[Senate Hearing 115-267]
[From the U.S. Government Publishing Office]
S. Hrg. 115-267
HEARING TO EXAMINE S.2663, THE AGRICULTURE CREATES REAL EMPLOYMENT
(ACRE) ACT
=======================================================================
HEARING
before the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
MARCH 14, 2018
__________
Printed for the use of the Committee on Environment and Public Works
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
_________
U.S. GOVERNMENT PUBLISHING OFFICE
30-329 PDF WASHINGTON : 2018
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
JOHN BARRASSO, Wyoming, Chairman
JAMES M. INHOFE, Oklahoma THOMAS R. CARPER, Delaware
SHELLEY MOORE CAPITO, West Virginia BENJAMIN L. CARDIN, Maryland
JOHN BOOZMAN, Arkansas BERNARD SANDERS, Vermont
ROGER WICKER, Mississippi SHELDON WHITEHOUSE, Rhode Island
DEB FISCHER, Nebraska JEFF MERKLEY, Oregon
JERRY MORAN, Kansas KIRSTEN GILLIBRAND, New York
MIKE ROUNDS, South Dakota CORY A. BOOKER, New Jersey
JONI ERNST, Iowa EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska TAMMY DUCKWORTH, Illinois
RICHARD SHELBY, Alabama CHRIS VAN HOLLEN, Maryland
Richard M. Russell, Majority Staff Director
Gabrielle Batkin, Minority Staff Director
C O N T E N T S
----------
Page
MARCH 14, 2018
OPENING STATEMENTS
Barrasso, Hon. John, U.S. Senator from the State of Wyoming...... 1
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware.. 3
WITNESSES
Miyamoto, Doug, Director, Wyoming Department of Agriculture...... 5
Prepared statement........................................... 8
Response to an additional question from Senator Carper....... 11
Responses to additional questions from Senator Merkley....... 12
Yates, Ryan, Director of Congressional Relations, American Farm
Bureau Federation.............................................. 13
Prepared statement........................................... 15
Responses to additional questions from Senator Merkley....... 24
Lyons, Jim, Senior Fellow, Center for American Progress,
Lecturer, Yale School of Forestry and Environmental Studies.... 28
Prepared statement........................................... 31
ADDITIONAL MATERIAL
Congressional Research Service; Fair Agricultural Reporting
Method Act/FARM (S.2421)....................................... 145
Congressional Research Service; Supplemental Analysis: Fair
Agricultural Reporting Method Act/FARM (S.2421)................ 156
Statement of National Wildlife Federation........................ 160
HEARING TO EXAMINE S.2663, THE AGRICULTURE CREATES REAL EMPLOYMENT
(ACRE) ACT
----------
WEDNESDAY, MARCH 14, 2018
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 10:10 a.m. in
room 406, Dirksen Senate Office Building, Hon. John Barrasso
(chairman of the committee) presiding.
Present: Senators Barrasso, Carper, Inhofe, Capito,
Boozman, Wicker, Fischer, Rounds, Ernst, Cardin, Booker, and
Van Hollen.
OPENING STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM THE STATE OF WYOMING
Senator Barrasso. Good morning. I call this hearing to
order.
Today we will hold a legislative hearing on the Agriculture
Creates Real Employment, or the ACRE, Act. This is bipartisan
draft legislation to help farmers, ranchers, and the
communities they depend on get their relief from burdensome
Federal regulations and policies.
The Senate Environment and Public Works Committee has a
unique role to play in the policies that impact agriculture.
Just last month this Committee held a hearing on this important
issue and we heard testimony from real farmers and ranchers
representing a diverse group of States.
The message from our witnesses' testimony was clear: the
negative impact of many Federal environmental regulations and
policies on American farming and ranching communities is real
and it needs to be addressed. The testimony we heard was not
about the value of environmental regulations, but about how
some Federal regulations can be inflexible, antiquated,
duplicative, and ultimately harmful to American agriculture, a
critical part of our Nation's economy.
The draft bill we are discussing today is designed to
provide relief for hardworking people that put a shovel in the
ground every day, working to feed this Country. I believe the
ACRE Act provides that relief.
My bill addresses many issues that are critical to ranchers
and farmers. These include protecting farmers' and ranchers'
privacy; eliminating duplicative environmental permitting for
the use of pesticides; addressing unneeded and
counterproductive reporting requirements under the
Comprehensive Environmental Response, Compensation, and
Liability Act, the CERCLA Act; and doing away with the unfair
punishment of farmers who are wrongly accused of baiting
migratory game birds simply because they are following normal
farming practices.
The ACRE Act also supports an efficient permitting process
at the U.S. Fish and Wildlife Service for predator control. The
change will allow ranchers and farmers to better protect their
livestock from predator attacks.
Most of these provisions were introduced as individual
bills and have bipartisan support. One such bill introduced by
Senator Fischer, the Fair Agriculture Reporting Method Act, or
the FARM Act, has 12 Democratic cosponsors, including our
Ranking Member. This bill addresses new animal waste emission
reporting requirements.
Over the past several months, farmers and ranchers
struggled to comply with ambiguous agency directives following
an April 2017 decision in the D.C. Circuit Court. The ruling
meant up to 100,000 farmers and ranchers, who have never been
required to report under these laws, would suddenly be required
to comply. Even though they wanted to comply with the ruling,
the process and implications of compliance were unclear.
Because both CERCLA and EPCRA were not written with the intent
of regulating these farm and ranches, the requirement to report
emissions from animal waste came without context and largely
without agency guidance.
Another bill is Senator Crapo's S. 340, the Sensible
Environmental Protection Act, which was introduced along with
Democrat Senators Donnelly, Heitkamp, and McCaskill. This bill
amends the Federal Insecticide, Fungicide, and Rodenticide Act,
or FIFRA, and the Clean Water Act to eliminate a duplicative
permitting requirement.
The bill prohibits the Environmental Protection Agency from
requiring a permit under the National Pollutant Discharge
Elimination System for a pesticide application from a point
source as long as the application is approved under FIFRA. In
addition, the ACRE Act also has legislation sponsored by
Independent Senator Angus King, S. 1206, which will ensure fair
treatment and licensing requirements for the export of certain
echinoderms.
Let us remember that farmers and ranchers are the original
stewards; they understand that landscapes and watershed need to
be healthy to support native plants, wildlife, crops, and
livestock. They are living proof that interacting with nature
can be done in an environmentally sound way, often leaving the
resources in better condition than they were found.
Washington policies do not always translate well in rural
America. As I mentioned at our last agriculture hearing, in
February, when I was home in Wyoming, I often hear about just
how out of touch the environmental regulations have become. It
has gotten to the point where ranchers and farmers are burdened
by the thought that they will be fined thousands of dollars for
simply putting a shovel in the ground.
I believe we should prioritize updating and revising
policies that, while well-intentioned, were never designed to
micromanage agriculture production. This is what the ACRE Act
does.
Now, before we move to our witnesses today, I would like to
turn to Ranking Member Carper for his remarks.
OPENING STATEMENT OF HON. THOMAS R. CARPER,
U.S. SENATOR FROM THE STATE OF DELAWARE
Senator Carper. Thanks, Mr. Chairman. I have had a chance
to personally welcome, as you have, each of our witnesses.
We are happy that you have joined us today. Welcome, with
your presence and your testimony, your willingness to respond
to some questions. I am going to have to leave here today at
11, so I will not be here for the entire hearing, but I very
much want to make the next hour count, so thank you all.
Mr. Chairman, thanks a lot for bringing us in to cover this
subject that is on our minds. It is something we have talked
about a fair amount lately in another hearing actually right
here in this room.
I think we all can agree on the title of the legislation
that we are considering here today. There is no doubt that
agriculture creates real employment; it does in our State, in
Delaware, and I know it does in States that are represented in
this Committee and the Senate.
As I have said in some of our previous hearings here,
agriculture, believe it or not, is a critical economic driver
in Delaware. Over 40 percent of our land is dedicated to
farming and our State's agricultural sector employs some 30,000
Delawareans, while contributing nearly $8 billion a year to the
State's economy. That is a lot of money for a little State.
As my colleagues have heard me say a time or two before, I
believe that our Country's environmental laws and regulations
have, by and large, served our entire Nation, including our
farmers, well. It is possible to have clean air and clean
water. It is possible to protect our land and conserve species
and still have good jobs, plenty of jobs. It takes some work to
find the right solutions to achieve that balance, but the hard
work almost always pays off.
One such example is the FARM Act, which is included as one
of the sections in the ACRE Act. Its prime sponsor is here with
us today, the Senator from Nebraska.
But, Mr. Chairman, as you know, we worked hard to strike a
careful compromise on that legislation. In my opinion, the FARM
Act is an example of where we can do a good job balancing the
needs of our farmers, while preserving access to information
that can help protect public health.
Unfortunately, I do not believe that the ACRE Act in its
entirety represents the same thoughtful approach. The
legislation recognizes and attempts to address concerns raised
by some of our farmers. As drafted, though, I don't believe
that it adequately balances those interests with the interests
of other natural resource-dependent industries.
For example, Delaware has a booming wildlife tourism
industry. I know other States represented here do too. But
visitors come from all over the world to observe migratory
birds in Delaware, including the federally listed threatened
Red Knot. A 2016 U.S. Fish and Wildlife Service study found
that more than 45 million people, 45 million people enjoyed
bird watching that year, enjoying other wildlife watchers and
contributing more than $75 billion to the U.S. economy. The
Endangered Species Act and Migratory Bird Treaty Act help
ensure the long-term viability of that industry, too. In its
current form, I fear that the ACRE Act could have harmful
implications for these important laws.
Having said that, there may be ways to address farmers'
concerns without unintended consequences. For example, our
Federal agencies can work with stakeholders to explore
administrative options that may resolve endangered species and
migratory bird concerns. Or we in this Committee may be able to
reach narrower, truly bipartisan compromises in some of the
items contained in the ACRE Act. I hope so.
Further, there are stewardship success stories that this
Committee and the Congress should examine that are examples of
ways to improve collaboration and conservation outcomes in
agriculture. For example, just last year, in the town of
Blades, just south of Seaford, the world's first nylon plant
was built some almost 80 years ago.
But in the town of Blades, located in the southwestern part
of our State, Perdue Farms worked with several communities to
expand its multimillion dollar nutrient recycling investment on
Delmarva. This investment and new composting operation
increased the company's capacity to handle surplus poultry
litter and allowed other agricultural byproducts to be
recycled.
This actually started in my last term as Governor, Mr.
Chairman. We took some State money, added to that a lot of
money from Perdue, and created this industry in the
southwestern part of our State, so we are not just going to
spread all those nutrients on farm fields, but actually turn
some of them into--I think it was the Scott lawn care people,
the Scott people, they sell the stuff all over the Country as
an organic fertilizer. But we have taken some important other
steps in Delaware to help farmers become even better stewards
of the land.
I have mentioned before, and I will do it again here
briefly today, again, when I served as Governor, the last year
or two, we addressed high levels of agricultural runoff by
forming the Nutrient Management Commission, farmer-led. The
Commission brought together farmers and members of the
environmental community to devise commonsense solutions, and
that is basically three things: have farmers check the nutrient
levels in their field, the ability of fields to absorb
nutrients, phosphorous and nitrogen in particular; each of the
farmers are going to be using the nutrients to develop a plan
that is appropriate for their farms at non-polluting levels;
and then provide the training necessary to implement the plans.
Initiatives like those led by the Nutrient Management
Commission and smart investments like those by Perdue in the
State of Delaware are just two examples that this Committee
can, and I think should, look at as we strive to protect our
air, our water, while also creating economic opportunity in the
agricultural industry.
So, we look forward to hearing from all of our colleagues,
our witnesses today to advance current and future legislation
that supports our farmers and protects our environment. I look
forward to hearing from all of you. Thank you again so much for
joining us today. Welcome.
Senator Barrasso. Well, thank you very much, Senator
Carper.
We are now going to turn to the witnesses, but I would like
to first introduce Mr. Doug Miyamoto, who is joining us today
and the first one to testify. He has served as the Director of
the Wyoming Department of Agriculture since 2015. In his role
as Director, Doug deals with issues that we will discuss here
today on a daily basis: environmental reporting for Wyoming
agriculture producers, predator management, liaising with
Federal agencies to coordinate environmental resource issues,
and many other issues that arise when getting our agriculture
products to the end consumer.
Doug previously served as the Executive Director of the
Wyoming Livestock Board, the Deputy Director of the Wyoming
Department of Agriculture, and in several other positions at
the Natural Resource Conservation Service, Wyoming State
Engineer's Office, and the University of Wyoming.
Doug is uniquely qualified to speak to today's issues, both
from his professional experience and because he received the
highest quality education from the University of Wyoming.
Senator Carper. Shameless.
[Laughter.]
Senator Carper. Shameless pandering. What is their mascot?
What is their mascot?
Senator Barrasso. My wife has three degrees from the
University of Wyoming.
[Laughter.]
Senator Barrasso. I am going to get her down here and
debate you, Mr. Ranking Member, and you don't stand a chance.
Senator Carper. I would lose.
Senator Barrasso. He is uniquely qualified because of his
incredible education, background, and degree. He studied range
management for his undergraduate degree and later earned a
Masters in rangeland ecology. He serves Wyoming well by
bringing his holistic approach to his leadership at the Wyoming
Department of Agriculture, and I am pleased that he would join
us here today.
In addition to Doug, we also have Mr. Ryan Yates, who is
the Director of congressional Relations for the American Farm
Bureau Federation, and Mr. Jim Lyons, who is a Senior Fellow at
the Center for American Progress.
So, I would like to welcome all three of you today. We
would like to remind you that your full written testimony will
be made part of the official hearing record, and please keep
your statements to 5 minutes so that we may have time for
questions.
Doug, please proceed.
STATEMENT OF DOUG MIYAMOTO, DIRECTOR, WYOMING DEPARTMENT OF
AGRICULTURE
Mr. Miyamoto. Chairman Barrasso, thank you for that kind
introduction. Ranking Member Carper, members of the Committee,
thank you so much for the privilege of speaking to you today
about the ACRE Act.
Again, Doug Miyamoto. I am the Director of the Wyoming
Department of Agriculture, and I also currently serve as the
Chairman of the Natural Resources and Environment Committee of
the National Association of State Departments of Agriculture.
I am here today to talk about my support for the ACRE Act,
and I will highlight a few of the reasons why in my testimony
today. I am not an expert on all of the issues that are
addressed by the ACRE Act, but there is a common theme of
ensuring that the ag industry is subject to the correct and
intended regulations for normal agricultural activities. I will
emphasize individual sections of the ACRE Act on which the
Wyoming Department of Agriculture and NASDA have concentrated
on in recent years, as those are the ones with which I am most
familiar.
Importantly, and I am sure you are all aware, Section 3 of
the ACRE Act provides the exemptions from notice requirements
and penalties revolving around CERCLA. I don't want to go into
too much detail on this because I am sure you all have heard
about the issues surrounding CERCLA, so I would just like to
point out some specifics regarding the impact of CERCLA and its
affiliated reporting requirements to Wyoming.
Exempting farmers and ranchers not engaged in confined
animal feeding operations is, in my opinion, simply the right
thing to do. CERCLA was never intended to regulate the
livestock industry, but, rather, to ensure cleanup of the
Nation's most contaminated Superfund sites to protect the
public.
I have been asked many questions from Wyoming's producers
about how they are to estimate emissions and how they are
supposed to report those emissions in a non-confined range
cattle setting. Unconfined range cattle represents the majority
of the operations in the State of Wyoming, and by one suggested
measure this continuing estimating reporting requirement would
apply to all livestock operations involving more than 206 head
of cattle.
Obviously, this standard would incorporate the majority of
the commercial livestock operations in Wyoming, and there is
simply no way for the majority of Wyoming's cattle producers to
know if their cattle are emitting more than 100 pounds of
ammonia or hydrogen sulfide in any given day. Frankly, I don't
know what to tell producers when they call me for technical
assistance on how to comply with CERCLA at this point.
The exemptions proposed in this Act will provide producers
some protection from liability, and it also will address
Federal agencies of jurisdiction, the EPA and the Coast Guard,
and eliminate them wasting their limited resources on
administering a program that does nothing to protect public
health and also does not ensure that the Nation's priority
Superfund sites are addressed appropriately. Including
livestock operations in the reporting and penalty provisions of
CERCLA is counterproductive both for producers and for the
agencies, and illustrates why this language has 29 bipartisan
cosponsors.
Specific to Wyoming, another section I really wanted to
highlight was Section 11 of the ACRE Act, and this simply
reaffirms the authorities of the Fish and Wildlife Service to
issue appropriate permits to address livestock depredation. As
an example, I want to discuss eagle management and its
challenges in Wyoming.
Wyoming is home to the largest population of Golden and
Bald Eagles in the lower 48 States. Wyoming is also known as a
destination for wildlife viewing, and we view eagles as a
valuable component of a balanced ecosystem. We do not want to
decimate eagle populations.
But in the instance of newborn livestock losses to eagle
depredation, typically, additional newborn loss has already
occurred before Fish and Wildlife Service can even pursue the
first step of an eagle take permit, which is eagle harassment.
It is such a slow process that is a rarity for the next step,
which would be live capture and removal, to ever even be
pursued. Livestock producers have more frequently had to resort
to much more surveillance of their young stock; they have had
to move herds completely to entirely new locations; and they
have had to build and purchase lambing sheds, calving sheds to
conduct operations indoors to protect from these depredations.
We have seen a lot of sheep business leave entirely due to
eagle depredation. In 2017 alone, Wyoming experienced 1,000
sheep and lamb losses to eagle depredation, according to the
National Agricultural Statistic Service. This doesn't even
mention the impact of ravens on sage grouse, which can be
addressed also by this provision within the Act.
In conclusion, I would say, as a representative of
government, I would assert to you that we have an obligation to
ensure that our regulations are clear, consistent, and
effective. I have made it a goal of the Wyoming Department of
Agriculture to support commerce in the ag arena, even given the
regulatory nature of our Department. One of my highest
priorities is to lead the Department of Ag in a manner that
emphasizes education before regulation and provides regulatory
certainty for our producers.
Again, I sincerely appreciate specifically the work of my
Senator and Chairman Barrasso, Ranking Member Carper, and
Senators Fischer and Donnelly on your specific work on CERCLA.
That is very much appreciated. And I also appreciate the
opportunity to present to the Committee today, and please know
I am available for anything that you may need as a Committee.
Thank you.
[The prepared statement of Mr. Miyamoto follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. Well, thank you very much for your very
thoughtful and thorough testimony. Appreciate it.
Mr. Yates.
STATEMENT OF RYAN YATES, DIRECTOR OF CONGRESSIONAL RELATIONS,
AMERICAN FARM BUREAU FEDERATION
Mr. Yates. Chairman Barrasso, Ranking Member Carper, and
members of the Committee, thank you for calling this important
hearing on the ACRE Act and inviting me to testify on behalf of
the American Farm Bureau Federation. Farm Bureau commends you
for your leadership in advancing legislation which addresses a
range of environmental policy issues which impose real costs
and substantive burdens to our members. I will highlight our
comments and support section by section.
Farmers and ranchers support the solution provided in
Section 3 of the ACRE Act, which will protect their businesses
from financial strain and burden of unnecessary reporting
requirements. CERCLA was enacted to provide for cleanup of the
worst industrial chemical and toxic waste dumps and spills.
CERCLA has two primary purposes: to give the Federal
Government tools necessary for prompt response to problems
resulting from hazardous waste disposal, and to hold polluters
financially responsible for cleanup. Unfortunately, in April
2017, the D.C. Circuit Court of Appeals issued a decision
vacating EPA's 2008 exemption for agricultural operations. I
would like to point out the public safety concerns caused by
these reporting requirements.
Up to nearly 200,000 farms may have to report to the
National Response Center, overwhelming that system and drawing
resources from actual emergencies. Additionally, there are
national security implications. By requiring reporting, we will
be creating a roadmap for nearly our entire animal agriculture
production system. Obviously, this creates an opportunity for
mischief for those wanting to harm our very safe and abundant
food supply. Last, requiring individual farmers and ranchers to
disclose personal home addresses along with their farm
information creates an opportunity for activists to harass
farmers and ranchers where they live and work.
Section 5 would protect farmers from Federal penalties
levied under the Migratory Bird Treaty Act if they are
following best practices provided by their State Cooperative
Extension Service. AFBF supports the Hunter and Farmer
Protection Act, which would allow each State's Cooperative
Extension Service to clarify the difference between what
constitutes baiting and normal agricultural practices.
Section 6 of the ACRE Act is a proposal that has long
enjoyed bipartisan support, and we strongly support its
adoption. It simply states that when a pesticide is lawfully
applied under FIFRA, it is not also regulated under the Clean
Water Act. It has been the longstanding view of the law until
it was thrown into question by decisions in the Ninth Circuit.
We believe it is a sensible approach that reflects the will of
Congress and prevents overregulation.
AFBF supports Section 7, the Farmer Identity Protection
Act, which would prohibit the EPA or an EPA contractor from
disclosing information collected under Clean Water Act
requirements from livestock operations. AFBF opposes the
disclosure of personal and/or business information by an
organization, business, or government agency about individual
farmers and ranchers. The release of any information should
only be allowed under specific written or electronic
authorization of the individual or the private business entity.
Section 8 would prohibit the EPA from enforcement of the
Clean Water Act for agricultural operations through aerial
surveillance without the written expressed consent of the
owner-operator of the land. Farm Bureau supports the use of
unmanned aircraft systems, or UAS, as another tool for farmers
and ranchers to use in managing their crops and livestock, and
making important business decisions. While Farm Bureau supports
this technology and the potential opportunities it offers for
farmers and ranchers, we are also concerned about the data
collected from UAS and the privacy and security of the data. It
is critical that data collected via UAS remain under the
ownership and control of the farmer and is not available to
government agencies or others without the farmer's permission.
Section 9 would provide immediate relief to the aquaculture
industry by reinstating the force and effect of the U.S. Fish
and Wildlife Services' statutory depredation order for the
double-crested cormorant with respect to freshwater aquaculture
facilities. In response to a legal challenge against the
Service, the U.S. District Court for the District of Columbia
remanded the 2014 Aquaculture Depredation Order for the
cormorant. The cormorant is a large water bird that feeds
mainly on fish. As you can imagine, commercial fish ponds that
are stocked at high densities make them highly susceptible to
bird predation particularly by the cormorant. Predator control
is vital to the success of American aquaculture.
Thank you, Mr. Chairman. We look forward to continuing to
work with the Committee in securing enactment of this
critically important legislation. I would be happy to answer
any questions that you or the Committee may have. Thank you.
[The prepared statement of Mr. Yates follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. Thank you so very much, Mr. Yates. We
appreciate your testimony.
Now, Mr. Lyons.
STATEMENT OF JIM LYONS, SENIOR FELLOW, CENTER FOR AMERICAN
PROGRESS, LECTURER, YALE SCHOOL OF FORESTRY AND ENVIRONMENTAL
STUDIES
Mr. Lyons. Mr. Chairman, members of the Committee, I am Jim
Lyons. I am currently a Senior Fellow at the Center for
American Progress and a lecturer at the Yale School of Forestry
and Environmental Studies. Previously, I have served as Deputy
Assistant Secretary for Land and Minerals Management in the
Department of the Interior under President Obama and as USDA
Under Secretary for Natural Resources and Environment under
President Clinton. And from 1985 to 1993 I was a member of the
House Committee on Agriculture staff, where I had the
opportunity to help lead the effort to shape both the
Conservation and Forestry Titles of the 1990 Farm Bill.
I bring up the 1990 Farm Bill because I believe it was a
groundbreaking effort that expanded the scope of our
conservation toolkit. Since then, through successive Farm Bills
I believe we have demonstrated the important relationship
between farmers, ranchers, and Federal conservation agencies
and the power of their partnership.
Voluntary conservation made possible by the technical and
financial assistance by Federal conservation agencies and their
State and private partners have maintained and restored the
health of millions of acres of farm and ranchlands, and
conserved fragile soils, wetlands, water quality, and wildlife
habitat.
We continue to depend on the Nation's farmers and ranchers
not only for our food and fiber, but also for the care of our
lands and natural resources. As Conservationist Aldo Leopold
described in 1939, ``It is the American farmer who must weave
the greater part of the rug on which America stands.'' Nearly
fourscore years later, Leopold's comments remain very valid.
American farmers and ranchers remain conservation leaders,
and we have an obligation to the American people to ensure that
we protect and promote the public-private partnership that has
helped protect our capacity to produce safe and affordable food
and fiber, and conserve America's soil, water, air, and
wildlife resources.
The ACRE Act is an interesting amalgam of bills. I will do
my best to address them today, but I implore you to work
together in a thoughtful, bipartisan approach to build on the
foundation of prior Farm Bills to improve efforts to weave the
rug of conservation of which Leopold has spoken.
Given the limited time, I will comment on just a few
sections of the bill.
On Section 3, the exemption from certain notice
requirements and penalties under CERCLA, I understand that this
would simply codify an exemption from these requirements that
had been implemented since 2008. Minimizing the burden on
farmers for collecting and reporting necessary data makes
sense, and I strongly support that objective.
I hunt and have hunted waterfowl on Maryland's eastern
shore, so I understand the intent of Section 5 to further
clarify the definition of normal agricultural activities under
the Migratory Bird Treaty Act. But I would suggest, Mr.
Chairman, that it might be better to address this definitional
issue administratively, rather than setting a one-size-fits-all
standard and statute. This should be done in collaboration with
the NRCS, the U.S. Fish and Wildlife Service, and relevant
State Fish and Wildlife agencies.
With regard to Section 6, the Congress has made several
attempts in recent years to find common ground in avoiding
duplication, providing clarity, and reducing the burden
associated with data collection and reporting under FIFRA and
the Clean Water Act. Efficiency in data collection reporting is
important, provided the intent of both FIFRA and the Clean
Water Act are met.
In places like Maryland, where I currently reside, this can
be particularly problematic given the potential for pesticide
applications to inadvertently impact waterways and the
Chesapeake Bay. Simply having a pesticide registered under
FIFRA, in my opinion, does not obviate the need for ensuring
the Clean Water Act requirements are met where the potential
for impacting water resources occurs.
While I understand the purpose of Section 7, the Farmer
Identity Protection Act, and the concern of livestock
producers, I think it is important the data related to these
activities be collected in a manner that permits research and
analysis to benefit producers, help reduce operator costs,
improve the efficiency of livestock operations, as well as
protect public safety and the environment.
Regarding Section 8, aerial photography and assessments by
their very nature are intended to cover large landscapes,
making it difficult, if not nearly impossible, to gather
permission from all those owners and operators who may be in
the area that is the focus of these aerial surveys. Aerial
surveys are an important tool for wildlife managers and
research scientists whose studies can improve management
practices that can benefit farmers and ranchers, as well as
wildlife and the environment.
Finally, reaffirming the respective authorities of the U.S.
Fish and Wildlife Service and APHIS to work together to address
animal damage issues can do no harm, but I would suggest that a
change in the law is not warranted. The issue raised by Mr.
Miyamoto with regard to eagles and sheep losses is a very
serious concern, I am well aware of that, but it seems to be
more of an issue of providing adequate resources to the Fish
and Wildlife Service to do its job, rather than reaffirming in
statute that APHIS and the Service do their jobs.
Thank you, Chairman Barrasso and members of the Committee.
Appreciate the opportunity to share my thoughts today.
I would close by emphasizing one thing, and that is data
and information are important management tools that can improve
farm and ranch operations, inform new and better approaches for
achieving conservation goals, and ensure that taxpayer dollars
are used efficiently and effectively. That is, data are an
asset, not just a bludgeon. If we can focus on opportunities to
work together, agriculture, fish and wildlife, public health
and safety, and our environment will benefit.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Lyons follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. Well, thank you very much for your
testimony. Thank you all.
We will now have a round of 5 minutes of questions, and I
will defer my time to Senator Inhofe.
Senator Inhofe. Well, thank you, Mr. Chairman.
I was listening, Mr. Miyamoto, to your opening statement. I
chaired this Committee for a number of years, and the one
thing, particularly during the last Administration, as a
general rule, the Democrats want more regulation, and they want
that regulation to come from Washington, not from locally or
from the States. I remember going over the WOTUS rule. That was
at a time when, and I think, Mr. Yates, you will remember this,
that was the No. 1 concern, I think, for the Farm Bureau at one
time. This was the big issue.
Now, my State is an arid State, and we can just envision if
the regulation that was put forth by the Obama administration
had become a reality. It wouldn't be long until our panhandle
would be a wetland, and we were fully aware of that. There
would be another army of bureaucrats crawling all over our
farms and ranches in Oklahoma.
So, anyway, that is the overall thing. And, by the way,
there was one really good program, it was called the
Partnership Program that came from Fish and Wildlife, and this
happened actually in the last Administration, where they
actually came out, in my case, before confirmation of the Fish
and Wildlife Director, I said I want you to make two trips out
to Oklahoma and talk about the partnership and the people who
are the farmers and the ranchers on the ground; and they came
back with the conclusion that they are just as concerned or
more concerned than the bureaucracy here in Washington is on
what they want to do with the land, and they were very
impressed by the fact--and it just stands to reason, but a lot
of bureaucrats don't understand this, if you own a piece of
property, you want it to be clean, you want it to conform. This
is to your financial and to your benefit.
Mr. Miyamoto, when I look at the list of regulations, I
come to the conclusion that there is the idea in Washington
that you have to have someone here looking out after your
property because you are not going to do a good job yourself.
You, yourself, acknowledge that some of these regulations
targeted in the bill were of no environmental benefit, so it is
unclear as to why would the opposition be opposition to them,
other than loss of control. Unfortunately, it is our State
partners that are then forced to comply with Federal mandates
coming with no financial support, so it comes back to unfunded
mandates.
So, I ask you the question can you speak to the burdens
that you and your fellow State agencies face when Washington or
the courts hand down unfunded mandates?
Mr. Miyamoto. Mr. Chairman, Senator, thank you for the
question. The issue of unfunded mandates and delegated
authority for State Departments of Agriculture is something
that we have to think about frequently. We do carry out FIFRA
regulations as a State Department of Agriculture in Wyoming, so
this issue of pesticide regulation really does fall on the
Department of Ag.
There are other examples of many other programs that we
have delegated authority from the Federal Government to
implement regulations in the State. As an example, within the
Wyoming Department of Agriculture, we also undertake food
safety measures from FDA and we have Federal Meat Inspection
Act under the Food Safety Inspection Service, and we have to
make sure that we can do a good job of carrying out our
regulatory obligations.
So, when it comes to budgeting and unfunded mandates, we
want to do a good job to carry out these Federal statutes in
our State and uphold our end of the bargain, but it does become
a challenge from time to time when there are so many of them.
If they become duplicative, then it becomes impossible.
Senator Inhofe. And I really think that this bill addresses
a long list of them, and I have taken the time, as other
cosponsors have, of going over and analyzing each one.
I don't want to run out of time here. Mr. Yates, last week,
in Senator Rounds' subcommittee hearing on the FARM Act, a
colleague on the other side accused the Trump EPA of failing to
provide farmers and ranchers with the guidance they need to
comply with the recent court decisions that now requires ag
industries to report to the EPA and the Coast Guard emissions
from animal waste.
Your testimony states that there is no scientific consensus
on how to measure these emissions, and it is worth noting that
the Obama EPA believed that this information wasn't needed and
defended the Bush era policy. So, since you believe there is
not the scientific consensus, do you think the EPA would be
able to develop the guidance that is really needed here?
Mr. Yates. Well, ultimately, that is something that
livestock operators are going to need from the EPA and, to
date, they have not been able to receive appropriate guidance
that would give them the tools that they need to effectively
measure those emissions on their livestock operation. I know
there are a couple models that have been referenced. Texas A&M,
I believe, and I believe there is another university that has
developed a model.
Again, the application of those models to a particular
livestock operation is inaccurate, at best, it is a guess, so I
think if we are going to be requiring livestock operators to
report these emissions, they need to have the tools and the
guidance to be able to effectively measure what it is that they
are being required to report.
Senator Inhofe. I think it is interesting that back during
the Obama administration that is pretty much what their feeling
was, too, at that time.
Thank you, Mr. Chairman.
Senator Barrasso. Thank you, Senator Inhofe.
Senator Carper.
Senator Carper. Before I ask a couple questions of our
witnesses, I just want to note, if I could, Mr. Chairman and
colleagues, for the record that during our hearing this
morning, students across our Country are walking out of the
classrooms for a brief while to mourn the loss of the victims
of the Parkland shooting and to demand action to prevent gun
violence in the future. I just want to acknowledge their
efforts and to say that I share in solidarity with them.
First question I have for our witnesses, again, we
appreciate you being here. Thank you very much for your
testimony and for your willingness to stay on and answer some
questions, and maybe even some questions for the record.
As you all know, and I think Mr. Lyons may have stated
this, there is a longstanding tradition of bipartisan
collaboration on Farm Bills and a lot of other agriculture
legislation. I hope that this Committee and I hope that this
Congress can uphold that tradition this year.
With that said, based on what you just heard from your
colleagues, what are the areas where you see agreement among
the three of you? What are the areas where you see agreement
among the three of you, please.
Mr. Lyons, do you want to lead us off?
Mr. Lyons. I think, first of all, Senator Carper, we agree
that reducing the burden on agriculture producers of data
collection and providing information is important, but we do
need data and information, so gathering that in the most
efficient and effective way possible is important.
I agree with the concern about harassment and the desire to
make sure that the information is managed properly to help
achieve its intended purpose; to help improve programs, to help
improve the operations of producers, to help reduce costs both
for them and to the taxpayer.
And I would like to think that we all agree that we need to
meet not only the objectives of benefiting producers, but we
also have an obligation as a community to protect public health
and safety and the environment, and that is certainly an
important part of why these statutes exist.
Senator Carper. All right, thank you.
Mr. Yates and Mr. Miyamoto, do you agree with anything he
said?
Mr. Yates. For the record?
Senator Carper. Yes.
Mr. Yates. For the record, Senator Carper, I am pleased to
agree with Jim on the issues that he brought up. I think
farmers and ranchers across the Country are the best stewards
of our land and I think we want to work collectively within the
regulatory fabric that we have to live and work in to produce
the best results not only for farms and ranches, but for the
environment. So, again, I would agree with Jim's comments on
this.
Senator Carper. Good. Would you like to add any other
thoughts of your own about what are some other areas you might
see for agreement?
Mr. Yates. Well, I think, across the board, farmers and
ranchers, when we go out to the field, I know President Duvall
was in a couple weeks ago at your least hearing on
environmental regulation.
Senator Carper. Zippy Duvall.
Mr. Yates. Zippy Duvall, yes, sir. He appreciated the
commentary that you and he had at that hearing. But the No. 1
thing that we hear from our farmers is concerns over red tape
and regulations, in addition to a number of other issues that
keep farmers up at night, and I think this bill represents a
good start at looking at identifying duplications of
regulations and identifying opportunities to streamline those
to ensure that the regulations are commonsense and they make
the most sense for the folks that have to live and work under
the guidance of those rules and regulations.
Senator Carper. I quote my parents almost every day of my
life, something that they said, words of wisdom that they
imparted to my sister and me when we were kids growing up. My
dad was famous for saying, ``Just use some common sense'' to my
sister and me, and he said it a lot. He did not say it so
kindly.
All right, Mr. Miyamoto. Just come back to what Jim has
said and Ryan has said. Anything that you agree with that they
have said and anything you would like to add, other possible
areas of agreement? Go ahead.
Mr. Miyamoto. Thank you, Senator. From what I heard today,
there is a lot more agreement than there is disagreement. If
there was one thing that I could certainly identify
specifically, it would be the CERCLA piece and addressing that.
So you are aware, I think that the aspects that are approached
in this bill that addressed duplicative regulations and then
sometimes regulations aimed in the wrong direction is a good
start for us and would help me do a better job at home to not
only regulate the agricultural community, but also to advocate
for it. Because I kind of have that dual role and take it very
seriously.
Senator Carper. All right, thank you.
I have about 15 seconds left. I am going to have some
questions for the record. I wish I could give them in person,
but we will submit those for the record. Again, we appreciate
very much your presence today and your contributions. Thank
you.
Senator Barrasso. Thank you, Senator Carper.
Senator Ernst.
Senator Ernst. Thank you, Mr. Chair.
Thank you to our witnesses for being here today.
Mr. Miyamoto, I will start with you, Director. FIFRA
established an effective and comprehensive regulatory----
Senator Carper. Could I interrupt?
Senator Ernst. Oh, yes.
Senator Carper. I apologize. I am going to go speak on the
floor on the banking bill right now. I apologize.
But could I just ask unanimous consent to submit for the
record--I have a unanimous consent request that somewhere in
this pile right here, and I would ask permission to submit for
the record.
And I apologize for interrupting you.
Senator Barrasso. Without objection. And had you attended
the University of Wyoming, you wouldn't have----
[Laughter.]
Senator Carper. Let the record show I was wait-listed
there.
[Laughter.]
Senator Carper. As were our sons. They had to go to MIT and
William & Mary.
[Laughter.]
Senator Carper. Thank you. I apologize.
Senator Ernst. No, you're fine, Senator Carper.
OK, Director, we will start over again. As you know, FIFRA
established an effective and comprehensive regulatory web to
provide pesticide-related environmental and public health
protections, and this regulatory system is pretty darn rigorous
in examining environmental data and health exposure assessments
for pesticide products.
Because this process specifically examines a product's
potential impact on water, additional permitting requirements
under the Clean Water Act are duplicative. We have talked a
little bit about duplication of effort, and this will
significantly increase the cost for State permitting
authorities and pesticide users.
So, we have already discussed the duplication of effort,
the unfunded mandates, but if you could, could you please
describe--let's go a little bit further into the weeds--the
challenges that State Departments of Agriculture face when
dealing with duplicative regulatory requirements, whether it is
the costs associated with the paperwork shuffle, the timelines?
Could you delve into that so that we know exactly what our
State Departments of Ag go through?
Mr. Miyamoto. Mr. Chairman, Senator, thank you for the
question. It is something that we struggle with. Initially,
when the NPDES requirements for pesticide applications came to
light, which was eight or 9 years ago now, we had to do a
series of workshops around the State with all of our certified
pesticide applicators to inform them of this process, and it
was quite an undertaking.
It was a good collaboration; we used our State Department
of Environmental Quality, EPA Region 8 was also represented.
But there was a lot of training that went into how our
applicators would become compliant with NPDES permitting
requirements that were never aimed in that direction.
So, initially there was a whole bunch of education, and
even now, as people get recertified for pesticide application,
we have training elements that are part of our training program
that informs them of all of the steps that they have to take to
get their NPDES permits and what the liabilities associated
with those permits are.
I think you quoted or you stated very eloquently that FIFRA
handles the regulation of pesticides. We do that as a State
Department of Agriculture, and, really, both NPDES and our
regulation of pesticide applications boil down to the approved
label by EPA. And if you follow that label that is attached to
that product, you will be in compliance. Other than that, you
are just shuffling paper.
Senator Ernst. Very good. And that is a concern, too, the
duplication of effort. The costs associated with that, what is
a ballpark figure, to be qualified, and might be to the State
Department as well?
Mr. Miyamoto. Mr. Chairman, Senator, if it is OK with you,
I will have to research that a little bit. I am unsure of what
DEQ spends on their NPDES program specific to pesticides. I
know for us, the training and certification program that we, as
a State, put into our program, not Federal funds, but State
funds, is about half a million dollars.
Senator Ernst. OK. And, bottom line, it boiled down to, you
said, if they just follow the instructions on the label,
correct?
Mr. Miyamoto. Correct.
Senator Ernst. Correct. OK.
And Director and Mr. Yates, both of your testimoneys made
pretty compelling cases as to why the CERCLA reporting
requirement is unnecessary and why Congress never intended for
emergency air emissions to apply to day-to-day practices on ag
operations. Do you think the documentation and process under
CERCLA for reporting routine low-level animal manure emissions
on a farm to the Coast Guard's National Response Center is the
best use of Federal, State, and local tax dollars?
Mr. Miyamoto. Mr. Chairman, Senator, again, thank you for
the question. When I hear the term Superfund, that brings a lot
to mind, and the expense associated with cleanup of Superfund
undoubtedly is expensive. I have no idea what those expenses
might be.
But when it comes to CERCLA, I am quite certain that both
EPA and the Coast Guard have better things to do with limited
resources to address those sites that really are hazardous and
a threat to human health. I don't even know how to begin to
tell producers how to estimate emissions from an individual
head of livestock, so not only do I think that it is not, the
regulation, aimed in the right direction; I don't have anything
to tell my producers about how to accurately comply. I can't
ethically give them a formula that I think that they could
defend.
Senator Ernst. Thank you.
Mr. Yates.
Mr. Yates. Certainly, I would be in agreement. I think EPA
has recognized that low-level continuous emissions of ammonia
and hydrogen sulfide from livestock are not releases that
Congress intended to be regulated under CERCLA; and I think
when you start looking at the numbers, the numbers that we have
received over the last 8 years, the annual phone calls to the
National Response Center have averaged about 28,000 reports a
year for the last 8 years.
Looking at an additional 200,000 reports from farmers and
ranchers, I don't think it is a great use of taxpayer dollars.
Frankly, I think the NRC really should be focused on its true
mission, and not receiving reports from farmers and ranchers
trying to be in compliance with CERCLA.
Senator Ernst. Thank you very much. I struggle to
understand how we would measure some of those emissions from
the rancher and farmer standpoint, but also what exactly is the
Coast Guard going to do when they respond? I don't think that
is spelled out anywhere.
Anyway, thank you, Mr. Chairman.
Senator Barrasso. Thank you very much, Senator Ernst.
Senator Cardin.
Senator Cardin. Thank you, Mr. Chairman.
Mr. Lyons, welcome. It is always nice to have a Marylander
here, so I am glad to see you.
Mr. Lyons. Thank you, Senator.
Senator Cardin. I appreciate your testimony. And I just
really, first, want to underscore the point that you made about
farmers and the importance to our environment that farmers
understand, that has certainly been true in Maryland,
recognizing that a clean environment is in their best interest
and part of their responsibility, as they see it, is to leave
the land in better shape for the next generation, which
includes the environment and clean water, et cetera, so I thank
you for making that point.
I want to sort of delve into the pesticide issue and
insecticides, and the impact on the Chesapeake Bay, impact on
clean water. We have made a real commitment to clean up the
Chesapeake Bay, and all stakeholders are part of the process,
including our farmers. They practice the best practices in
order to minimize the concerns of pollution getting into the
Bay. We very much appreciate all the work that they do.
I want to talk about the FIFRA statute and its regulations
as to whether it is duplicative of what EPA would be doing in
regards to protecting our environment from insecticides, and
get your view as to whether in fact this is duplicative or
whether there is a different concern in regards to water
quality.
Mr. Lyons. Well, thank you, Senator, for the opportunity to
address that, and I want to thank you for your leadership
particularly in helping to protect the Chesapeake Bay, in spite
of efforts to cut funding for the important programs there, so
really appreciate that.
I actually don't think that the duplication that is
presented here between the Clean Water Act and FIFRA is
completely accurate. FIFRA is designed to regulate the use and
application of pesticides in general, and set standards, and
certainly it sets standards for applications in relation to
aqueous situations, in addition to land applications. But,
really, the Clean Water Act serves a different purpose; it is
really designed to protect our Nation's water quality by
minimizing discharges of pesticides and other pollutants.
So, I think, particularly in a place like the Chesapeake
Bay, where we have a high water table and much of the landscape
is vulnerable to stormwater runoff and other impacts, that the
provisions of the Clean Water Act and the requirements that are
associated with it provide an added element of assurance that
pesticides are not going to get into the waterways and have
adverse impacts on those water bodies.
Senator Cardin. I thank you for that because the FIFRA
statute deals with labeling, deals with other issues and the
Clean Water Act deals with the quality of water in our Nation,
so they have different standards to judge the regulatory
activities. And we know that farming activities is the largest
single source of pollutants entering the Bay. It is not the
largest increase that comes from runoff, but the largest single
source is from farming, so, therefore, it is critically
important we try to minimize the best that we can, and the
Clean Water Act certainly has been important in doing that.
Would you agree with that?
Mr. Lyons. Yes, I certainly do, Senator. I think it played
an important role and I think we are seeing the benefits of
that. I might mention, if I could actually put in the record, a
recent Washington Post opinion by the editorial board, March
7th, that says why the Chesapeake Bay is the best in the world.
It talks to the improvements that have been made over many
years of effort to improving water quality and the health of
the Chesapeake Bay, and I think it is a reflection of the fact
that proper application of tools. I see the Clean Water Act as
a tool for addressing water quality concerns as well as other
standards, is important.
Senator Barrasso. Without objection.
[The referenced information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Cardin. Always appreciate the opportunity of
including the Chesapeake Bay in our record.
Let me ask you one last question, which sometimes the
reason for trying to get an exemption from the Clean Water Act
deals with emergency situations where you have urgent issues
that need to be dealt with quickly because of the health
concerns that are brought about by some insects or invasions,
things like that.
Do you see the Clean Water Act regulations and the current
applications of the law inconsistent with emergency response?
Mr. Lyons. No, absolutely not, Senator. In fact, EPA
developed a program to deal with emergency situations. I mean,
zika would be a great example of that. Under those
circumstances, an applicator can perform its pest control
activities without having to wait for EPA approval for the
application, so there is no inconsistency there.
Senator Cardin. Thank you.
Appreciate it, Mr. Chairman.
Senator Barrasso. Senator Fischer.
Senator Fischer. Thank you, Mr. Chairman. I thank you for
calling this hearing today and I appreciate all of the
witnesses coming to share your time and your expertise with us
on these important issues.
This bill encompasses a variety of priorities that I and
many members of this Committee have labored over for, in some
cases, many years, and I am glad to see the Committee
recognizes that these commonsense solutions do need to move
forward.
The ACRE Act represents relief for ag producers from
burdensome regulations, relief from regulations that do not
offer more environmental protection and relief from regulations
that have become duplicative and unnecessarily tie the hands of
our producers.
I am especially pleased to see included in this legislation
policies that I have championed in this Committee for many
years, and this includes addressing what I believe is a
duplicative permitting of pesticides under FIFRA and the Clean
Water Act. I would remind my colleagues that this is an issue I
agreed with the Obama administration's EPA on, and it continues
to be a concern in farm country.
Additionally, the ACRE Act also includes my legislation to
provide regulatory relief for farmers and ranchers with above-
ground, on-farm fuel storage. Intended for major oil
refineries, the Spill Prevention, Control, and Countermeasure,
or the SPCC, Rule would affect the amount of fuel producers can
store on their land. And I certainly appreciate that the last
WRDA bill included flexibility for producers, but more does
need to be done.
Finally, the ACRE Act includes the Fair Agricultural
Reporting Method, or the FARM Act, which would provide greater
certainty for ag producers by eliminating the burdensome
reporting requirements for animal waste emissions under CERCLA.
As of this morning, there are 37 cosponsors, Democrats and
Republicans, on this stand-alone legislation. Our farm and
ranch communities are in tough economic climates, and this bill
before us does cut through the cumbersome red tape and enables
our ag producers to continue to support their families and also
to feed this hungry world.
Director, it is my understanding that reporting animal
waste emissions under CERCLA provides no environmental benefit.
Do you agree with that?
Mr. Miyamoto. Mr. Chairman, Senator, I do. We have operated
regulatory frameworks for agriculture for quite some time now.
The Clean Air Act is available to address air quality concerns.
CERCLA was never a part of this until very recently, and the
simple act of reporting does nothing to address any
environmental concern.
Senator Fischer. Thank you. Can you please explain to the
Committee the current regulatory framework livestock producers
must comply under, and specifically under the bill before us,
the ACRE Act and, subsequently, the FARM Act, do certain
providers still have to comply with EPCRA reporting
requirements?
Mr. Miyamoto. Mr. Chairman, Senator, they do. In confined
animal feeding operations, they would still have a duty to
report under EPCRA and comply with the regulatory requirements
there.
Senator Fischer. So, just to be clear, producers and our
large animal feeding operations, they still must comply with
EPCRA, the Clean Water Act, and State regulations?
Mr. Miyamoto. Mr. Chairman, Senator, that is correct.
Senator Fischer. Thank you.
Director, in your testimony, you discuss the duplicative
permitting process of pesticides under FIFRA and the Clean
Water Act, and this process creates unnecessary resource
burdens and challenges for pesticides, registrants, and users,
including the agriculture community. This is why I have
cosponsored legislation that would clarify the intent of the
law and eliminate the Clean Water Act permit requirement. Can
you please speak to the impact on farmers that are subjected to
acquire a Clean Water Act permit?
Mr. Miyamoto. Mr. Chairman, Senator, again, thank you for
the question. I can speak to that to a degree. We have been
operating our pesticide application regulatory program in
conjunction with NPDES since 2009 or 2010, and it has just
required a whole bunch more training. In that entire amount of
time, I do not believe that our State partners at the
Department of Environmental Quality have regulated pesticide
applicators under NPDES permit requirements, meaning I don't
think they have taken regulatory action against any of those
applicators.
We, on the other hand, have taken regulatory action against
applicators that are not following the appropriate label. So,
in essence, what it has become for us is just an exercise that
we go through; make sure that you have your certified pesticide
applicator's license, make sure that you are in line with
either your major or minor NPDES pesticide general permit, make
sure you have everything in order, and then go out and do your
work. But when it comes to the regulation, FIFRA and the
Department of Ag is where that resides.
Senator Fischer. Thank you, sir.
Thank you, Mr. Chairman.
Senator Barrasso. Thank you, Senator Fischer.
I am going to ask unanimous consent to enter for the record
a number of letters of support and written testimony from
groups who support various elements of the ACRE Act, including
the National Agriculture Aviation Association, Wyoming Stock
Growers Association, Agriculture Retailers Association,
American Mosquito Control Association, National Pest Management
Association, which includes more than 7,000 member companies.
Without objection, they are admitted to the record.
[The referenced information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. Mr. Miyamoto, across the Country, farmers
and ranchers acknowledge some of their yield of crops, fish,
livestock are going to be lost to predators of many varieties,
and you made comment about that in your testimony. Farmer and
ranchers depend on management tools like permits to eliminate
predators to keep their livestock safe and to prevent excessive
losses.
In Wyoming, ranchers lose newborn calves, lambs to ravens,
to eagles. Indiana residents grapple with damage to
transportation infrastructure from beavers. In Delaware, the
State Wildlife Service helps to prevent damage to coastal salt
marsh habitat from geese, other migratory waterfowl.
Could you just talk a little bit about the important role
that permits play in predator management and the need for the
agency to process permit applications efficiently?
Mr. Miyamoto. Mr. Chairman, thank you. I think that what
permits provide in this whole discussion of depredation and
damage caused by it is balance. The permit process allows the
regulating agencies to keep track of what is going on out in
the landscape. It requires our producers to go in and seek
permission for a certain action, to remove or relocate
depredating what they would consider nuisance species. But the
permitting process makes sure that is all accounted for and so
that we can manage to an objective.
Senator Barrasso. I want to ask Mr. Yates if you have any
additional thoughts on that and what you have seen in terms of
getting the permits to deal with these issues.
Mr. Yates. Certainly, Senator. Thank you for the question.
Controlling wildlife damage is obviously a critical factor in
maintaining the success of American agriculture, and permits
are important. One example that we cite is the issue of the
double-crested cormorant. Many of our commercial fish ponds are
stocked at very high densities, from 2,000 to, say, 60,000
catfish per acre, and for bait fish it is 50,000 to almost
200,000 bait fish per acre.
When it comes to the depredation issues with the cormorant,
I know a 2014 estimate for the Mississippi Delta Region show
that 18 million to 200 million fingerlings per winter are lost
to bird depredation. A 1996 USDA survey shows that bird
depredation were responsible for 37 percent of catfish losses
in the aquaculture industry.
So, certainly, the issue of permitting for depredation for
the cormorants is a critical issue that I know our folks in the
aquaculture industry are looking for Congress to provide
immediate input and oversight on this important issue.
Senator Barrasso. Mr. Miyamoto, we talked about trying to
give relief for farmers and ranchers in weed and pest districts
and others who face duplicative permitting requirements. That
has been part of the questioning we have had from both sides of
the aisle here today.
These permitting requirements are imposed, specifically in
weed and pest districts, by the National Pollutant Discharge
Elimination System. It requires one permit under the Federal
Insecticide, Fungicide and Rodenticide Act, the FIFRA Act, but
another under the Clean Water Act to apply a pesticide, even if
the pesticide is already approved by the one Act. It just seems
that our effort is supported by aviation groups, agriculture
producers, public officials like sanitary districts, mosquito
control groups.
And I have a letter that I am going to introduce from the
Coalition to talk about that specific thing.
Without objection, that will be submitted for the record.
[The referenced information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. The Department of Agriculture in Wyoming
has the responsibility for predator and pest control, the Weed
and Pest Council, and human health priorities. You oversee
this. Can you talk about the importance of pest and invasive
species control, especially in a State with so much public
land?
Mr. Miyamoto. Mr. Chairman, I think that Wyoming has a big
job when it comes to controlling invasive species and for
predator control, both. We have so many ties to Endangered
Species Act and other considerations that there is a lot to do.
When it comes to our predator districts and our weed and pest
districts out there in those local communities, they have more
job than they have time. Anything that we can do to streamline
the process, as long as we are not harming anything on the
environmental side of the equation, I think we should pursue
that.
This example that you bring up of FIFRA as opposed to the
Clean Water Act, NPDES permitting for pesticide applicators, in
our experience at home, simply isn't necessary. We do it
because we have to, but it doesn't change the application on
the ground.
Senator Barrasso. Mr. Yates, Section 7 and 8 of the ACRE
Act deal with the issue of farmer safety and privacy. Could you
please elaborate on why issues such as the disclosure of
sensitive information of the location of certain farming
operations or the aerial surveillance of farms by the Federal
Government, why these are important and relevant issues to the
agriculture community?
Mr. Yates. Thanks, Senator. I think, like most Americans,
farmers and ranchers are very sensitive about their privacy,
sensitive and concerned about information about their
operation. Many farmers, it is not just the mailing address of
their business; many farmers and ranchers live in the location
of their business. Having that information get out or having
aggregate data about farmers in a region, a county, a State, is
dangerous and concerning for farmers and ranchers. So, I think
when we are looking at data, obviously, many of us have
discussed the issues of how we can use data to be more
effective in the work that we do.
I think we should be mindful of that data and how that data
can be used and who can access that data; and I think it is
important in terms of oversight for this Committee to look at
protecting the use of that date and ensuring that, if data is
being requested from farmers and ranchers, that it is being
done with their permission.
Senator Barrasso. One last question, Mr. Yates, before I
turn to Senator Boozman. The president of your organization, as
we talked about, Mr. Zippy Duvall, was here and stated in his
written testimony to our Committee in February, he said, ``Farm
income is reduced about 50 percent compared to 5 years ago.''
And he went on to say, ``But I assure you that regulatory costs
have not gone down.''
So, in your opinion, will the provisions in the ACRE Act
help reduce some of this regulatory burden on farmers and
ranchers, and improve their income, while at the same time
protect the environment?
Mr. Yates. The short answer to that is yes, Senator, I do
believe that, and I think the bottom line is, as Congress and
as Federal agencies look at rules and regulations, I think they
should be looked at through a lens of is this effective, is
this the best way to conduct business. When we are looking at
the issue of FIFRA and the Clean Water Act, the bottom line is,
is additional duplicative regulatory requirements going to
provide for increased environmental protections on the ground?
If the answer to that is no, then I think the ACRE Act does a
great job in providing for streamlining and ensuring that
regulatory burdens on farmers and ranchers are minimized and
are effective in providing for strong environmental compliance
at the local level.
Senator Barrasso. Thank you.
Senator Boozman.
Senator Boozman. Thank you, Mr. Chairman. I apologize for
being late, late. I had a Veterans Affairs Committee hearing
and then a Homeland Security, so I have good excuses. The
problem is right now is there is just a lot going on up here,
lots of stuff that is important, but positive stuff, so thank
you all for being here and we do appreciate your testimony.
Mr. Miyamoto, the FIFRA established an effective and
comprehensive regulatory web to provide pesticide-related
environmental and public health protection. It is rigorous; it
examines the environmental data, health exposure assessments
for pesticide products. This process specifically examines the
product's potential impact on water. Additional permit
requirements under the Clean Water Act are duplicative and will
entail significant costs for State permitting authorities and
pesticide users.
Could you please highlight some of the challenges that your
Department faces when regulating some of the regulatory
requirements?
Mr. Miyamoto. Mr. Chairman, Senator, thank you for the
question. Our experience in Wyoming has been that we have co-
regulated under FIFRA and the Clean Water Act for eight or 9
years now. In the beginning there was a whole bunch of
education that we had to do with our certified pesticide
applicators to make sure that they understood that they needed
to hold not only their certified applicating license, but they
also needed to hold an NPDES permit.
I would argue that NPDES permits were designed for a
completely different scenario, point source discharges, end-of-
pipe type regulations, so it was difficult for us to come up
with all of the right information that should be included in
that application in order for them to get that permit.
Today, it is part of our standard operating and we do it,
but I don't think that it gives us a corresponding increase in
environmental benefit. It is one of those things that we do
because we have to.
Senator Boozman. Very good. Thank you very much. Also, many
feel that the Comprehensive Environmental Response,
Compensation, and Liability Act, CERCLA, reporting is
unnecessary and was never intended to regulate agriculture. Can
you talk about some of the environmentally based regulations
that agriculture producers have to comply with and comment on
CERCLA?
Mr. Miyamoto. Mr. Chairman, Senator, specifically, I think
the aim behind CERCLA, or, you know, at least one of the
considerations of CERCLA was to look at emissions; and, for
agriculture, that would be probably most relevant to confined
animal feeding operations. And when it comes to confined animal
feeding operations, the major regulatory law that is in place
to guard against environmental damage from confining animals
and feeding them would be the Clean Water Act.
I have worked extensively in trying to remediate those
impacts, basically, relocating corrals and feeding areas to
where we can write comprehensive nutrient management plans that
allay a lot of the concern of concentrating all of these
pollutants in one area and allowing them either to volatilize
into the air or to get into the water. So I think there is a
framework in place and Mr. Lyon mentioned NRCS, and they are a
good partner of ours and they help us with implementing
comprehensive nutrient management plans for all of these areas
that address these concerns.
Senator Boozman. Very good. Thank you.
Mr. Yates, a criticism of the EPA under the previous
Administration was the Agency's disconnect with rural America.
Many hardworking Americans in rural States feel that they
didn't and still really feel like their voice is marginalized.
Time and again I heard from my constituents who described a
``gotcha'' attitude from Federal agencies. Instead of working
with stakeholders and industry to develop and implement rules
and regulations, the Federal Government would go it alone,
without fully understanding how the rules would affect
hardworking Americans.
Can you explain the importance of the Federal Government to
work hand-in-hand with the stakeholders as we develop rules and
regulations? And then, also, do you believe that the current
Administration has put an emphasis in cooperative federalism?
Mr. Yates. Senator Boozman, thank you for the question. I
would suggest that it is critical, be it in our western States
that have a large abundance of Federal lands, that proper
coordination and consultation with Federal land management
agencies is vital to ensuring that the proper decisions are
made that make the most sense for the land. It certainly goes
without saying that coordination between States, Federal
Government, and end-users is ultimately going to provide for
the best possible result moving forward in terms of complying
with regulations.
Ultimately, I think the more interaction the Federal
agencies have with folks at the local level, the better results
you are going to have. Certainly, there have been criticisms
from one Administration to another about do we have the best
relationship, are they engaging with local stakeholders.
I would suggest that with this Administration,
Administrator Pruitt, we have had a fantastic working
relationship. I know they have a lot of work to do and I would
like to certainly report that relationship is a positive one
and we continue to strive to identify more opportunities to
work hand-in-hand with EPA to identify commonsense solutions to
the issues that are facing American farmers and ranchers.
Senator Boozman. Good. Thank you, Mr. Yates.
Senator Barrasso. Thank you, Senator Boozman.
Senator Capito.
Senator Capito. Thank you, Mr. Chairman.
Thank all of you. I appreciate you coming in today. I think
we share with all the witnesses, and really all of us on this
Committee and in the Senate, that we realize how important our
Nation's farmers and ranchers are, and we don't want to
overburden with regulations. But we also want to ensure, as
Americans, that they have the right to privacy like so many of
us do.
When I was over in the House I introduced a bill called the
Farmer's Privacy Act. This was in reaction to a situation that
occurred in my State of West Virginia, where a poultry farmer
was surveilled by the EPA--we are not talking about giant
operations here, we are talking two or three houses--by the EPA
and then fined accordingly, or investigated. It just struck me
that the EPA, we found out later, had rented a small aircraft
to surveil the small farms in the eastern portion of our
States.
I raised the point, even though it is difficult to get from
point A to point B sometimes because of the mountains that we
have, that we were violating that farmer's rights, and it just
felt too intrusive to me. So, part of what is included in this
bill is that privacy provisions.
I am wondering if you, in Wyoming, have had any of these
same kind of circumstances where you have had aerial
surveillance without permission or if this is an issue in other
parts of the Country. So, if you want to start, Mr. Miyamoto.
Mr. Miyamoto. Mr. Chairman, Senator, thank you for the
question. We have experienced similar type of interest from
mostly our special interest groups that have targeted
individual ranchers and then would like to undermine their
efforts to conduct successful business.
As a regulatory agency myself, I can tell you that we have
been able to successfully regulate farms and ranchers in
Wyoming without aerially surveilling them. We take that
obligation fairly seriously, but I think it can be done, and
probably should be done, face-to-face.
Senator Capito. Right. Right.
Does anybody else have any comments on that? I don't know
if you heard anything at the Farm Bureau, Mr. Yates.
Mr. Yates. Senator, thank you. And thank you for your work
on this important legislation. Again, as I mentioned in my
testimony, the use of UAS in precision agriculture is a great
tool. Many of our farmers are employing drones and drone
technology.
Senator Capito. Right.
Mr. Yates. But, again, I think the broader concern for our
members is the use of those tools in providing for surveillance
of farms and farm operations without the consent of the farmer
or the landowner; and I think that ultimately, if those tools
are going to be used, we need to make sure that we ensure that
private property rights and privacy are taken into account and
that farmers provide their permission for the use of that
technology by a Federal agency or an outside organization.
Senator Capito. And that is the substance of my bill, and I
want to thank the Chairman for including that in there.
I want to ask another question. We had two things happen,
two visits I had most recently, one from a beef farmer in our
State in conjunction with Trout Unlimited. And I think
sometimes the misconception that our farmers want to be in
opposition of environmental stewardship is just a misplaced
concept, but they don't have the resources or the expertise to
really move forward with what would be the best methods to go
forward.
In this case, Trout Unlimited had partnered with the beef
farmer to give him the resources to be able to clean up the
stream and now it is a major trout stream in our area. So the
landowner, obviously, has the benefit of that, along with
others who want to recreate there. So it has a mutual benefit.
I would just ask, the partnerships that are developed, we
also had the Wildlife Resources Foundation were just in our
State, wildlife folks were just in, same kind of partnerships
that are occurring. Are you finding that is what is happening
around in Wyoming, that the private sector and the recreational
industry that revolves around using our land and fisheries is
the same sort? Because, obviously, in Wyoming tourism is very
important as well.
Mr. Miyamoto. Mr. Chairman, Senator, strangely enough,
years ago I spent a good deal of the early part of my career
doing nothing but watershed planning on a collaborative and
community-based standpoint, and I think we developed over two
dozen different non-point-source watershed-based plans to
address 303(d) listed in paired segments, and we did it exactly
in the manner that you are talking about.
What I learned through that experience is that local,
voluntary, and incentive-based approaches for water quality
improvement tend to work much, much better than any regulatory
scheme that we could put in place to address those issues.
Senator Capito. Thank you.
And just a final comment, because I am out of time, but I
know there is a portion of this bill that deals with predatory
species. I would just mention that I hope--I am not sure that
it does because I haven't asked the question yet. But we have a
problem with coyotes in our area and our livestock, and I would
hope that resources would be available to help our agricultural
entities deal with this predator that is pretty sneaky and
pretty tough to get. Thank you very much.
Senator Barrasso. Well, I want to thank all of the members
for being here. I appreciate the testimony of the three
witnesses.
Members may submit written questions. I know that Senator
Carper has suggested he will be submitting some written
questions, so I ask that you return those responses quickly.
The hearing record will remain open for 2 weeks.
I again want to thank you all for your testimony on this
important issue.
The hearing is adjourned.
[Whereupon, at 11:29 a.m. the committee was adjourned.]
[Additional material submitted for the record follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]