II 115th CONGRESS 2d Session S. 2663 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. Short title This Act may be cited as the Agriculture Creates Real Employment Act or the ACRE Act . 2. Definitions In this Act: (1) Administrator The term Administrator means the Administrator of the Environmental Protection Agency. (2) Director The term Director means the Director of the United States Fish and Wildlife Service. 3. Predatory and other wild animals Section 1 of the Act of March 2, 1931 ( 7 U.S.C. 8351 ), is amended— (1) in the second sentence, by striking The Secretary and inserting the following: (b) Administration The Secretary ; (2) in the first sentence, by striking The Secretary and inserting the following: (a) In general The Secretary ; and (3) by adding at the end the following: (c) Action by FWS The Director of the United States Fish and Wildlife Service shall use the most expeditious procedure practicable to process and administer permits for take of— (1) a depredating eagle under the Act of June 8, 1940 (commonly known as the Bald Eagle Protection Act ) (54 Stat. 250, chapter 278; 16 U.S.C. 668 et seq.), or sections 22.11 through 22.32 of title 50, Code of Federal Regulations (or successor regulations) (including depredation of livestock, wildlife, and species protected under the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq.) or any other Federal management program); or (2) a migratory bird included on the list under section 10.13 of title 50, Code of Federal Regulations (or successor regulations) that is posing a conflict. . 4. Exemption of exportation of certain echinoderms from permission and licensing requirements (a) Exemption Not later than 30 days after the date of enactment of this Act, the Director shall amend section 14.92 of title 50, Code of Federal Regulations, to clarify that— (1) fish or wildlife described in subsection (b) are fishery products exempt from the export permission requirements of section 9(d)(1) of the Endangered Species Act of 1973 ( 16 U.S.C. 1538(d)(1) ); and (2) any person may engage in business as an exporter of fish or wildlife described in subsection (b) without procuring— (A) permission under section 9(d)(1) of the Endangered Species Act of 1973 ( 16 U.S.C. 1538(d)(1) ); or (B) an export license under subpart I of part 14 of title 50, Code of Federal Regulations (or successor regulations). (b) Covered fish or wildlife The fish or wildlife referred to in subsection (a) are members of the phylum Echinodermata that are commonly known as sea urchins and sea cucumbers (including any products of those members of the phylum Echinodermata) that— (1) do not require a permit under part 16, 17, or 23 of title 50, Code of Federal Regulations (or successor regulations); (2) (A) are harvested in waters under the jurisdiction of the United States; or (B) are processed in the United States; and (3) are— (A) exported for purposes of human or animal consumption; or (B) taken in waters under the jurisdiction of the United States or on the high seas for recreational purposes. 5. Baiting of migratory game birds Section 3 of the Migratory Bird Treaty Act ( 16 U.S.C. 704 ) is amended by striking subsection (b) and inserting the following: (b) Prohibition of baiting (1) Definitions In this subsection: (A) Baited area (i) In general The term baited area means— (I) any area on which salt, grain, or other feed has been placed, exposed, deposited, distributed, or scattered, if the salt, grain, or feed could lure or attract migratory game birds; and (II) in the case of waterfowl, cranes (family Gruidae), and coots (family Rallidae), a standing, un­har­vest­ed crop that has been manipulated through activities such as mowing, discing, or rolling, unless the activities are normal agricultural practices. (ii) Exclusions An area shall not be considered to be a baited area if the area— (I) has been treated with a normal agricultural practice; (II) has standing crops that have not been manipulated; or (III) has standing crops that have been or are flooded. (B) Baiting The term baiting means the direct or indirect placing, exposing, depositing, distributing, or scattering of salt, grain, or other feed that could lure or attract migratory game birds to, on, or over any areas on which a hunter is attempting to take migratory game birds. (C) Migratory game bird The term migratory game bird means migratory bird species— (i) that are within the taxonomic families of Anatidae, Columbidae, Gruidae, Rallidae, and Scolopacidae; and (ii) for which open seasons are prescribed by the Secretary of the Interior. (D) Normal agricultural practice (i) In general The term normal agricultural practice means any practice in 1 annual growing season that— (I) is carried out in order to produce a marketable crop, including planting, harvest, post-harvest, or soil conservation practices; and (II) is recommended for the successful harvest of a given crop by the applicable State office of the Cooperative Extension System of the Department of Agriculture, in consultation with, and if requested, the concurrence of, the head of the applicable State department of fish and wildlife. (ii) Inclusions (I) In general Subject to subclause (II), the term normal agricultural practice includes the destruction of a crop in accordance with practices required by the Federal Crop Insurance Corporation for agricultural producers to obtain crop insurance under the Federal Crop Insurance Act ( 7 U.S.C. 1501 et seq.) on land on which a crop during the current or immediately preceding crop year was not harvestable due to a natural disaster (including any hurricane, storm, tornado, flood, high water, wind-driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, drought, fire, snowstorm, or other catastrophe that is declared a major disaster by the President in accordance with section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act ( 42 U.S.C. 5170 )). (II) Limitations The term normal agricultural practice only includes a crop described in subclause (I) that has been destroyed or manipulated through activities that include (but are not limited to) mowing, discing, or rolling if the Federal Crop Insurance Corporation certifies that flooding was not an acceptable method of destruction to obtain crop insurance under the Federal Crop Insurance Act ( 7 U.S.C. 1501 et seq.). (E) Waterfowl The term waterfowl means native species of the family Anatidae. (2) Prohibition It shall be unlawful for any person— (A) to take any migratory game bird by baiting or on or over any baited area, if the person knows or reasonably should know that the area is a baited area; or (B) to place or direct the placement of bait on or adjacent to an area for the purpose of causing, inducing, or allowing any person to take or attempt to take any migratory game bird by baiting or on or over the baited area. (3) Regulations The Secretary of the Interior may promulgate regulations to implement this subsection. (4) Annual reports The Secretary of Agriculture shall submit to the Secretary of the Interior an annual report that describes any changes to normal agricultural practices across the range of crops grown by agricultural producers in each region of the United States in which the recommendations are provided to agricultural producers. . 6. Use of authorized pesticides; discharges of pesticides; report (a) Use of authorized pesticides Section 3(f) of the Federal Insecticide, Fungicide, and Rodenticide Act ( 7 U.S.C. 136a(f) ) is amended by adding at the end the following: (5) Use of authorized pesticides Except as provided in subsection (s) of section 402 of the Federal Water Pollution Control Act ( 33 U.S.C. 1342 ), the Administrator or a State shall not require a permit under that Act for a discharge from a point source into navigable waters of— (A) a pesticide authorized for sale, distribution, or use under this Act; or (B) the residue of the pesticide, resulting from the application of the pesticide. . (b) Discharges of pesticides Section 402 of the Federal Water Pollution Control Act ( 33 U.S.C. 1342 ) is amended by adding at the end the following: (s) Discharges of pesticides (1) No permit requirement Except as provided in paragraph (2), a permit shall not be required by the Administrator or a State under this Act for a discharge from a point source into navigable waters of— (A) a pesticide authorized for sale, distribution, or use under the Federal Insecticide, Fungicide, and Rodenticide Act ( 7 U.S.C. 136 et seq.); or (B) the residue of the pesticide, resulting from the application of the pesticide. (2) Exceptions Paragraph (1) shall not apply to the following discharges of a pesticide or pesticide residue: (A) A discharge resulting from the application of a pesticide in violation of a provision of the Federal Insecticide, Fungicide, and Rodenticide Act ( 7 U.S.C. 136 et seq.) relevant to protecting water quality if— (i) the discharge would not have occurred without the violation; or (ii) the quantity of pesticide or pesticide residue in the discharge is greater than would have occurred without the violation. (B) Stormwater discharges subject to regulation under subsection (p). (C) The following discharges subject to regulation under this section: (i) Manufacturing or industrial effluent. (ii) Treatment works effluent. (iii) Discharges incidental to the normal operation of a vessel, including a discharge resulting from ballasting operations or vessel biofouling prevention. . (c) Report Not later than 1 year after the date of enactment of this Act, the Administrator, in consultation with the Secretary of Agriculture, shall submit a report to the Committee on Environment and Public Works and the Committee on Agriculture, Nutrition, and Forestry of the Senate and the Committee on Transportation and Infrastructure and the Committee on Agriculture of the House of Representatives that includes— (1) the status of intra-agency coordination between the Office of Water and the Office of Pesticide Programs of the Environmental Protection Agency regarding streamlining information collection, standards of review, and data use relating to water quality impacts from the registration and use of pesticides; (2) an analysis of the effectiveness of current regulatory actions relating to pesticide registration and use aimed at protecting water quality; and (3) any recommendations on how the Federal Insecticide, Fungicide, and Rodenticide Act ( 7 U.S.C. 136 et seq.) can be modified to better protect water quality and human health. 7. Farmer identity protection (a) Definitions In this section: (1) Agency The term Agency means the Environmental Protection Agency. (2) Livestock operation The term livestock operation includes any operation involved in the raising or finishing of livestock and poultry. (b) Procurement and disclosure of information (1) Prohibition Except as provided in paragraph (2), the Administrator, any officer or employee of the Agency, or any contractor or cooperator of the Agency, shall not disclose the information of any owner, operator, or employee of a livestock operation provided to the Agency by a livestock producer or a State agency in accordance with the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq.) or any other law, including— (A) names; (B) telephone numbers; (C) email addresses; (D) physical addresses; (E) Global Positioning System coordinates; (F) financial information, including business records and production data; or (G) other identifying information regarding the location of the owner, operator, livestock, or employee. (2) Effect Nothing in this section affects— (A) the disclosure of information described in paragraph (1) if— (i) the information has been transformed into a statistical or aggregate form at the county level or higher without any information that identifies the agricultural operation or agricultural producer; or (ii) the livestock producer consents to the disclosure; (B) the authority of any State agency to collect information on livestock operations; or (C) the authority of the Agency to disclose the information on livestock operations to State or other Federal governmental agencies. (3) Condition of permit or other programs The approval of any permit, practice, or program administered by the Administrator shall not be conditioned on the consent of the livestock producer under paragraph (2)(A)(ii). 8. Privacy of agricultural producers (a) Definitions In this section: (1) Administrator The term Administrator means— (A) the Administrator; and (B) 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. (2) 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. (3) Agricultural land (A) In general The term agricultural land means land used primarily for agricultural production. (B) Inclusions The term agricultural land includes— (i) cropland; (ii) grassland; (iii) prairie land; (iv) improved pastureland; (v) rangeland; (vi) cropped woodland; (vii) marshes; (viii) reclaimed land; (ix) fish or other aquatic species habitat; (x) land used for— (I) agroforestry; or (II) the production of livestock; and (xi) land that contains existing infrastructure used for— (I) the production of livestock; or (II) another agricultural operation. (b) Limitation on use of aerial surveillance (1) In general Subject to paragraph (2), 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. (2) Exceptions The Administrator may conduct aerial surveillance of agricultural land under the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq.) if the Administrator— (A) has obtained the voluntary written consent of the owner or operator of the land to be surveilled in accordance with subsection (c); or (B) has obtained a certification of reasonable suspicion in accordance with subsection (d). (c) Voluntary written consent (1) Consent required In order to conduct aerial surveillance under subsection (b)(2)(A), the Administrator shall obtain from the owner or operator of the land to be surveilled written consent to such surveillance. (2) Contents The Administrator shall ensure that any written consent required under paragraph (1)— (A) specifies the period during which the consent is effective, which may not exceed 1 year; (B) contains a specific description of the geographical area to be surveilled; and (C) on the request of the owner or operator of the land to be surveilled, contains limitations on the days and times during which the surveillance may be conducted. (3) Assurance of voluntary consent The Administrator— (A) shall ensure that any written consent required under paragraph (1) is granted voluntarily by the owner or operator of the land to be surveilled; and (B) may not threaten additional, more detailed, or more thorough inspections, or otherwise coerce or entice the owner or operator, in order to obtain written consent. (d) Certification of reasonable suspicion (1) In general In order to conduct aerial surveillance under subsection (b)(2)(B), the Administrator shall obtain from a United States district court of competent jurisdiction (referred to in this subsection as a Court ) a certification of reasonable suspicion in accordance with this subsection. (2) Certification requirements A Court may issue to the Administrator a certification of reasonable suspicion if— (A) 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 ( 33 U.S.C. 1251 et seq.) exists in the area to be surveilled; and (B) 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 ( 33 U.S.C. 1251 et seq.). (e) Disclosure of information (1) In general Except as provided in paragraph (3), or for the purposes of an investigation or prosecution by the Administrator as described in subsection (f), the Administrator may not disclose information collected through aerial surveillance conducted under subsection (b)(2). (2) Applicability of FOIA Section 552 of title 5, United States Code, shall not apply to any information collected through aerial surveillance conducted under subsection (b)(2). (3) Right to petition The owner or operator of land surveilled under this section has the right to petition for copies of the information collected through such surveillance. (f) Destruction of information The Administrator shall destroy information collected through aerial surveillance conducted under subsection (b)(2) not later than 30 days after collection, unless the information is pertinent to an active investigation or prosecution by the Administrator. (g) Rule of construction Nothing in this Act expands the power of the Administrator to inspect, monitor, or conduct surveillance of agricultural land pursuant to the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq.) or any other Federal law. 9. Regulations relating to the taking of double-crested cormorants (a) Force and effect (1) In general Subject to subsection (b), sections 21.47 and 21.48 of title 50, Code of Federal Regulations (as in effect on January 1, 2016), shall have the force and effect of law. (2) Public notice The Secretary of the Interior (referred to in this section as the Secretary ), acting through the Director of the United States Fish and Wildlife Service (referred to in this section as the Director ), shall notify the public of the authority provided by paragraph (1) in a manner determined to be appropriate by the Secretary. (b) Sunset The authority provided by subsection (a)(1) shall terminate on the effective date of a regulation promulgated by the Director after the date of enactment of this Act to control depredation of double-crested cormorant populations. (c) Rule of construction Nothing in this section limits the authority of the Director to promulgate regulations relating to the taking of double-crested cormorants under any other law. 10. Applicability of spill prevention, control, and countermeasure rule Section 1049 of the Water Resources Reform and Development Act of 2014 ( 33 U.S.C. 1361 note; 128 Stat. 1257; 130 Stat. 1902) is amended— (1) in subsection (b)— (A) in paragraph (1)(B), by striking 20,000 and inserting 42,000 ; (B) in paragraph (2), by striking subparagraph (A) and inserting the following: (A) an aggregate aboveground storage capacity greater than 10,000 gallons but less than 42,000 gallons; and ; (C) in paragraph (3)— (i) by striking subparagraph (A) and inserting the following: (A) with an aggregate aboveground storage capacity of less than or equal to 10,000 gallons; and ; and (ii) in subparagraph (B), by striking ; and and inserting a period; and (D) by striking paragraph (4); (2) in subsection (c)(2)(A)— (A) in clause (i), by striking 1,000 and inserting 1,320 ; and (B) in clause (ii), by striking 2,500 and inserting 3,000 ; and (3) by striking subsection (d).