[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2663 Introduced in Senate (IS)]

<DOC>






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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Agriculture Creates Real Employment 
Act'' or the ``ACRE Act''.

SEC. 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.

SEC. 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.''.

SEC. 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.

SEC. 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.''.

SEC. 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.

SEC. 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).

SEC. 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.

SEC. 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.

SEC. 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).
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