRAPO, Mr. COTTON, Mr. 

ENZI, Mrs. FISCHER, Mr. GRASSLEY, Mr. INHOFE, Mr. RISCH, and Mr. 

ROBERTS) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works 

A BILL 

To modify and improve provisions relating to environmental 

requirements for agriculture and agricultural producers, 

and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Agriculture Creates 

5 Real Employment Act’’ or the ‘‘ACRE Act’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 


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1 (1) ADMINISTRATOR.—The term ‘‘Adminis2 trator’’ means the Administrator of the Environ3 mental Protection Agency. 

4 (2) DIRECTOR.—The term ‘‘Director’’ means 

5 the Director of the United States Fish and Wildlife 

6 Service. 

7 SEC. 3. PREDATORY AND OTHER WILD ANIMALS. 

8 Section 1 of the Act of March 2, 1931 (7 U.S.C. 

9 8351), is amended— 

10 (1) in the second sentence, by striking ‘‘The 

11 Secretary’’ and inserting the following: 

12 ‘‘(b) ADMINISTRATION.—The Secretary’’; 

13 (2) in the first sentence, by striking ‘‘The Sec14 retary’’ and inserting the following: 

15 ‘‘(a) IN GENERAL.—The Secretary’’; and 

16 (3) by adding at the end the following: 

17 ‘‘(c) ACTION BY FWS.—The Director of the United 

18 States Fish and Wildlife Service shall use the most expedi19 tious procedure practicable to process and administer per20 mits for take of— 

21 ‘‘(1) a depredating eagle under the Act of June 

22 8, 1940 (commonly known as the ‘Bald Eagle Pro23 tection Act’) (54 Stat. 250, chapter 278; 16 U.S.C. 

24 668 et seq.), or sections 22.11 through 22.32 of title 

25 50, Code of Federal Regulations (or successor reguVerDate Sep 11 2014 02:39 Apr 14, 2018 Jkt 079200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2663.IS S2663

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1 lations) (including depredation of livestock, wildlife, 

2 and species protected under the Endangered Species 

3 Act of 1973 (16 U.S.C. 1531 et seq.) or any other 

4 Federal management program); or 

5 ‘‘(2) a migratory bird included on the list under 

6 section 10.13 of title 50, Code of Federal Regula7 tions (or successor regulations) that is posing a con8 flict.’’. 

9 SEC. 4. EXEMPTION OF EXPORTATION OF CERTAIN 

10 ECHINODERMS FROM PERMISSION AND LI11 CENSING REQUIREMENTS. 

12 (a) EXEMPTION.—Not later than 30 days after the 

13 date of enactment of this Act, the Director shall amend 

14 section 14.92 of title 50, Code of Federal Regulations, to 

15 clarify that— 

16 (1) fish or wildlife described in subsection (b) 

17 are fishery products exempt from the export permis18 sion requirements of section 9(d)(1) of the Endan19 gered Species Act of 1973 (16 U.S.C. 1538(d)(1)); 

20 and 

21 (2) any person may engage in business as an 

22 exporter of fish or wildlife described in subsection 

23 (b) without procuring— 


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1 (A) permission under section 9(d)(1) of the 

2 Endangered Species Act of 1973 (16 U.S.C. 

3 1538(d)(1)); or 

4 (B) an export license under subpart I of 

5 part 14 of title 50, Code of Federal Regulations 

6 (or successor regulations). 

7 (b) COVERED FISH OR WILDLIFE.—The fish or wild8 life referred to in subsection (a) are members of the phy9 lum Echinodermata that are commonly known as sea ur10 chins and sea cucumbers (including any products of those 

11 members of the phylum Echinodermata) that— 

12 (1) do not require a permit under part 16, 17, 

13 or 23 of title 50, Code of Federal Regulations (or 

14 successor regulations); 

15 (2)(A) are harvested in waters under the juris16 diction of the United States; or 

17 (B) are processed in the United States; and 

18 (3) are— 

19 (A) exported for purposes of human or ani20 mal consumption; or 

21 (B) taken in waters under the jurisdiction 

22 of the United States or on the high seas for 

23 recreational purposes. 


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1 SEC. 5. BAITING OF MIGRATORY GAME BIRDS. 

2 Section 3 of the Migratory Bird Treaty Act (16 

3 U.S.C. 704) is amended by striking subsection (b) and in4 serting the following: 

5 ‘‘(b) PROHIBITION OF BAITING.— 

6 ‘‘(1) DEFINITIONS.—In this subsection: 

7 ‘‘(A) BAITED AREA.— 

8 ‘‘(i) IN GENERAL.—The term ‘baited 

9 area’ means— 

10 ‘‘(I) any area on which salt, 

11 grain, or other feed has been placed, 

12 exposed, deposited, distributed, or 

13 scattered, if the salt, grain, or feed 

14 could lure or attract migratory game 

15 birds; and 

16 ‘‘(II) in the case of waterfowl, 

17 cranes (family Gruidae), and coots 

18 (family Rallidae), a standing, unhar19 vested crop that has been manipulated 

20 through activities such as mowing, 

21 discing, or rolling, unless the activities 

22 are normal agricultural practices. 

23 ‘‘(ii) EXCLUSIONS.—An area shall not 

24 be considered to be a ‘baited area’ if the 

25 area— 


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1 ‘‘(I) has been treated with a nor2 mal agricultural practice; 

3 ‘‘(II) has standing crops that 

4 have not been manipulated; or 

5 ‘‘(III) has standing crops that 

6 have been or are flooded. 

7 ‘‘(B) BAITING.—The term ‘baiting’ means 

8 the direct or indirect placing, exposing, depos9 iting, distributing, or scattering of salt, grain, 

10 or other feed that could lure or attract migra11 tory game birds to, on, or over any areas on 

12 which a hunter is attempting to take migratory 

13 game birds. 

14 ‘‘(C) MIGRATORY GAME BIRD.—The term 

15 ‘migratory game bird’ means migratory bird 

16 species— 

17 ‘‘(i) that are within the taxonomic 

18 families of Anatidae, Columbidae, Gruidae, 

19 Rallidae, and Scolopacidae; and 

20 ‘‘(ii) for which open seasons are pre21 scribed by the Secretary of the Interior. 

22 ‘‘(D) NORMAL AGRICULTURAL PRAC23 TICE.— 


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1 ‘‘(i) IN GENERAL.—The term ‘normal 

2 agricultural practice’ means any practice in 

3 1 annual growing season that— 

4 ‘‘(I) is carried out in order to 

5 produce a marketable crop, including 

6 planting, harvest, post-harvest, or soil 

7 conservation practices; and 

8 ‘‘(II) is recommended for the 

9 successful harvest of a given crop by 

10 the applicable State office of the Co11 operative Extension System of the De12 partment of Agriculture, in consulta13 tion with, and if requested, the con14 currence of, the head of the applicable 

15 State department of fish and wildlife. 

16 ‘‘(ii) INCLUSIONS.— 

17 ‘‘(I) IN GENERAL.—Subject to 

18 subclause (II), the term ‘normal agri19 cultural practice’ includes the destruc20 tion of a crop in accordance with 

21 practices required by the Federal 

22 Crop Insurance Corporation for agri23 cultural producers to obtain crop in24 surance under the Federal Crop In25 surance Act (7 U.S.C. 1501 et seq.) 


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1 on land on which a crop during the 

2 current or immediately preceding crop 

3 year was not harvestable due to a nat4 ural disaster (including any hurricane, 

5 storm, tornado, flood, high water, 

6 wind-driven water, tidal wave, tsu7 nami, earthquake, volcanic eruption, 

8 landslide, mudslide, drought, fire, 

9 snowstorm, or other catastrophe that 

10 is declared a major disaster by the 

11 President in accordance with section 

12 401 of the Robert T. Stafford Dis13 aster Relief and Emergency Assist14 ance Act (42 U.S.C. 5170)). 

15 ‘‘(II) LIMITATIONS.—The term 

16 ‘normal agricultural practice’ only in17 cludes a crop described in subclause 

18 (I) that has been destroyed or manip19 ulated through activities that include 

20 (but are not limited to) mowing, 

21 discing, or rolling if the Federal Crop 

22 Insurance Corporation certifies that 

23 flooding was not an acceptable method 

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1 ance under the Federal Crop Insur2 ance Act (7 U.S.C. 1501 et seq.). 

3 ‘‘(E) WATERFOWL.—The term ‘waterfowl’ 

4 means native species of the family Anatidae. 

5 ‘‘(2) PROHIBITION.—It shall be unlawful for 

6 any person— 

7 ‘‘(A) to take any migratory game bird by 

8 baiting or on or over any baited area, if the 

9 person knows or reasonably should know that 

10 the area is a baited area; or 

11 ‘‘(B) to place or direct the placement of 

12 bait on or adjacent to an area for the purpose 

13 of causing, inducing, or allowing any person to 

14 take or attempt to take any migratory game 

15 bird by baiting or on or over the baited area. 

16 ‘‘(3) REGULATIONS.—The Secretary of the In17 terior may promulgate regulations to implement this 

18 subsection. 

19 ‘‘(4) ANNUAL REPORTS.—The Secretary of Ag20 riculture shall submit to the Secretary of the Inte21 rior an annual report that describes any changes to 

22 normal agricultural practices across the range of 

23 crops grown by agricultural producers in each region 

24 of the United States in which the recommendations 

25 are provided to agricultural producers.’’. 


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1 SEC. 6. USE OF AUTHORIZED PESTICIDES; DISCHARGES OF 

2 PESTICIDES; REPORT. 

3 (a) USE OF AUTHORIZED PESTICIDES.—Section 3(f) 

4 of the Federal Insecticide, Fungicide, and Rodenticide Act 

5 (7 U.S.C. 136a(f)) is amended by adding at the end the 

6 following: 

7 ‘‘(5) USE OF AUTHORIZED PESTICIDES.—Ex8 cept as provided in subsection (s) of section 402 of 

9 the Federal Water Pollution Control Act (33 U.S.C. 

10 1342), the Administrator or a State shall not re11 quire a permit under that Act for a discharge from 

12 a point source into navigable waters of— 

13 ‘‘(A) a pesticide authorized for sale, dis14 tribution, or use under this Act; or 

15 ‘‘(B) the residue of the pesticide, resulting 

16 from the application of the pesticide.’’. 

17 (b) DISCHARGES OF PESTICIDES.—Section 402 of 

18 the Federal Water Pollution Control Act (33 U.S.C. 1342) 

19 is amended by adding at the end the following: 

20 ‘‘(s) DISCHARGES OF PESTICIDES.— 

21 ‘‘(1) NO PERMIT REQUIREMENT.—Except as 

22 provided in paragraph (2), a permit shall not be re23 quired by the Administrator or a State under this 

24 Act for a discharge from a point source into navi25 gable waters of— 


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1 ‘‘(A) a pesticide authorized for sale, dis2 tribution, or use under the Federal Insecticide, 

3 Fungicide, and Rodenticide Act (7 U.S.C. 136 

4 et seq.); or 

5 ‘‘(B) the residue of the pesticide, resulting 

6 from the application of the pesticide. 

7 ‘‘(2) EXCEPTIONS.—Paragraph (1) shall not 

8 apply to the following discharges of a pesticide or 

9 pesticide residue: 

10 ‘‘(A) A discharge resulting from the appli11 cation of a pesticide in violation of a provision 

12 of the Federal Insecticide, Fungicide, and 

13 Rodenticide Act (7 U.S.C. 136 et seq.) relevant 

14 to protecting water quality if— 

15 ‘‘(i) the discharge would not have oc16 curred without the violation; or 

17 ‘‘(ii) the quantity of pesticide or pes18 ticide residue in the discharge is greater 

19 than would have occurred without the vio20 lation. 

21 ‘‘(B) Stormwater discharges subject to reg22 ulation under subsection (p). 

23 ‘‘(C) The following discharges subject to 

24 regulation under this section: 


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1 ‘‘(i) Manufacturing or industrial efflu2 ent. 

3 ‘‘(ii) Treatment works effluent. 

4 ‘‘(iii) Discharges incidental to the nor5 mal operation of a vessel, including a dis6 charge resulting from ballasting operations 

7 or vessel biofouling prevention.’’. 

8 (c) REPORT.—Not later than 1 year after the date 

9 of enactment of this Act, the Administrator, in consulta10 tion with the Secretary of Agriculture, shall submit a re11 port to the Committee on Environment and Public Works 

12 and the Committee on Agriculture, Nutrition, and For13 estry of the Senate and the Committee on Transportation 

14 and Infrastructure and the Committee on Agriculture of 

15 the House of Representatives that includes— 

16 (1) the status of intra-agency coordination be17 tween the Office of Water and the Office of Pes18 ticide Programs of the Environmental Protection 

19 Agency regarding streamlining information collec20 tion, standards of review, and data use relating to 

21 water quality impacts from the registration and use 

22 of pesticides; 

23 (2) an analysis of the effectiveness of current 

24 regulatory actions relating to pesticide registration 

25 and use aimed at protecting water quality; and 


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1 (3) any recommendations on how the Federal 

2 Insecticide, Fungicide, and Rodenticide Act (7 

3 U.S.C. 136 et seq.) can be modified to better protect 

4 water quality and human health. 

5 SEC. 7. FARMER IDENTITY PROTECTION. 

6 (a) DEFINITIONS.—In this section: 

7 (1) AGENCY.—The term ‘‘Agency’’ means the 

8 Environmental Protection Agency. 

9 (2) LIVESTOCK OPERATION.—The term ‘‘live10 stock operation’’ includes any operation involved in 

11 the raising or finishing of livestock and poultry. 

12 (b) PROCUREMENT AND DISCLOSURE OF INFORMA13 TION.— 

14 (1) PROHIBITION.—Except as provided in para15 graph (2), the Administrator, any officer or em16 ployee of the Agency, or any contractor or coop17 erator of the Agency, shall not disclose the informa18 tion of any owner, operator, or employee of a live19 stock operation provided to the Agency by a live20 stock producer or a State agency in accordance with 

21 the Federal Water Pollution Control Act (33 U.S.C. 

22 1251 et seq.) or any other law, including— 

23 (A) names; 

24 (B) telephone numbers; 

25 (C) email addresses; 


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1 (D) physical addresses; 

2 (E) Global Positioning System coordinates; 

3 (F) financial information, including busi4 ness records and production data; or 

5 (G) other identifying information regarding 

6 the location of the owner, operator, livestock, or 

7 employee. 

8 (2) EFFECT.—Nothing in this section affects— 

9 (A) the disclosure of information described 

10 in paragraph (1) if— 

11 (i) the information has been trans12 formed into a statistical or aggregate form 

13 at the county level or higher without any 

14 information that identifies the agricultural 

15 operation or agricultural producer; or 

16 (ii) the livestock producer consents to 

17 the disclosure; 

18 (B) the authority of any State agency to 

19 collect information on livestock operations; or 

20 (C) the authority of the Agency to disclose 

21 the information on livestock operations to State 

22 or other Federal governmental agencies. 

23 (3) CONDITION OF PERMIT OR OTHER PRO24 GRAMS.—The approval of any permit, practice, or 

25 program administered by the Administrator shall not 


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1 be conditioned on the consent of the livestock pro2 ducer under paragraph (2)(A)(ii). 

3 SEC. 8. PRIVACY OF AGRICULTURAL PRODUCERS. 

4 (a) DEFINITIONS.—In this section: 

5 (1) ADMINISTRATOR.—The term ‘‘Adminis6 trator’’ means— 

7 (A) the Administrator; and 

8 (B) in the case of an action taken pursu9 ant to a permit program approved under section 

10 402 of the Federal Water Pollution Control Act 

11 (33 U.S.C. 1342), the head of the State agency 

12 administering the program. 

13 (2) AERIAL SURVEILLANCE.—The term ‘‘aerial 

14 surveillance’’ means any surveillance from the air, 

15 including— 

16 (A) surveillance conducted from manned or 

17 unmanned aircraft; or 

18 (B) the use of aerial or satellite images, re19 gardless of whether the images are publicly 

20 available. 

21 (3) AGRICULTURAL LAND.— 

22 (A) IN GENERAL.—The term ‘‘agricultural 

23 land’’ means land used primarily for agricul24 tural production. 


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1 (B) INCLUSIONS.—The term ‘‘agricultural 

2 land’’ includes— 

3 (i) cropland; 

4 (ii) grassland; 

5 (iii) prairie land; 

6 (iv) improved pastureland; 

7 (v) rangeland; 

8 (vi) cropped woodland; 

9 (vii) marshes; 

10 (viii) reclaimed land; 

11 (ix) fish or other aquatic species habi12 tat; 

13 (x) land used for— 

14 (I) agroforestry; or 

15 (II) the production of livestock; 

16 and 

17 (xi) land that contains existing infra18 structure used for— 

19 (I) the production of livestock; or 

20 (II) another agricultural oper21 ation. 

22 (b) LIMITATION ON USE OF AERIAL SURVEIL23 LANCE.— 

24 (1) IN GENERAL.—Subject to paragraph (2), in 

25 exercising any authority under the Federal Water 


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1 Pollution Control Act (33 U.S.C. 1251 et seq.), the 

2 Administrator may not conduct aerial surveillance of 

3 agricultural land. 

4 (2) EXCEPTIONS.—The Administrator may con5 duct aerial surveillance of agricultural land under 

6 the Federal Water Pollution Control Act (33 U.S.C. 

7 1251 et seq.) if the Administrator— 

8 (A) has obtained the voluntary written 

9 consent of the owner or operator of the land to 

10 be surveilled in accordance with subsection (c); 

11 or 

12 (B) has obtained a certification of reason13 able suspicion in accordance with subsection 

14 (d). 

15 (c) VOLUNTARY WRITTEN CONSENT.— 

16 (1) CONSENT REQUIRED.—In order to conduct 

17 aerial surveillance under subsection (b)(2)(A), the 

18 Administrator shall obtain from the owner or oper19 ator of the land to be surveilled written consent to 

20 such surveillance. 

21 (2) CONTENTS.—The Administrator shall en22 sure that any written consent required under para23 graph (1)— 


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1 (A) specifies the period during which the 

2 consent is effective, which may not exceed 1 

3 year; 

4 (B) contains a specific description of the 

5 geographical area to be surveilled; and 

6 (C) on the request of the owner or oper7 ator of the land to be surveilled, contains limi8 tations on the days and times during which the 

9 surveillance may be conducted. 

10 (3) ASSURANCE OF VOLUNTARY CONSENT.— 

11 The Administrator— 

12 (A) shall ensure that any written consent 

13 required under paragraph (1) is granted volun14 tarily by the owner or operator of the land to 

15 be surveilled; and 

16 (B) may not threaten additional, more de17 tailed, or more thorough inspections, or other18 wise coerce or entice the owner or operator, in 

19 order to obtain written consent. 

20 (d) CERTIFICATION OF REASONABLE SUSPICION.— 

21 (1) IN GENERAL.—In order to conduct aerial 

22 surveillance under subsection (b)(2)(B), the Admin23 istrator shall obtain from a United States district 

24 court of competent jurisdiction (referred to in this 


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1 subsection as a ‘‘Court’’) a certification of reason2 able suspicion in accordance with this subsection. 

3 (2) CERTIFICATION REQUIREMENTS.—A Court 

4 may issue to the Administrator a certification of rea5 sonable suspicion if— 

6 (A) the Administrator submits to the 

7 Court an affidavit setting forth specific and 

8 articulable facts that would indicate to a rea9 sonable person that a violation of the Federal 

10 Water Pollution Control Act (33 U.S.C. 1251 et 

11 seq.) exists in the area to be surveilled; and 

12 (B) the Court finds that the Administrator 

13 has shown reasonable suspicion that an owner 

14 or operator of agricultural land in the area to 

15 be surveilled has violated the Federal Water 

16 Pollution Control Act (33 U.S.C. 1251 et seq.). 

17 (e) DISCLOSURE OF INFORMATION.— 

18 (1) IN GENERAL.—Except as provided in para19 graph (3), or for the purposes of an investigation or 

20 prosecution by the Administrator as described in 

21 subsection (f), the Administrator may not disclose 

22 information collected through aerial surveillance con23 ducted under subsection (b)(2). 

24 (2) APPLICABILITY OF FOIA.—Section 552 of 

25 title 5, United States Code, shall not apply to any 


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1 information collected through aerial surveillance con2 ducted under subsection (b)(2). 

3 (3) RIGHT TO PETITION.—The owner or oper4 ator of land surveilled under this section has the 

5 right to petition for copies of the information col6 lected through such surveillance. 

7 (f) DESTRUCTION OF INFORMATION.—The Adminis8 trator shall destroy information collected through aerial 

9 surveillance conducted under subsection (b)(2) not later 

10 than 30 days after collection, unless the information is 

11 pertinent to an active investigation or prosecution by the 

12 Administrator. 

13 (g) RULE OF CONSTRUCTION.—Nothing in this Act 

14 expands the power of the Administrator to inspect, mon15 itor, or conduct surveillance of agricultural land pursuant 

16 to the Federal Water Pollution Control Act (33 U.S.C. 

17 1251 et seq.) or any other Federal law. 

18 SEC. 9. REGULATIONS RELATING TO THE TAKING OF DOU19 BLE-CRESTED CORMORANTS. 

20 (a) FORCE AND EFFECT.— 

21 (1) IN GENERAL.—Subject to subsection (b), 

22 sections 21.47 and 21.48 of title 50, Code of Fed23 eral Regulations (as in effect on January 1, 2016), 

24 shall have the force and effect of law. 


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1 (2) PUBLIC NOTICE.—The Secretary of the In2 terior (referred to in this section as the ‘‘Sec3 retary’’), acting through the Director of the United 

4 States Fish and Wildlife Service (referred to in this 

5 section as the ‘‘Director’’), shall notify the public of 

6 the authority provided by paragraph (1) in a manner 

7 determined to be appropriate by the Secretary. 

8 (b) SUNSET.—The authority provided by subsection 

9 (a)(1) shall terminate on the effective date of a regulation 

10 promulgated by the Director after the date of enactment 

11 of this Act to control depredation of double-crested cor12 morant populations. 

13 (c) RULE OF CONSTRUCTION.—Nothing in this sec14 tion limits the authority of the Director to promulgate reg15 ulations relating to the taking of double-crested cor16 morants under any other law. 

17 SEC. 10. APPLICABILITY OF SPILL PREVENTION, CONTROL, 

18 AND COUNTERMEASURE RULE. 

19 Section 1049 of the Water Resources Reform and De20 velopment Act of 2014 (33 U.S.C. 1361 note; 128 Stat. 

21 1257; 130 Stat. 1902) is amended— 

22 (1) in subsection (b)— 

23 (A) in paragraph (1)(B), by striking 

24 ‘‘20,000’’ and inserting ‘‘42,000’’; 


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1 (B) in paragraph (2), by striking subpara2 graph (A) and inserting the following: 

3 ‘‘(A) an aggregate aboveground storage ca4 pacity greater than 10,000 gallons but less than 

5 42,000 gallons; and’’; 

6 (C) in paragraph (3)— 

7 (i) by striking subparagraph (A) and 

8 inserting the following: 

9 ‘‘(A) with an aggregate aboveground stor10 age capacity of less than or equal to 10,000 

11 gallons; and’’; and 

12 (ii) in subparagraph (B), by striking 

13 ‘‘; and’’ and inserting a period; and 

14 (D) by striking paragraph (4); 

15 (2) in subsection (c)(2)(A)— 

16 (A) in clause (i), by striking ‘‘1,000’’ and 

17 inserting ‘‘1,320’’; and 

18 (B) in clause (ii), by striking ‘‘2,500’’ and 

19 inserting ‘‘3,000’’; and 

20 (3) by striking subsection (d). 

Æ 


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