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Public Statements

Water Resources Development Act of 2013 - Continued

Floor Speech

Location: Washington, DC


Mrs. FISCHER. Madam President, I rise today to speak on S. 601, the Water Resources Development Act, WRDA. I would like to focus on Senate Amendment No. 801, a bipartisan provision to provide regulatory relief to our country's farmers and ranchers. Senate Amendment No. 801 is based on S. 496, the Farmers Undertake Environmental Stewardship Act, FUELS Act.

The FUELS Act was introduced by Senator Mark Pryor and has 10 cosponsors from both sides of the aisle including Senators John Boozman, Saxby Chambliss, Thad Cochran, John Cornyn, Heidi Heitkamp, James Inhofe, Johnny Isakson, Mike Johanns, Mary Landrieu, and myself. It was referred to the Senate Environment & Public Works Committee, of which I am a member.

I filed the FUELS Act as an amendment to WRDA when it was considered earlier this year by the Senate Environment & Public Works Committee. The amendment was not considered at that time.

The House version of the FUELS Act, H.R. 311, was introduced by Congressman Rick Crawford and has 69 cosponsors. In the 112th Congress, the FUELS Act, H.R. 3158, was reported by the House Transportation and Infrastructure Committee and passed the House by voice vote. The House Committee Report for H.R. 3158 (Report 112-643) provides background and discusses the need for legislation:

The EPA mandated Oil Spill Prevention, Control and Countermeasures program, or SPCC, requires that oil storage facilities with a capacity of over 1,320 gallons must make infrastructure improvements to reduce the possibility of oil spills. The regulations require farmers to construct a containment facility, like a dike or a basin, which must retain 110 percent of the fuel in the container. These mandated infrastructure improvements--along with the necessary inspection and certification by a specially licensed Professional Engineer will cost many farmers tens of thousands of dollars. Sometimes compliance costs reach higher than $60,000.

The SPCC program dates back to 1973, shortly after the Clean Water Act was signed into law. In the last decade, it has been rigorously applied to agriculture lands, and has been amended, delayed, and extended dozens of times. The Obama administration updated the rule in 2009 to expand regulation under the SPCC program--applying it to nearly all farms, and lifting a 2006 rule that suspended compliance requirements for small farms with oil storage of 10,000 gallons or less. It applied to crop oil, vegetable oil, animal fat, and even milk. Further revisions came during April of 2011 when the EPA decided to exempt milk.

The 2009 rule--minus regulating milk spills was scheduled to go into effect in November 2011. A few weeks before the November deadline, EPA issued a statement saying they would not begin enforcement until May of 2013. While enforcement has been delayed until 2013, the underlying regulation has not been fixed.

The FUELS Act requires that EPA revise the SPCC regulations to be reflective of a producer's spill risk and financial resources. The exemption level would be adjusted upward from 1,320 gallons of oil storage to an amount that would protect small farms: 10,000 gallons. The proposal would also place a greater degree of responsibility on farmers and ranchers to self-certify compliance if their oil storage facilities exceed the exemption level. If the amount exceeds 42,000 gallons, a professional engineer must certify the SPCC plans for a farm. The bill provides another layer of protection by requiring the producer to be able to demonstrate that he or she has no history of oil spills, or to fully comply with the SPCC regulations.

The University of Arkansas, Division of Agriculture did a study that concluded that, for the entire country, H.R. 3158 would save farmers and ranchers up to $3.36 billion.

Agricultural production is an energy-intensive endeavor. Farmers need fuel to power machinery, equipment, and irrigation pumps. Because these operations are in rural areas where regular access to fuel supplies is limited, producers rely upon on-farm fuel storage capacity to provide the supply we need at the times we need it.

My family operates a cattle ranch in the Nebraska Sandhills, so I can tell you firsthand that farmers and ranchers take great pride in the work we do. Our success is the direct result of careful stewardship of our natural resources, which we depend upon for our livelihoods. In agriculture, we know the value of clean water, and we work hard to protect the quality of our streams and aquifers. When it comes to preventing spills from our on-farm fuel storage, farmers already have every incentive to do so--not the least of which is the high cost of diesel and gasoline.

I receive calls and letters every day from Nebraska farmers concerned about the compliance challenges associated with the SPCC rule for on-farm fuel storage, a regulation originally designed for oil refineries. Allow me to share a portion of one such constituent email I recently received on this issue:

We just became aware of this regulation yesterday through an email from Farm Bureau. Since we have a large quantity of on-farm storage capacity, we are not able to self-certify and must hire a professional engineer to create a plan. In order to find a qualified engineer, I first called the EPA, who then told me to call the Region 7 office out of Kansas City, who then told me to call the Nebraska Board of Engineers, who then told me to call the Nebraska Society of Professional Engineers, but the number on their website is no longer in service. When I asked the gentleman from the Nebraska Board of Engineers how much it would cost, he said anywhere from $1500-$4800, depending on the complexity and the engineer's ability to charge more due to high demand due to the approaching deadline. When I asked the gentleman from the EPA Region 7 office why we hadn't heard about it before now, he said the ruling was in place for a long time but they haven't done a good job of getting the word out.

When I shared these frustrations with Gina McCarthy, the nominee for EPA Administrator, she acknowledged at her nomination hearing on April 11, 2013, that ``the agency has bridges to build with the agriculture community.'' The fact is that good stewardship on farms and ranches and environmental improvements are achieved because of producers' application of new technology, best practices, and conservation measures.

Centralized management and mandates are all too often arbitrary, ineffectual, or even counterproductive, lacking the insight of local stakeholders. I ask unanimous consent to have printed in the Record a letter from the stakeholder groups on this issue that illustrates this point, July 25, 2012 letter to the House Committee on Transportation and Infrastructure. This letter from national agriculture groups--including the American Farm Bureau Federation, American Soybean Association, National Association of Wheat Growers, National Cattlemen's Beef Association, National Chicken Council, National Corn Growers Association, National Cotton Council, National Council of Farmer Cooperatives, National Milk Producers Federation, National Turkey Federation, and USA Rice Federation explains the arbitrary nature of the current regulation: ``EPA's unusual threshold number of 1,320 gallons has no basis in science or in normal tank sizes for agriculture.''

WRDA will require EPA, in consultation with the U.S. Department of Agriculture, USDA, to conduct a study to determine the appropriate exemption level ``to not more than 6,000 gallons and not less than 2,500 gallons, based on a significant risk of discharge to water.'' The intent of this provision is to ensure that EPA is not unnecessarily regulating on-farm fuel storage at capacities that do not pose a significant risk to harming water quality. If there is not a significant risk, then regulation is not justified. Compliance costs should not be imposed where there is not a significant risk.

A March 2005 USDA report, Fuel/Oil Storage for Farmers and Cooperatives, states, ``The SPCC rule will have a substantial cost of compliance for the nation's farmers. A total compliance cost of almost $4.5 billion is projected. There is very little evidence of fuel/oil spill by farms.'' The report goes on to state that ``the 1,320 gallons aggregated storage trigger is not supported by the survey data. Compliance at this level not only ignores the physical layouts of farm fuel storage but it also imposes a broad and extreme impact on the majority of farms. Nearly 70 percent of all farms would have to comply, at an average aggregated tank cost of $9,215 and a total compliance cost of $4.5 billion.''

I also ask unanimous consent to have printed in the Record other letters of support for the FUELS Act from agricultural stakeholders, including letters from the American Farm Bureau Federation, USA Rice, National Corn Growers Association, American Soybean Association, National Cotton Council, National Association of Wheat Growers, National Cattlemen's Beef Association, and National Council of Farmer Cooperatives, NCFC.

This quote from the NCFC letter illustrates the points I have made, further explains the need for the legislation, and emphasizes the importance of the EPA-USDA study in ensuring that we are not unnecessarily regulating capacity levels at which no significant risk of oil spills has been demonstrated.

Without question the members of the agricultural sector who grow the nation's food and rely on surface and well water to meet their families' and agricultural operations' needs are highly motivated to ensure that their environmental practices are sound. These producers work daily to ensure a safe environment for their children and the communities in which they live. As such, they can and do take very seriously their responsibility, consistent with the intent and spirit of the SPCC provisions, to properly manage the oil resources used on their operations.

Row crop farms, ranches, livestock operations, farmer cooperatives and other agribusinesses pose low risks for spills and are often seasonal in nature. In fact, data on oil spill on farms, cooperatives, and other agribusinesses is almost nonexistent. The Agency has failed to provide data or even anecdotal evidence of agricultural spills to justify such a resource-intensive rulemaking for America's farmers and ranchers. The risk of such spills from agriculture is extremely low and there is little to no evidence that providing greater flexibility through S. 496 will harm the environment.

The Senate's approval of WRDA will be a huge victory for farmers throughout Nebraska and across America, who should not face unnecessary regulations. The bipartisan provision regarding on-farm fuel storage raises the exemption levels for fuel storage capacity to better reflect the spill risk and financial resources of farms. I appreciate my colleagues' support and cooperation on this issue.


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