[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]

ADRIFT IN NEW REGULATORY BURDENS AND UNCERTAINTY: A REVIEW OF PROPOSED
AND POTENTIAL REGULATIONS ON FAMILY FARMERS

=======================================================================

HEARING

before the

SUBCOMMITTEE ON
AGRICULTURE, ENERGY AND TRADE

OF THE

COMMITTEE ON SMALL BUSINESS
UNITED STATES
HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

__________

HEARING HELD
NOVEMBER 17, 2011

__________

[GRAPHIC] [TIFF OMITTED] TONGRESS.#13

Small Business Committee Document Number 112-045
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HOUSE COMMITTEE ON SMALL BUSINESS

SAM GRAVES, Missouri, Chairman
ROSCOE BARTLETT, Maryland
STEVE CHABOT, Ohio
STEVE KING, Iowa
MIKE COFFMAN, Colorado
MICK MULVANEY, South Carolina
SCOTT TIPTON, Colorado
JEFF LANDRY, Louisiana
JAIME HERRERA BEUTLER, Washington
ALLEN WEST, Florida
RENEE ELLMERS, North Carolina
JOE WALSH, Illinois
LOU BARLETTA, Pennsylvania
RICHARD HANNA, New York
ROBERT SCHILLING, Illinois
NYDIA VELAZQUEZ, New York, Ranking Member
KURT SCHRADER, Oregon
MARK CRITZ, Pennsylvania
JASON ALTMIRE, Pennsylvania
YVETTE CLARKE, New York
JUDY CHU, California
DAVID CICILLINE, Rhode Island
CEDRIC RICHMOND, Louisiana
JANICE HAHN, California
GARY PETERS, Michigan
BILL OWENS, New York
BILL KEATING, Massachusetts

Lori Salley, Staff Director
Paul Sass, Deputy Staff Director
Barry Pineles, Chief Counsel
Michael Day, Minority Staff Director

C O N T E N T S

----------
OPENING STATEMENTS
Page
Tipton, Hon. Scott............................................... 1
Critz, Hon. Mark................................................. 3
WITNESSES
Philip Nelson, President, Illinois Farm Bureau, Bloomington, IL.. 5
Leonard Felix, President, Olathe Spray Service, Inc., Olathe, CO. 6
Ray Vester, Vester Farms, Stuttgart, AR.......................... 8
Carl T. Shaffer, President, Pennsylvania Farm Bureau,
Mifflinville, PA............................................... 10
APPENDIX
Prepared Statements:
Philip Nelson, President, Illinois Farm Bureau, Bloomington,
IL......................................................... 29
Leonard Felix, President, Olathe Spray Service, Inc., Olathe,
CO......................................................... 53
Ray Vester, Vester Farms, Stuttgart, AR...................... 48
Carl T. Shaffer, President, Pennsylvania Farm Bureau,
Mifflinville, PA........................................... 34
Additional Materials for the Record:
CropLife America Statement for the Record.................... 59
EPA--Wetlands Oceans and Watersheds Letter................... 61
NCBA Foglesong Full Testimony................................ 64
NRECA Statement for the Record............................... 130
NSSGA Statement for the Record............................... 134
PM Letter to House SBC Committee on HR 1633.................. 145
United Fresh Produce Association Statement for the Record.... 150

ADRIFT IN NEW REGULATORY BURDENS AND UNCERTAINTY: A REVIEW OF PROPOSED
AND POTENTIAL REGULATIONS ON FAMILY FARMERS

----------

THURSDAY, NOVEMBER 17, 2011

House of Representatives,
Committee on Small Business, Subcommittee on
Agriculture, Energy and Trade,
Washington, DC.
The Committee met, pursuant to call, at 10:00 a.m., in Room
2360, Rayburn House Office Building. Hon. Scott Tipton
(chairman of the subcommittee) presiding.
Present: Representatives Tipton, Bartlett, Barletta,
Schilling, and Critz.
Chairman Tipton. Good morning, everyone. I would like thank
you for joining us. The hearing will now come to order.
I would like to thank all of our witnesses for being here
today and we certainly look forward to your testimony. And I
would like to thank everyone for taking time out of their busy
schedules to join us today. I would like to give a special
welcome to Mr. Leonard Felix, a constituent of mine and aerial
applicator out of Olathe, Colorado. So Mr. Felix, I certainly
welcome you to the Committee and I appreciate you taking the
time to be here.
Mr. Felix. Thank you very much.
Chairman Tipton. Farmers and ranchers and small business
owners today face a sea of onerous new regulations from the
federal government. Although our nation's agricultural
community is expected to continue increasing food production to
feed a growing world population, the current administration
continues to contemplate and propose new regulations that would
place increased burdens on American agriculture and make
production more costly. With our economy struggling to rebound
from the downturn, now is not the time to saddle farmers and
ranchers with higher costs and more onerous regulations that
are driving them out of business.
Today we will examine two EPA regulations threatening
family farms and small businesses, a duplicative pesticide
permit requirement and potentially tougher air quality
standards on farm dust. Both of these issues are of serious
concern to farmers across the nation, including my home state
of Colorado where agriculture business generates $20 billion in
economic activity each year and creates more than 100,000 jobs.
On October 31, 2011, a federal regulation took effect
expanding permit requirements for pesticide applications.
However, federal law already regulates the registration,
labeling, and use of pesticides and provides environmental and
public health protection. This expanded requirement is
duplicative and another costly form of red tape that brings
with it new added environmental protection. The EPA has
estimated the expanded permit requirement will affect some
365,000 pesticide users at a total cost of $50 million per
year, but the real cost to small business could be much
greater.
A second regulatory concern we will examine today that
threatens rural economies is the potential for more stringent
EPA regulations on farm dust. The EPA is currently in the
process of revising the National Ambient Air Quality standards
for particulate matter, including dust. While I am pleased that
the EPA administrator announced that she does not intend to
make current standards for coarse particulate matter more
stringent, the revised rule has not yet been finalized.
Uncertainty lingers. And there is still no agricultural
exemption for farm dust in the EPA's standards. In fact,
producers in Arizona already fall within reach of current dust
standards and have been forced to change their farming
practices as a result. If the agency were to adopt more
stringent standards, many more rural areas would be affected.
As some of the witnesses here today will testify, dust is
an unavoidable result of agricultural production and a fact of
life in rural communities. Planning and harvesting crops and
driving down dirt roads naturally stirs up dust. The only way
to prevent this dust is to halt or reduce agricultural
production and other activities in rural areas. This could be
devastating to local economies and potentially cause food
prices to rise.
Unfortunately, the two federal regulatory concerns
highlighted today are not the only ones that are creating
uncertainty and worrying the agricultural community. They are
part of a wave of onerous, overreaching proposed and potential
regulations that the current administration is considering,
leaving family farmers and ranchers adrift in new regulatory
burdens. With nearly 1 in 10 Americans unemployed and our
country still struggling to crawl out of this economic
downturn, it is imperative that we stop the advancement of
these and other new job-killing government regulations.
Two of my colleagues on the House Agricultural Committee
have introduced legislation to bring regulatory relief and
certainty back to the agricultural sector. Congressman Bob
Gibbs of Ohio has introduced H.R. 872, the Reducing Regulatory
Burdens Act, which would eliminate costly and duplicative
permit requirements for pesticide applications near water.
Congresswoman Kristy Noem of South Dakota has introduced H.R.
1633, the Farm Dust Regulation Prevention Act, which would give
necessary certainty to small business owners in rural America
that farm dust will not be included in EPA standards. Providing
greater regulatory certainty and regulatory relief to our
nation's farmers, ranchers, and rural communities is absolutely
critical. Creating an environment conducive for economic growth
will enable farmers to grow crops and assist with getting our
nation back on the path to future economic prosperity.
Again, I would like to thank our witnesses for
participating, and I look forward to their testimonies.
I now yield to my colleague, Ranking Member Critz, for his
opening statement.
Mr. Critz. Thank you, Mr. Chairman. And thank you,
gentlemen, for being here today.
In Western Pennsylvania where my district is located, we
take great pride in the outdoors. From the scenic Mon River to
the Appalachian Mountains to hunting ruffed grouse in Laurel
Ridge State Park, fresh air and clean water are an important
part of what makes Pennsylvania a great place to live. Ensuring
that all these natural resources remain free of pollutants and
contaminants is a top priority. As we pursue these aims we must
be mindful that environmental regulation can impose significant
costs as well. Too often, however, it has been small firms that
have been impacted the most by EPA's rules. In fact, companies
with less than 20 employees spend more than $4,000 annually,
leaving many hard pressed to make investments in their own
business. Balancing these costs with the benefits of such
regulation is essential. The reality is that we need to protect
the environment without undercutting our nation's main job
creators, small businesses.
Today we will examine several regulations that have the
potential to impose real costs on family farmers and smaller
agricultural businesses. Perhaps most troubling for small
businesses are new pesticide requirements under the Clean Water
Act. Never before in the nearly 40 year history of this Act has
the government required a permit for such use. Making this all
the more problematic is that the Federal Insecticide,
Fungicide, and Rodenticide Act already regulates pesticide.
Such duplication will not safeguard the environment; it will,
however, impose new recordkeeping and surveillance
responsibilities on the more than 300,000 pesticide users.
We will also look at the potential regulation of farm and
agricultural dust. Such dust is a regular byproduct of farming
and has been around as long as farmers have been working the
land. There are limited signs demonstrating that this dust has
any effect on health in rural areas. Even though the EPA
administrator has recently stated that it will not regulate
farm dust, there is still concern that it may do so in the
future. This is not an unfounded concern. The truth is that
opinions can change quickly in Washington, D.C. Given that, I
believe it is correct to be out front on this issue.
Finally, I am looking forward to examining an EPA issue
that could seriously impact farmers in my home state of
Pennsylvania. This matter, called the Chesapeake Bay Total
Maximum Day Load or TMDL requirement is part of a strategy to
protect this watershed. However, it has severe and far-reaching
consequences for local farmers, including those in my home
state. This so-called pollution diet will put farmers out of
business plain and simple. It will effectively remove hundreds
of thousands of acres of productive farmland. In fact, the EPA
itself projects that roughly 20 percent of cropland in the
watershed, or about 600,000 acres, will have to be removed from
production. Requiring states to enforce this on behalf of the
EPA takes this too far. We are all for protecting this great
watershed but not at the cost of putting farms out of business.
We have been down this path many times before this year,
whether it is greenhouse gases, coal combustion waste, or the
issues before us today. The truth is that EPA is no stranger to
overlooking the concerns of small businesses. Instead of
neglecting them, the EPA should be conducting meaningful
outreach to small firms, especially when their regulation
affects family farms and agricultural businesses.
During today's hearing we will be able to listen to the
agricultural community and learn about their views on EPA's
regulations. Ensuring that the concerns of farmers and their
rural businesses are heard is important. I hope that the EPA
will take similar actions to increase its outreach in this
area. Small farms which constitute more than 90 percent of all
farms remain at the center of our country's rural economy. With
direct to consumer sales increasing, small farms are poised to
grow, providing not just high quality food but also jobs. Given
such promise, it is important that the federal government does
not extinguish this potential by imposing unnecessary cost and
duplicative regulatory burdens on them.
I want to thank all of the witnesses in advance for
traveling here today and I look forward to their testimony.
With that I yield back the balance of my time.
Chairman Tipton. Thank you, ranking member.
If Committee members do have an opening statement prepared
I would ask that they submit it for the record. And I would
like to take a moment to be able to explain our timing lights
for you. You will each have five minutes to deliver your
testimony. The light will start out green. When you have one
minute remaining it will turn yellow. Finally, it will turn red
at the end of your five minutes. If you exceed that you will be
ejected. I am kidding. If you would, try to keep it to that
time limit and we will try to be lenient so that you can finish
up. So.

STATEMENTS OF PHILIP NELSON, PRESIDENT, ILLINOIS FARM BUREAU;
LEONARD FELIX, PRESIDENT, OLATHE SPRAY SERVICE, INC.,
TESTIFYING ON BEHALF OF THE NATIONAL AGRICULTURAL AVIATION
ASSOCIATION; RAY VESTER, VESTER FARMS, TESTIFYING ON BEHALF OF
THE USA RICE FEDERATION; CARL T. SHAFFER, PRESIDENT,
PENNSYLVANIA FARM BUREAU

Chairman Tipton. I would like to now yield to Congressman
Schilling to introduce Mr. Nelson.
Mr. Schilling. Thank you, Chairman.
Members of the Committee, it is my pleasure to introduce
Mr. Philip Nelson, who is here to testify on behalf of the
Illinois Farm Bureau. Mr. Nelson has served as president of the
Farm Bureau since December of 2003 and prior to that he served
as a vice president from 1999 to 2003. More importantly, Mr.
Nelson is a fourth generation grain and livestock farmer from
Seneca, Illinois, who basically it is a family-run business
which we like to hear in representing basically farmers from
all over the United States. I appreciate you traveling all the
way here during this very busy time in Illinois, especially
with what is going on with harvest time and all that. So we
look forward to hearing your testimony and welcome, sir.

STATEMENT OF PHILIP NELSON

Mr. Nelson. Well, Mr. Chairman, members of the Committee, I
thank you for the opportunity to share our thoughts and
concerns about the matters that have been outlined.
I am Philip Nelson. I am a fourth generation farmer from
Seneca, a real community about 75 miles south and west of
Chicago. I farm with my wife Carmen, son Kendall, daughter
Rachel, and we raise corn, soybeans, alfalfa, cattle, and hogs.
I have been asked to testify about the National Pollutant
Discharge Elimination System Pesticide General Permit that went
into effect the first of November and to say a few words about
the potential of proposed dust regulations on ag. But before I
do that I would like to point out that we should not even be
here today testifying about the NPDES Pesticide General Permit
because it should have never went into effect.
As you know, the House of Representatives passed H.R. 872
back in March. I appreciate that several of you voted for that
bill. And it is regrettable that this bill needlessly spent
this past spring, summer, and all of the fall languishing in
the Senate, caught in a stranglehold by a couple of senators
upset primarily over the Senate Committee jurisdiction, not
over the substance of the bill. I understand that more than 60
senators would vote today in favor of H.R. 872 if only given a
chance. They should be given that chance.
The Federal Insecticide, Fungicide, Rodenticide Act [FIFRA]
has covered pesticide labeling and application very effectively
since 1947. While the new permit process addresses pesticide
applications in, over, and near waters of the United States, it
duplicates FIFRA. EPA estimates that this new requirement, as
was said before, would affect approximately 365,000 pesticide
applicators nationwide that performed 5.6 million pesticide
applications annually. It will cost $50 million and require
over one million hours per year to implement this.
I do not have to tell you that states like Illinois have
very limited resources just like the federal government.
Spending precious resources for this purpose represents neither
good public policy nor a wise use of taxpayer dollars.
Furthermore, it does not make our food any safer, our water any
cleaner, or provide one iota of environmental benefit above and
beyond what we already achieve on our farms. Frustrated? Yes.
But what really keeps me lying awake at night is the potential
of this for more regulatory creep. It is as if we go to bed one
night with one set of regulations and wake up the next morning
facing a new set. Every moment that we spend fighting and then
working to comply with needless, duplicative regulations takes
away from what we do best, producing food.
In the case of the new NPDES Pesticide General Permit, we
have good reason to believe that pesticide regulation could be
expanded in the future and include other routine applications.
If we look at history of similar rules that began innocuously
and later expand exponentially, then past actions give us cause
for concern about this new permit.
The last issue I raise is one that perhaps is the most
troubling and that is that lawsuits that may occur because of
the Pesticide General Permit. In Illinois, farmers are already
being sued for discharges at livestock facilities that are
still being constructed where on livestock is present. It does
not take much imagination to see how this new permit opens the
door to new legal challenges that are financially and
emotionally draining. This permit does not improve food safety,
does not add any additional environmental protection or benefit
for society, and does nothing to improve my bottom-line.
We feel the current regulation of pesticides by FIFRA has
kept current and is effective to the point we do not need this
entirely new permit program. H.R. 872 remains relevant and
Congress needs to complete what 292 members of the House
supported and likely a strong majority of the Senate would like
to see approved.
I would like to further comment on the proposed farm dust
regulations. As I cut soybeans this fall, I wondered like most
farmers how in the world would EPA even begin to regulate the
dust flying off of my combine. How would the agency prevent
dust from flying when I dump a load of corn or soybeans at the
local grain elevator? Fortunately, administrator Lisa Jackson
acknowledged the impracticality of regulating dust and
announced there will be no dust regulations on agriculture at
this time. But it is truly amazing that a campaign had to be
waged to get EPA to finally act. By President Obama's response
on his bus tour last August to Illinois, and posed a question
by a fellow Illinois farmer, the administrator's words still do
not instill tremendous confidence in farmers' minds.
That is why we support H.R. 1633. I look forward to
answering your questions. Thank you.
Chairman Tipton. Thank you, Mr. Nelson.
Our next witness is Leonard Felix, constituent of mine from
Olathe, Colorado. Mr. Felix grew up in Olathe on his family's
fourth generation farm and currently owns and operates Olathe
Spray Company, a small aerial applicator business in Olathe,
Colorado. And I would probably be remiss if I did not mention
that you help grow some--because of your efforts--some of the
best corn in the United States out of the Olathe area.
Mr. Felix, it is great to have you here today and we look
forward to your testimony. Please continue.

STATEMENT OF LEONARD FELIX

Mr. Felix. Chairman Tipton and Committee members, I am
president of Olathe Spray Service, Inc., Olathe, Colorado. For
43 seasons I have been providing pest control services to
farmers, ranchers, state and federal governments. I am
testifying today on the impacts the EPA's NPDES Pesticide
General Permit on the early application of pesticides.
I have a firsthand understanding of the burdens this permit
will impose on my business, my clients, and other operators. My
business is like 1,600 other small businesses in 46 states that
make up the aerial application industry of the United States.
My business employs 9 full-time persons, including myself and
two sons, and 6 to 10 seasonal workers. Like most aerial
applicators, we represent a large and diverse group of clients.
Uncompahgre Valley Water Users Association has been serving
more than 175,000 acres of Colorado farmland since its
construction in 1906. Water collected near the Continental
Divide delivered down the Gunnison River and then through a
six-mile tunnel into the South Canal to the Uncompahgre River
to the canals and to the rich farmland below. The farmers raise
vegetables, forage and grain crops, orchards, grapes, berries,
and other specialty crops, all depending totally on this supply
of water. The herbicides we apply to the many canals and
ditches control reed canary grass, orchard grass, and noxious
weeds that would otherwise choke them. We also spray about
60,000 acres of cropland each year. We help control mosquitoes
for the Grand Valley pest control district, Orchard City, and
Cedaredge townships, and Gunnison County. We also treat private
forest for control of insects that are destroying the forests
across our west.
We service about 500 customers yearly. Those clients call
anytime asking for treatment as soon as possible. With the
short season in Colorado we have to put in long days, and once
harvest begins, night applications are often required to
protect the harvest crews. This pace requires constant
attention to the maintenance of our aircraft, frequent
calibration of our equipment, and safety checks. We have become
experts on pesticide label requirements and state laws. When
done with a day's flying it all starts over again after we
complete the required recordkeeping.
Now we have a new obligation, satisfying the NPDES permit
requirements by the EPA and states. In 2009 when the Sixth
Circuit Court of Appeals revoked the EPA's 2006 rule exempting
pesticide applications to, over, and near waters of the U.S.,
it overturned the congressional intent and required EPA to
develop NPDES permits requiring hundreds of thousands of
pesticide users to be in compliance.
The EPA's general permit was implemented October 31st of
this year in six states but it also required similar permits in
Colorado and 43 other states. Colorado's Department of Public
Health and Environment administers the Colorado permit on
private property. However, EPA administers a pesticide general
permit on federal and tribal lands. So we will require
compliance of both since we do work on all of the above.
These permits will be a huge challenge. Soon there will be
enforcement penalties for paperwork and performance violations
and activists will be able to challenge operators under the
Clean Water Act citizen suit provision. The cost of defending
against citizen suit can put us out of business. It is all
redundant and unnecessary because FIFRA requires the EPA to
ensure pesticide safety before it is allowed to be registered
for use.
When working as a for-hire contractor for public and
private decision-making clients, EPA has spared applicators
part of the planning and reporting burdens required of the
government agencies and other large entities. However, EPA
considers application participating in the planning of the pest
control to be decision makers. These applicators will have
additional responsibility of planning and reporting their
extensive requirements for documenting maintenance, calibration
equipment, assessing weather conditions, minimizing spray drift
and offsite movement, and site monitoring.
Completing these activities are part and parcel to the
safety and professionalism of our business. Failure to properly
update these records could result in penalties up to $37,500
per incident per day and potential citizen suits. Such records
do not add anything to environmental protections provided by
the label of the registered products. They just add cost, time-
consuming burdens, and open the door for those suits.
So while my sons and I are operating properly applying
pesticides products for our clients, we must now also worry
about taking notes for permanent records later that evening.
Long days and risks are part of being the pilots, but the
burdens risk of the NPDES are something we just do not need or
want.
Do the general permits improve the environment? Not at all.
Agriculture does not need the added burden. States do not need
the added expense. And even EPA and the majority of Congress
have voiced their opposition to the permits. There is a
solution to this nonsense, enact House H.R. 872. I am informed
there are 65 or more senators willing to support this
legislation if it is brought before the Senate, and we can only
hope there is one additional vote, that of the Senate majority
leader.
I thank you, and I will entertain any questions you all
have.
Chairman Tipton. Thank you. Next on our panel we have Ray
Vester, a third generation rice farmer from Stuttgart,
Arkansas. Mr. Vester is testifying on behalf of the USA Rice
Federation where he currently serves as chairman of their
Environmental Regulatory Subcommittee. Thank you for being here
today, Mr. Vester, and we look forward to your testimony.

STATEMENT OF RAY VESTER

Mr. Vester. Thank you. Mr. Chairman, other members of the
Subcommittee, I appreciate the opportunity to be here today to
speak to regulatory issues facing the rice industry and other
agricultural industry people.
The USA Rice Federation--I am Ray Vester from Stuttgart,
Arkansas, the rice--president of the USA Rice Federation
Environmental Regulatory Subcommittee. The USA Rice Federation
is a national organization representing rice producers,
millers, and merchants, and others involved in the rice
industry. They are an advocate for the production on milling
and sales of rice here in the United States and also the sale
of rice around the world.
The rice industry is an industry which is unique to the
United States. There are 10 states that produce rice. The six
leading states are Arkansas, California, Louisiana, Texas,
Mississippi, and Missouri. Four other states produce rice and
that is Florida, Tennessee, Kentucky, and Illinois. There are
about three million acres of rice raised each year in the
United States and an average of about 9,000 farms that produce
that rice. It is a $34 billion industry here in the United
States, creating 128,000 jobs in that industry, many of which
are rural jobs in small communities around the nation. There
are 20 billion pounds of rice produced each year, half of which
is exported, but the other half is consumed here in the United
States. Pests that affect the rice crop are insects, disease,
and of course, weeds and grasses, and rice is a crop that is
grown in the water. It is an aquatic crop.
I am here today to speak on behalf of the rice industry
concerning the NPDES permits which we are looking now at since
November 1 has arrived. The first thing that is obvious when
you read the permit is that there is education needed in the
Office of Water in the Department--in U.S. EPA. One of the
first things you read is that the use of pesticides should be
done at the lowest amount of pesticides possible delivered in a
precise way to actively control the pest. That is what farmers
do each and every day because that is the reason of economy
savings. Then the next language that comes up states that the
pesticides are only to be applied as a last resort measure when
pest conditions can no longer be tolerated. If that approach is
followed, then the first approach cannot be reached. If you
wait until the last to control the weeds, then you use more
pesticides. If you use the pesticides early you use smaller
amounts. It would be like taking your child to the emergency
room or to the doctor with a sore throat and the doctor tells
you, well, he has strep throat and you say, well, you know, he
is not sick enough to have antibiotics yet. I will take him
home. And you come back at the end of the week and his throat
is so sore he cannot speak. He is running a fever. You say,
well, I still think he is strong enough to survive. And a week
later you find him in the hospital with an IV with antibiotics
hoping you save his life. That is the approach the NPDES permit
takes when it comes to the application of pesticides on rice or
any other crop.
Rice is grown in an aquatic situation. In fields with
established borders, levy borders, to keep either water in or
out. Water is kept in during the growing season, released
during the harvest season, and dried. It is not waters of the
U.S. There are waters pumped into the field there. The permits
required for any time you apply a pesticide in the waters of
the U.S. rice we feel is not planted or grown in waters of the
U.S. It is planted and grown in a flooded situation.
The permits are supposedly to permit--to prevent pesticides
being released into the waters of the U.S. when, in fact, a
permit allows you to release pesticides into the waters of the
U.S. We are already covered by FIFRA, which as the speakers
have already said that covers all those situations. It is
established. Farmers follow those rules and regulations. Aerial
applicators follow those rules and regulations. And with the
passage of NPDES permits we have double regulation. We are
doing the same thing over and over again, costing family farms
more and more money to accomplish what is needed. The rice
industry is very much against the passage of this.
On the dust issue, it is hard to farm without dust. It is a
natural reaction. If you do not have dust, the ground is too
wet to work. If you have dust, the ground is ready to be
prepared for planting. We are challenged and given the
responsibility to raise crops to feed this nation. And with
dust regulations that supposedly could be imposed we face a
very difficult situation. We stand very much opposed to the
dusty regulations that may affect rice farmers and farming in
general in the United States.
I would be happy to answer any questions that you might
have.
Chairman Tipton. Thank you, Mr. Vester. Now I would like to
yield to Mr. Critz to introduce the final witness.
Mr. Critz. Well, Carl, we are going to actually tag team on
you today because I did not know until just recently that
another member of the Committee, Mr. Barletta, you are actually
his constituent. So I am going to give you a very short
introduction and then yield to Mr. Barletta to give more of a
personal introduction.
But I would like to introduce Carl Shaffer. He is the
president of the Pennsylvania Farm Bureau. The Pennsylvania
Farm Bureau is the largest farm organization with a volunteer
membership of more than 50,000 farm and rural families
representing farms of every size and commodity across
Pennsylvania. Mr. Shaffer was just recently re-elected to a
third term on the American Farm Bureau Federal Board of
Directors and appointed to a second term as a member of their
executive committee. And something I just learned that I am
going to say, Lou, I am not going to let you say it, is that
among recognitions for leadership and achievements in
agriculture, Mr. Shaffer was named as a master farmer in 1996,
which is one of the highest honors awarded to farmers in the
Commonwealth. Congratulations.
And I would like to yield to my colleague from
Pennsylvania, Mr. Barletta.
Mr. Barletta. Thank you, Mr. Critz. And I would like to
thank my constituent, Pennsylvania Farm Bureau president, Carl
Shaffer, for traveling to Washington for this hearing today.
Mr. Shaffer owns a farm in Mifflinville, which is in
Columbia County, a county that was badly flooded just very
recently. Mr. Shaffer has worked hard representing all of the
farm bureaus across the Commonwealth of Pennsylvania. I look
forward to continuing to work with the Farm Bureau on important
legislature in the future, and I appreciate Mr. Shaffer taking
time out of his busy schedule to share his testimony with us
here today.
And I yield back my time and thank you, Mr. Critz.
Chairman Tipton. Mr. Shaffer, if you would like to
continue, please.

STATEMENT OF CARL T. SHAFFER

Mr. Shaffer. Thank you, Chairman Tipton, and Ranking Member
Critz. Thank you very much.
I really appreciate the opportunity to be before you today.
As was stated, my name is Carl Shaffer. I am pleased to offer
this testimony on behalf of the Pennsylvania Farm Bureau and
the American Farm Bureau Federation. I own and operate a farm
in Columbia County, Pennsylvania, where I raise green beans for
processing, corn, and wheat.
As a small businessman, I struggle to keep up with all the
laws and regulations that control how a person operates their
business. Of all the federal regulatory agencies, the one that
takes the most time and costs me the most in productivity, is
the EPA. In just the last three years, the EPA has set in
motion a number of new regulations that will change the face of
agriculture.
My written testimony highlights five issues. I will discuss
two in the short time I have today. One, EPA's burdensome and
we believe unlawful, micro management of the Chesapeake Bay
Total Maximum Daily Loads and number two, EPA's proposed
rulemaking expanding the scope of the waters regulated under
the Clean Water Act.
The first issue is occurring right in my backyard. The
EPA's TMDL for the Chesapeake Bay. All the land I farm is in
the Bay watershed, and most of the land is within the site of
the Susquehanna River. Unfortunately, the EPA does not believe
that economic considerations should be taken into account when
implicating a TMDL. The overarching problem is that EPA's Bay
model is fundamentally wrong. The EPA knows that the model has
significant problems and failed to correct it before they
finalized the Chesapeake Bay TMDL in December 2010.
A news article recently reported on the lack of scientific
credibility and quoted an EPA official dismissing the concerns
of local and state government saying ``use common sense and let
us get on with it.'' Another EPA official was quoted as saying
``none of this stuff should impede the planning for what
everyone knows is needed to be done.'' Well, common sense would
tell us that money does not grow on trees. Hard-earned and
private capital must be applied in a manner to achieve actual
and proven water quality improvements. Common sense would be
for EPA to leave the implementation of a TMDL to the states
where Congress intended.
A second issue is draft guidance on the Clean Water Act
jurisdiction. The draft guidance would greatly expand EPA's
regulatory footprint from the value of the land to restrictions
on land use. Farms and small business entities will expand
negative economic consequences. The EPA is changing the rules
of the game and has indicated they do not need to comply with
the Regulatory and Flexibility Act and the Small Business
Regulatory Enforcement Fairness Act. There is no question that
asserting Clean Water Act jurisdiction will limit the
activities that farmers, ranchers, and land owners will carry
out on their land. The EPA already tries to require permits for
changing from one type of farming to another. The guidance will
effectively remove the term navigable from the definition of
waters of the U.S.
The term and the definition of waters of the United States
permeates all sections and programs under the Clean Water Act,
including oil spill prevention and control measures, water
quality certifications, the just issued pesticide permits, and
soon to be issued post-construction storm water regulations.
The economic implications of continued and purposeful
federal regulatory overreach will be staggering. These costs
will impact the whole economy and this committee should not be
surprised when our productivity contracts and jobs are lost to
foreign competition. I want to thank you for convening this
hearing, and I will be glad to respond to any questions you
might have. Thank you.
Chairman Tipton. Thank you, Mr. Shaffer. I appreciate that.
It is always kind of interesting when you get the unintended
consequences, which come from regulation. We all want clean
air. We all want clean water. And some of the impacts.
We will start out with questioning. I would like to begin
actually with Mr. Felix from my home area.
Aerial application and pesticides play a major role in
protecting our farmlands, forests, and other invasive species
in enhancing the production of food and fiber. Mr. Felix, how
will the expanded NPDES permit requirement impact your ability
to be able to serve farmers, local governments, and others that
rely on timely economic applications of pesticides?
Mr. Felix. Well, I think currently those kind of
applications represent about 40 percent of our business. With
the risks that go along with the citizen suit efforts that can
be done I am really considering not doing those applications
anymore. So as far as the right-of-way worked on the canals,
they would not be done timely anymore. I would lose that
revenue and also would not need as many employees to get that
work done. And the water users would have to be adding to their
arsenal of some way of controlling that problem because it is
not going to work for us.
As far as the mosquito and the aquatic applications that we
have done for adult mosquito control and for junk fish in the
DOW waters around there, again, probably would not be able to
make those applications anymore. So how they would accomplish,
that I do not know, but it is going to put such a strain on my
business I do not think I would be able to accomplish those
anymore.
Chairman Tipton. So simply from proposed regulatory
requirements you are considering just not doing it anymore?
Just simply cannot afford to do it. Is there going to be
collateral damage to the community at that point, the farm and
ranch community?
Mr. Felix. Yes, I think so, especially on the irrigation
projects and the communities that we would cease to do mosquito
applications for.
Chairman Tipton. How will these new regulations--do you see
them impacting or having some good impacts in regard to
environmental or public health in terms of expanding
protections?
Mr. Felix. Congressman, we have been doing this work for
years and years and the EPA has regulated those products that
we use to the point that we are using safer and more
appropriate products all the time. And we see no adverse
environmental effects from what we are doing so it is not going
to change anything. It is just going to make compliance more
difficult and more risky for us to be involved in business.
Chairman Tipton. Thank you. Next question perhaps we can
have Mr. Nelson and Mr. Shaffer from our two Farm Bureaus maybe
address this issue. EPA administrator Lisa Jackson has proposed
retaining the current standard for coarse particulate matter.
However, there is no agricultural exemption for farm dust. This
uncertainty still lingers throughout the farming community. Mr.
Shaffer and Mr. Nelson, in previous years when the EPA has
revised air quality standards for the Clean Air Act, has the
agency's final rule always reflected what the EPA initially
proposed concerning farm dust? Mr. Shaffer.
Mr. Shaffer. You know, I think it is very easy to look at
recent history regarding the EPA. An environmental organization
will file a lawsuit against them. And instead of defending
themselves in a court they will settle, and thus promulgate a
new regulation. We have seen this time and time again. And I
think that is the danger of this, that is the way a new
regulation is being developed, unfortunately. My feeling is it
is the obligation of Congress to develop regulations where it
can be brought out in the open, debated, and come with some
common sense reasonable regulation, but instead it is almost
like the EPA is encouraging somebody to sue them so they can
settle and just develop a new regulation upon agriculture.
Chairman Tipton. Mr. Nelson.
Mr. Nelson. A couple of concerns that I have, and Carl
alluded to one of them, I think the intent in Congress when you
look at the Clean Air Act is one thing and I think what EPA is
proposing is another. And I guess I am very concerned where we
have farmers in certain parts of this country right now that
cannot even comply with the particulate matter that they are
proposing.
As I said in my testimony, when we harvested this fall and
you see a natural cause happen when you are harvesting a crop
that is ripened, you know, farmers have no control over that.
And I think what irritates farmers the most is getting back to
a comment that was made earlier, there just needs to be some
common sense put into this equation as we talk about this. But
in response to your question, I think I am very concerned that,
you know, EPA keeps proposing these and keeps handcuffing
farmers across this country, not just in Illinois, with their
proposed rules.
Chairman Tipton. I believe that is an important issue, Mr.
Nelson. I appreciate you bringing that up because we are seeing
some activist groups now encouraging expansion of the
particulate matter out into the western states to where when
the wind blows--I know in my part of the country and I know Mr.
Felix can speak to this as well, we have half of Arizona
airborne over us every spring just in terms of the dust coming
in. So that certainly does be able to create some challenges
for us. I appreciate you bringing that up.
Small business owners raise concerns that the EPA and its
rulemaking in terms of clarifying waters in the U.S. is not
adhering to mandatory requirements of the Regulatory
Flexibility Act and the Small Business Regulatory Enforcement
Fairness Act as well. The Farm Bureau Federation and other
groups wrote to the EPA to express their concerns on this
matter and we would like to be able to submit that in today's
hearing record as well.
Given the significant and potentially devastating effect of
this rule on small businesses, it is critical that the EPA
ensure small businesses have a fair and meaningful opportunity
to participate in the federal rulemaking that the agency
completes all of the necessary costs benefits analysis. What
are some of the costs you see coming out of some of these
rulings--potential rulings for EPA dust control?
Mr. Nelson. The first thing that comes to my mind is how
are you going to comply? In harvesting, I think you are very
limited in what you can do to try to meet that requirement. I
look to my colleagues in California that might have a lot of
fresh produce, that they drive down a dirt road. They are out
of compliance under the proposed rules that they are pushing
forward. So I think the compliance issue is one thing that
rises to the top of every businessperson involved in
agriculture in trying to comply with it.
Chairman Tipton. Mr. Shaffer, do you have any comments?
Mr. Shaffer. I would just echo that. But just for instance
in Pennsylvania, we have a large amount of dairy farmers for
instance and they depend on making hay for cattle feed. Well,
you cannot bale hay and put it away wet, or you are going to
have spontaneous combustion. So just by the definition of it
you have to let hay dry. Thus, when you go to bale it you are
creating dust. So honestly, you know, as I said in my
testimony, it is laughable when they say use common sense.
Well, this is common sense and to try to regulate particulate
matter over dust and things like that, that is not common
sense.
Chairman Tipton. Yeah. The uncertainty is certainly a
question.
Mr. Felix, could you maybe address, has it been your
experience in terms of applying pesticides that you will wake
up one morning and you have new labeling that you may not have
been made aware of that can put you out of compliance?
Mr. Felix. Certainly. This happens quite frequently. As a
product comes down the pipeline to us and the label changes
come, we are not notified of it. The only responsibility we
have is reading that label as we get it. And we have lost uses
in the middle of the season. For instance, I was applying a
product to spinach and there was a complaint made to the
Department of Agriculture and they came in to do the
investigation. I went out and got a label off the new products
and spinach was not on the label, but the material we carried
over for the winter it was. And so these kinds of things are
going on all the time on a daily basis and that is why in my
testimony I mention we become experts on the label and the
proper use of the products in compliance with that label and
that was one lesson almost learned the hard way.
Chairman Tipton. Thank you. Just a couple more questions
and then we can get our other members involved here as well.
Mr. Vester, due to the uncertainty of the process to obtain
a general permit have you started to consider changes that you
will need to make in order to comply with new permitting
requirements?
Mr. Vester. Well, once again we are dealing with U.S. EPA.
Most of our farmers have no clue this is there. They receive no
notification from anybody. If they read the National Register
every morning they might discover that there has been a new
rule. We have spent a great deal of time on SPCC [Spill
Prevention Controlling Countermeasures], and we were finally
able to obtain an extension on implementation of that
regulation. EPA has promised. We debated that for five years
with EPA. A plan came out with a plan which we had agreed to
with a promised five-year implementation and then all of a
sudden it changed to one year. It was promised education to
know what to do. That was never done. Most farmers even today
when they got the extension did not know what they got the
extension for. There is very little information that comes from
the EPA. It is assumed that we know everything they do. It is
difficult to do.
We, in the rice industry, consider and debate the fact that
we should be exempt because our water issues on the production
of rice is return flow irrigation water and storm water runoff.
Those two are exempt by law in the Clean Water Act. Period. But
EPA is trying to circumvent that by the fact of writing
regulations that bring on environmentalist lawsuits. That is
the way they regulate now, judicially, not legislatively. And
that is what we face each and every day. And the NPDS permit,
as I said earlier, they tell you to use as little chemicals as
possible with no set amount which opens that to lawsuit trying
to establish what amount. Then they say that you can only use
it as a last resort. So who decides what is last resort? And
last resort does not work.
You know, we are dealing with an agency that writes rules
for what we do and they do not know what we do. They do not
know how we do it. They just know that there ought to be rules
for it. We have people who have spent their entire life on
concrete trying to tell farmers how they should run and operate
their business, how they should plant crops, how they should
grow crops. The U.S. farmer produces the most abundant, the
safest, cheapest supply of food to the American public and we
get beat over the head every year because we are not doing it
right. You know, I do not know what our answer is. You know,
how do you not spray a pesticide on your rice to take care of
insects, disease, and grasses and weeds when it is an aquatic
crop? Now, the water seldom ever leaves that farm because in
our state most of the water is retrieved, placed in reservoirs,
and reused.
In the 1980s, EPA did a study in Western Tennessee on rice
fields where water was put in and where it came out. And the
results of that study were the fact that the rice was cleaner
coming out of the rice field than when it was put in, whether
it was service water or well water because of the marsh-type
atmosphere of a rice field. But that study was never released.
It was never made public because it did not give the results
they wanted. Water coming out of a rice field is safer and
cleaner than the water going in because of its marsh-type
atmosphere. It is a daily battle with EPA for us. And we have
continuing regulation that, you know, what is our answer? I do
not really know.
Chairman Tipton. Thank you, Mr. Vester. I appreciate that.
I would now like to yield to Ranking Member Critz for his
questions.
Mr. Critz. Thank you, Mr. Chairman. And because of our
testimony and the questions you have answered, I had a whole
slew of questions I wanted to ask but you have given me a whole
slew of new ones that I want to ask because obviously part of
the process here is for us to learn more about what is going on
so that we can make educated decisions, but also to make sure
that anyone who is listening and that the testimony goes around
so that other members of Congress can learn as well.
But because you are my guest, Mr. Shaffer, you get my first
question, of course. It is a little off the defined topic of
why we are here today but it is such a big issue in
Pennsylvania. It is, of course, the Chesapeake Bay discharge
concerns. And actually, I was showing Carl when I came in that
Farm Bureau News--American Farm Bureau News has Carl on the
front testifying before the House Agriculture Subcommittee on
Conservation, Energy, and Forestry about Chesapeake Bay issues
that we are having in Pennsylvania.
So Mr. Shaffer, your testimony talks about the billions
that could be spent on EPA's Chesapeake Bay TMDL. Does anyone
know how much this will cost taxpayers and/or businesses?
Mr. Shaffer. Unfortunately, no. This is the mindboggling
part of this. EPA is projecting this regulation and they have
never done an economic analysis or cost-benefit analysis on
this. Recently, Virginia has come out and they said they are
estimating that it is going to cost them $7 billion to comply.
New York has come out with a figure of $6 billion. But the
bottom-line is there has not been a cost analysis or a cost-
benefit analysis.
And let me make one other point. We look at the Chesapeake
Bay and think this is a regional issue but I will tell you
exactly what EPA has said. This is a pilot project that they
are going to use throughout the United States. So to all your
other colleagues across the United States, this is going to be
an issue they are going to have to deal with as well.
Mr. Critz. Well, and for those in the audience and in the
panel, the reason I asked Carl to be here is that he is in Mr.
Barletta's district and represents farmers and the Chesapeake
Bay watershed really does not impact my district but because of
this pilot issue, because of the cost. And when you mention it
is going to cost New York $6 billion and Virginia $7 billion,
that is not the state, that is the farmers. Is that correct?
Mr. Shaffer. No, that is the state. Because this is going
to go beyond the farms. This is going to go and involve
communities. It is going to be involving their regional
planning. It is going to involve their municipal water
treatment systems. It is going to have very far reaching
effects beyond the farm. As you indicated earlier, their own
numbers say that they are going to take--we are going to have
to take 20 percent of the land out of crop production.
Mr. Critz. Six hundred thousand acres. That is right. Yeah.
Mr. Shaffer. Which is unreal. And looking at their model,
as I indicated, it is faulty. They do not indicate in their
model that we utilize any best management practices whatsoever
where we have been doing it for 40 years utilizing best
management conservation practices.
Mr. Critz. Thank you. Thank you. And Mr. Felix, you made a
comment and I am actually going to say something that is
extremely sarcastic and I think you will get it when I am
through, is that obviously you have run probably a $20-, $30
billion dollar business and you have a staff of attorneys that
go over regulations and things that are coming down. Is that
true?
Mr. Felix. No, sir.
Mr. Critz. No, sir. [Laughter.]
So you have 20 employees? One hundred employees?
Mr. Felix. Actually, nine full-time employees. That
includes mechanics, my two sons and myself, and loaders and
field scouts. And we provide a turnkey operation. So we go out
to the farmer and we check the fields, assist them in decision-
making on what kind of applications they need to save them the
money they need and still put a crop in their storage so that
they can have something to go from one year to the next,
whether it is livestock--we do range land, all the farm land
around there, forestry. I mean, it is a turnkey thing. We also
do surveillance and game surveys for the DOW with the
helicopters in the wintertime and provide search and rescue for
the communities and the counties in the local area, plus fire
suppression for the sheriff departments in the local areas with
both aircraft.
Mr. Critz. Well, good. And the reason I asked my very
sarcastic question at the beginning is that this label change
that happens, that comes as a surprise, is that you find you
have stock that you cannot use for certain items. And what you
are saying is that there was no notification. It is up to you
to somehow--to read the Federal Register every day to find out
what is going on because of the impact. So you end up with
stock that now has devalued if you have carried something over.
Is that----
Mr. Felix. Well, or you have to use it in a different way
or return it. I mean, sometimes we can do that. But if they
take a product completely away then you are just stuck with it
and you have got to pay to have it disposed of with hazmat
people. And that just happened last year with carbofuran.
Mr. Critz. I can understand your frustration. That is an
interesting item that certainly we need to look at that.
Mr. Vester, you made--you used an example and I want you to
further clarify this. And you used the strep throat example for
NPDS permitting.
Mr. Vester. Right.
Mr. Critz. Can you go through this again and maybe use a
different analogy? Because I am trying to figure out--is that
the NPDS is a--you are saying let us wait until the patient is
dying before we--well, I will let you explain it because I am
trying to get it straight in my head.
Mr. Vester. I understand. In the NPDS draft permit it makes
a statement that you should use the lowest amount of pesticide
possible to apply to your crops and apply it specifically so
there is no drift. We do that regularly because that is the
plan. When you first see one and two leaf grass you spray to
kill it. When you first see five to 10 worms every so far in a
sweep you spray to get rid of them. When sheath blight and
blast, which are funguses that grow in rice, when you find 10
stalks in a certain area, you spray. When the least amount of
disease and insects and weeds are there you spray with a small
amount of pesticide. But then in the next paragraph or later on
they say that pesticide should be the last thing you do to
prevent these pests. That you should wait until it is
intolerable, I think they say, to apply anything to stop them.
So if you do that, if you follow that practice----
Mr. Critz. So that is almost contradictory.
Mr. Vester. It is contradictory because they do not
understand. They have written a regulation dealing with
something they do not know what they are talking about because
if you wait too long then you use a 2X rate in what we call a
salvage operation because the weeds are starting to choke the
rice out they are so big and strong or the worms have eaten 90
percent of what is there or the fungus has spread so bad it
destroys the yield and the quality of the rice. And it would be
like taking a child to the doctor or yourself to the doctor
with a bad cold and they say you have strep throat and you tell
them, well, I am strong. I can survive it. And you keep going
back until you are finally in the hospital and the last resort,
you take antibiotics. You get an IV because you are dehydrated.
It is the same ignorance that you would be if you did not
accept what is needed for you physically for health as if you
do not do what is needed physically for the health of your
crop.
Mr. Critz. So it is almost like preventive medicine? Is
that----
Mr. Vester. Well, it----
Mr. Critz [continuing.] Spend a little upfront to save the
huge amount down the road. And plus, if you are losing crop,
you are losing--you are spending more and losing--you are not
making as much.
Mr. Vester. When you wake up in the morning with a sinus
headache and pressure, do you take something to stop it? You
do. If you do not, what happens? It keeps getting worse and
worse and finally you may have a sinus infection and you go to
the doctor. If you walk into your field and you find one and
two leaf grass, it takes a small amount of herbicide to kill
that. If you wait till it is five- to six-leaf grass it takes
an enormous amount of pesticide to kill it. And so on one hand
they are telling you, you know, do not use a whole lot but wait
to apply pesticides or herbicides until there is no other
option. Well, in the first place that is the only option.
Mr. Critz. So let us take this a step further. So common
sense. We are going to use common sense. We are going to use
the reasonable man approach here. Do you spray when you see
those two blades of grass? Now, what happens with the
permitting? Does it come back that you get pushback from the
agency or what--I mean----
Mr. Vester. We have not, you know, we are starting a new
year. Okay? We are regulated at the state level because EPA
directly regulates six or seven states and the rest of the
states it is delegated to state authority to regulate. In
Arkansas it is DEQ. So----
Mr. Critz. Pennsylvania--is DEP Pennsylvania or is it EPA?
Mr. Shaffer. In Pennsylvania the pesticide rules fall under
the Department of Agriculture.
Mr. Vester. And it varies state to state. So we all have
different rules and the only stipulation that each state has,
they have to have a rule as stringent or more stringent than
what the U.S. EPA rule is. You cannot be less stringent. So----
Mr. Critz. Right. Okay.
Mr. Vester. Our rule is just now coming out to be known. So
whether we need to--we have to read that rule for the coming
year to see if we are going to have to have a permit and what
establishes that if it is approved what we write in the EPA.
Now, we have only seen and the State of Arkansas has written
off the draft regulation because we had to--we had to have the
state regulation ready by November 1. Well, EPA did not have
the full regulation ready until November 1. So we had, you
know, we could not----
Mr. Critz. Right. You had to use the draft.
Mr. Vester. We had to use the draft. Well, the draft does
not look anything like the new regulation. So I do not know
even if Arkansas or any of the other states have a regulation--
--
Mr. Critz. Or if they will be----
Mr. Vester [continuing]. That is approved by EPA.
Mr. Critz. Yeah.
Mr. Vester. So, you know, the original draft that EPA--
draft that EPA came out with, you know, there was talk that you
had to apply for a permit in the winter for the coming year
listing all the pesticides you were going to use in that coming
year. You do not know. You do not know when you are going to
use them. Weather and time of the year dictate what we do as
farmers. You know, when the crop is planted. We cannot--we do
not have a business plan that says today we are doing this and
tomorrow we are doing that.
Mr. Critz. Right. Right.
Mr. Vester. You know, like I said, EPA is regulating
something they do not know anything about.
Mr. Critz. Yeah. Well, I think we had it in Pennsylvania
this last year is we had--it was wet early, then it got hot,
and then it got wet late again so it changes. So I see what you
are saying.
I have one last quick question. Well, I do not know if it
is going to be quick. You know me.
But Carl, you had mentioned about EPA, and this is another
issue I am trying to get my hands around, EPA issues a rule,
gets sued, and then settles and that is now new regulations are
created. Can you walk through that a little and maybe give a
specific example?
Mr. Shaffer. Yeah. I can give you a very specific example
of it. And that is the Chesapeake Bay TMDL.
Mr. Critz. Okay.
Mr. Shaffer. The Chesapeake Bay Foundation filed a lawsuit
against EPA saying they were not acting in a timely--they
needed to act in a more timely manner and put more enforcement
into cleaning up the Chesapeake Bay. Instead of even leaving
that and go to court and have a court decide whether that
lawsuit had validity or not, EPA settled and said okay, we will
settle. Now it is our responsibility. We have to come out with
a whole new set of rules to meet the challenge of the
settlement of the lawsuit. So the Chesapeake Bay TMDL came out
of just one environmental group suing EPA and EPA not even
defending themselves for any practical purpose. They just
agreed to settle and put out a whole new set of rules. This is
happening time and time again. And unfortunately, as I said in
my testimony, you are the entity that should be setting rules
and regulations, Congress, and instead EPA is doing this by
settlement agreements. And a lot of different issues are being
promulgated this way.
Mr. Critz. Thanks, Carl. I yield back. Thank you, Mr.
Chairman.
Chairman Tipton. Thank you. I recognize Mr. Barletta for
questions.
Mr. Barletta. Thank you, Mr. Chairman.
The word I heard most here this morning was the word
``common sense.'' And I could tell you in my short time here in
Washington, the 10 months I have been here, I found that common
sense is not as common here as it is in Pennsylvania, Illinois,
Arkansas, or Colorado.
I think we all agree that farmers have a vested interest in
conserving and protecting their land and the agricultural
sector is vital to our nation's economy. And also, you know,
people may not realize it is vital to our country's national
security. It is very, very important that America continues to
produce its own food. And I am very concerned about that. Some
of the regulations that you have to live under, other countries
are not. And we are putting America's farmers at a disadvantage
as we have done in manufacturing and then we wonder why we do
not have any more manufacturing in America. We are doing the
same thing in farming. And I believe it is a national security
issue.
But assuming this is true, Mr. Nelson, how can the
Environmental Protection Agency justify--how can they justify
imposing these burdensome regulations on American farmers?
Mr. Nelson. Well, that is the question we have been asking
ourselves as producers because when you start looking at their
proposed regulations, whether it is in clean air or clean
water. And I think the frustrating part that we see on behalf
of the farm community is we are not given any credit for the
environmental practices that we have in place. Case in point,
over the last two decades we have reduced the use of pesticides
almost 30 percent through biotechnology that we use in our
crops. Secondly, we probably use 25 percent less fertilizers
over the last two decades. We plant filter strips as was
alluded to earlier to make the water cleaner. In Illinois, we
have private pesticide applicator training. Every three years
you go through a training exercise and have to be licensed. So
I think the frustration that we have is we have a lot to offer
as an ag community to put on the table of practices that we do
have in place, which are best management practices but we are
not given any credit for that. And I think that is the
frustration that we see in the justification of the EPA.
I use a recent court ruling in the Fifth Circuit as it
relates to livestock production. It said if you do not
discharge, you do not need an NPDES permit. The EPA did not
appeal that, but yet at the present time in the state of
Illinois and other states, we are facing the fact that the
state or the regional EPA offices are saying, well, that was
the case in the Fifth Circuit but we are still wanting
producers in the case of livestock to obtain permits. And we do
not necessarily agree with the definition of a discharge. So I
think we are wrestling right now on that segment the same as we
are with this general permit of which we tried to have input
into the drafting of that, and the final stages of that permit
look far different than they did in the drafting phase. So it
is a very difficult question to answer but in the eyes of
agriculture we have a lot of question marks of how they can
justify doing this and taking what we said today and the
production side of what we do best and producing a safe,
abundant food supply and trying to hinder that.
Mr. Barletta. Mr. Shaffer, I agree with you. You are right.
The regulations of what we are seeing in Pennsylvania, folks
around the country should be paying attention because it will
be coming soon to your neighborhood. As you know, much of our
congressional district, including your hometown of
Mifflinville, is located in the Chesapeake Bay watershed. I
know that you, like many other farmers in Pennsylvania, are
concerned about EPA's regulatory approach in the Bay watershed.
Yet the EPA has been assuring congressional panels that states
will have control over implementing water quality programs in
the Chesapeake Bay region. Has this been your experience?
Mr. Shaffer. Absolutely not. The Clean Water Act, in my
opinion and our opinion, simply says that the state should have
control over their waters. And in implementing the TMDLs the
state of Pennsylvania, all the states in the watershed, are
required to do water implementation plans. So Pennsylvania
started working with the stakeholders, who are farmers and
other people, working to develop its first phase of the
watershed implementation plan. It had questions. It reached out
to EPA and said, well, is this part of the water plan going to
be acceptable or not? And EPA's answer was submit the plan, and
we will tell you if it is acceptable. They developed a plan,
submitted it. It was immediately rejected and EPA said it did
not have enough backstops, enough enforcement. So how do you
say the states are controlling their own waters when the EPA is
rejecting the plans and dictating what they have to do?
So I am very concerned about that. And, you know, every
state is different. Topography is different. Weather conditions
might be different. So we go back to common sense. It just
makes common sense that each state is in a better situation to
develop a plan to protect the waters in its state. A one size
fits all plan just will not work.
Mr. Barletta. Mr. Shaffer, common sense is a dirty word
around here. Thank you, Mr. Chairman.
Chairman Tipton. Thank you, Mr. Barletta.
You know, listening to you, and Mr. Felix, I hope you do
not mind if I share a little bit of a conversation you and I
had had before this hearing.
Mr. Felix. Go ahead.
Chairman Tipton. I would like to preface this, you know, if
you look back at the census in this country--I believe it was
1950-1960--we had 130 million Americans in this country. Our
latest census shows we have over 300 million Americans. That
population growth is happening worldwide. Mr. Felix, you shared
with me in our part of the country, on the west slope of
Colorado, that you are seeing fields now that used to grow
crops growing subdivisions.
Mr. Felix. The last crop, asphalt and shingles.
Chairman Tipton. Asphalt and shingles. And is the
experience--we have the rice community represented here, a
couple of Farm Bureaus, are you seeing more and more farmers
simply throwing up their hands and saying we cannot comply. We
do not know what the regulations are going to be. It is not
worth the cost. It is not worth $37,500 per day in fines just
to try and conduct business and to grow food for the American
people? Are you seeing more farmers just reluctantly saying we
have had enough?
Mr. Felix. I will say emphatically on the livestock side
they are just frustrated. I just talked about with the
definition of a discharge, we think of that as if something
were to happen in a lagoon which stores the manure from
livestock--would break if something like that would happen. We
consider that a discharge. EPA is considering a discharge a
rain event that comes off of a roof that hits a ventilation fan
that might end up in the grass as a discharge. That is how
farfetched this is getting. So the livestock community is very
frustrated. And I am seeing people that are middle aged or
approaching, you know, the latter part of their life. They are
just throwing the towel in and saying forget it.
I think on the crop production side we alluded to this
earlier with your sarcasm, Mr. Congressman, but we are getting
to a point and it is not a laughable matter that farming
operations are going to have to have a regulatory specialist to
keep up with regulations to keep their farming operations in
compliance. And as I said before, the ironic thing is today an
American farmer feeds themselves and about 155 other people. If
we continue down this pathway, you can look out 10 years from
now where that number might be half or even a third of that if
we keep hamstringing what we do best. And by the same token, I
think we consider ourselves to be the true environmentalists
who do protect the water that we drink in the farming
operations that we are a part of and the air that we breathe.
Chairman Tipton. Thank you. Anyone else care to comment on
that?
Mr. Vester. Go ahead.
Mr. Felix. The thought that comes to mind about this whole
thing is--and you can take it to the economy even--is that
there is no new wealth in this country except for what we grow,
what we mine, what we fish out of the oceans or the rivers, and
cut from the forests. Everything else is a turnaround, a reuse
over and over and over. And without that new wealth from this
country, we are going down. You have to have new wealth. It
does not come from anywhere else. It is either the sun or the
earth. That is it.
Chairman Tipton. All right. Thank you. Mr. Vester.
Mr. Vester. You know, to be--I will use a term I do not
like--but sustainable rice producer in this day and time--I do
not agree with that terminology although I do serve on a
committee that we discuss that. But a rice farm in our area, to
be sustainable as a family farm, you need to be farming a
minimum of 1,500 acres in a crop rotation, which normally there
is rice, soybeans, and wheat, or rice, soybeans, and corn. That
steadily grows and grows. Farms have to be larger because of
the economy of size. No matter how much commodity prices climb,
no matter how much you get for a crop each year, the cost of
producing that crop comes up right under it. It is a margin
about this wide. I tell people that farmers are people who
faithfully every year go to the bank and get a crop loan to
produce your crop and they mortgage everything they have--their
equipment, their crop they are going to grow, the crop they
have not sold all of yet, their wife and children, if the bank
would accept it as collateral, with the hope and a prayer that
by fall when that crop is harvested that the commodity prices
will be high enough and the yields will be good enough, which
in reality we do not control. A lot of that is controlled by
weather conditions. And they have enough return to pay off that
crop note and enough money left over till the next crop loan is
funded. That is basically what we do because the margins are
that thin. Some people are very successful because maybe it has
been generations of families buying land but the average
farmer, that is what they look at each and every year. With new
regulation, new cost, new things they face each and every day,
it is very discouraging.
You are not finding--I have to say in our area we have got
a lot of young farmers coming in right now who are following
dads in and dads are retiring. But people get very frustrated.
It gets very difficult. Costs are enormous. Returns are low.
And you know, I sit on a bank board and if you look at most
crop loans that we look at, the margin in that crop loan,
whether they are a corn farmer or a rice farmer, is equivalent
to that deficiency payment they received. That is the margin.
That is what is left over. Okay? And some years it is not that.
This year it will not be that because costs were so high. We
were the same way in Arkansas. We had a flood period. We were
dry first. We had floods. We had land that was flooded and
could not be planted until late and they lost their crop due to
drought. I mean, that is what you face in agriculture. And when
the young people can go to town and work 40 hours a week and
make more money than mom and dad, why would they stay there? I
mean, that is what you look at.
You know, years and years ago it was said if farmers took
everything they had invested if they owned land and put it in a
savings account at 2 percent interest, they would make more
money than they did farming. And that was true. You know, we
are kind of--maybe we are not very intelligent. I do not know.
But we love what we do. It is a great joy. I have a grandson
that is 12 years old and that is all he wants to be. And that
is wonderful. But Mr. Felix is correct. We are facing, I think
a frightening thing.
I lived through the '70s when they told us to plant fence
row to fence row. We were going to run out of food and we did
not because some things happened. But are those things going to
happen this time? Are we running to the end of the line? You
know, I really question that. The economic conditions in the
United States right now are going to be devastating to
agriculture. We are down--right now we are down to seven major
seed companies in the United States. Two of those are
considering selling out. Of those seven seed companies, they
own the five chemical--major chemical companies in this
country. Okay? They have united. All of those seed companies
own a chemical company except for one or two. We are down to
two major fertilizer providers nationally in the world. When
the products you need are that closely held, do you know what
happens to the cost of them? They go out the ceiling.
In reality, I think financing is shrinking. Bank of
Cooperatives, which loans money to co-ops and big farming
operations around the country, in several areas have combined
with Farm Credit. Even financing for agriculture is becoming
closely held. I really feel personally that we are almost
entering a period of feudalism where the margin in agriculture
is so small that the farmer is going to have so much wrapped up
in fertilizer, seed, and chemicals, and paying for regulatory
issues that if he stumbles and has a bad crop he will never be
able to climb out of the hole and put those seed companies--and
they will finally merge seed, fertilizer, chemical, and finance
altogether. They will say that is all right. You can keep
farming your farm. You will not own anything but we will pay
you a salary. That is where we are headed in agriculture in
this country right now. I think we are very close to it. Do you
not?
Chairman Tipton. Thank you.
Mr. Felix. I think that is where we are headed, a system of
feudalism. And, you know, we need to do something for the
agricultural community, to slow this down and get it back to
where we are a production agriculture feeding the nation and
the world.
Chairman Tipton. Mr. Shaffer, any comment?
Mr. Shaffer. Just to follow up on your statement of farmers
getting disgusted and giving up frustrated. I am as concerned
about our young people. Where is the next generation of
agriculture going to come from if they are discouraged from
even entering into it? And where are the next food providers in
this country going to come from if that frustration is carried
to the younger generation?
Chairman Tipton. Thank you. Congressman Critz, do you have
another question?
Mr. Critz. Well, I had another question but, you know, one
quick story is after the tsunami in Japan, you know, a lot of
the farmers, because of the nuclear issues, had to move away.
And I will never forget they were interviewing one rice farmer
in Japan. He said, you know, he did not know what he was going
to do because he had been farming--his family had been farming
that land for 600 years. And the farmers that I encounter in my
district, that is the stock we are talking about. These are
people who want to do this and their families want to do this
for a long, long time. And it is up to us to try and help. And
that is, of course, what this is all about, is trying to be in
a position where we can offer some help. You know, obviously,
we are never going to solve every problem but we are on your
side and we are trying to do our best. And we try to listen and
learn to come up with solutions.
But the one question I did have is that when we are talking
about this, you know, I am going to go back to our pilot
program in Pennsylvania, the Chesapeake Bay issues, if you
could look back 20-30 years and compare it to today on the
environmental impact that farmers are having at this point,
what are the things that farming has done over these last
years? And a lot of times I know you can share statistics with
us that show that, you know, the work that has been done or the
work that is being done on farms now is so much more
environmentally friendly than it was in the past because you
have implemented a lot of things. And I think, Mr. Shaffer,
Carl, you had mentioned in your testimony or in some of the
information that part of your heartburn with EPA right now is
that they do not give credit to farms that are doing clean up
already.
So if anyone or everyone, anyone who wants to comment on
the difference now between--between now and if you want to go
back 10, if you want to go back 50 years--what the difference
is that you are seeing on farms and how you really are the
stewards of the land. And the reason I ask this is because I
want to make sure it is in the record so everyone gets to hear
it.
Mr. Shaffer. Well, Congressman, and Congressman Barletta,
as you know exactly where I live, I was born and raised along
the shore of the Susquehanna River. And when I was a child I
would go down to the river. The rocks along the bank were
fluorescent orange. There was all kinds of things floating in
that river and there were no fish. Today it is one of the best
smallmouth bass fisheries in the world. The waters have been
cleaned up.
My father used to raise beef cattle and I can remember on
hot days those cattle standing in the creek to keep cool. Now,
my father was not a bad man. He just did not know that was an
opportunity for pollution. We have learned that. We now have
stream bank fencing. We have adopted so many practices over the
last 40-50 years--no-till farming, cover crops--it goes on and
on with best management practices. We have done this
voluntarily without EPA's foot on our head telling us to do
this. And we have been able to do it through the development of
technology and new ways of farming that are more
environmentally friendly and we have adopted it on our own. And
that is why you can go to EPA's numbers of how much nitrogen
reduction there has been, how much phosphorous reduction there
has been, and how much sediment reduction there has been. And
it proves it.
And we still, as you mentioned, I was in that Congressional
hearing two weeks ago. The administration official from the EPA
stood there and said this is like trying to run a 10K race and
we are still standing at the starting line. Now, after all we
have accomplished, for them to say we are still standing at the
starting line, you talk about frustration. There is not any
bigger frustration than comments like that.
Mr. Vester. In the rice industry, compared to 20 years ago,
two of the major input costs in rice have always been nitrogen
fertilizer and water. We use half the water we used to use
because of developments of seed that mature more quickly,
because of practices how we do not lose water. It is a precious
item to us. Farmers conserve their water faithfully because
they have to have it. I would say that nitrogen use has been
cut by 40 percent and they are doing experiments now and
testing now not run by EPA, run by the Extension Service in our
state of how we can use less fertilizer yet.
We have made huge inroads. Nearly all farmers plant grass
barriers around their field to keep pollution down, to keep
erosion down. Farmers know that their land and what they do is
precious to them. It is no different than the man that has a
lockbox full of cash money. He is not going to leave the lid
open and let the money come out. That is our livelihood. That
is what we pass on to our children and to the next generation.
That is the way we make our living. We take care of what we
have.
As Mr. Shaffer says, you know, it is disheartening to hear
people say, well, you are just not doing enough. You know, what
you have done, well, anybody would have known to do that. And
there is an opinion in U.S. EPA that we are ignorant, straw
chewing people who wear overalls and do not have an education.
That is what comes across to me.
Mr. Critz. And it is interesting because I have yet to meet
a farmer that is not highly educated and can talk about
agricultural science, pesticide science. I mean, all these
things. It is amazing to me. It was actually an education for
me because, you know, I guess growing up you read books about
farming and it is just you work with your hands, people work
with their backs, but the education required is unbelievable.
And to your point, you are doing things so they have to be
smarter. The next generation has to be smarter because they are
innovating and they are doing good things. I did not mean to
interrupt but I am amazed at the level of education farmers
have.
Mr. Felix. I would like to go back to what we were talking
about the young farmers and where they are coming from. Our
farmers have implemented the very similar things that these
other gentlemen have related to, the no-till and the irrigation
practices. With the dust controls, we do not plow everything
anymore. All those things are being done every day in the
interest of not only the environment but also more efficiency
and better crops.
But back to the young people. There is a tremendous
resource there that if we lose it, I do not know where you are
going to get it back. Because if you think about this green
thumb that comes along with a grower or aerial applicator or
somebody that understands the cropping system and how to get it
done, how to do a minimum amount of applications to get the
maximum out of your pesticides, you cannot learn that in
school. That is something that is passed on from father to son
to son to son. And if you lose that, and I can attest to this
because I have got young farmers out there that came from the
city and they want to farm. But I can tell you what, they have
a heck of a time. And we offer them a lot of help, but even so
they make bad decisions and they do stupid things. And it is
really difficult to get them up to speed so that they can farm.
And most of them do not make it and that is what I see in our
area.
Mr. Nelson. And I think a lot has been said but, you know,
the one comment that I guess I failed to bring up through this
hearing and the frustration the farmers have with these
proposed rules is we cannot pass it on. I mean, we are a price
taker, not a price maker. And I think that that is a very
important point that I think this agency does not understand
from time to time.
But getting back to your question, 30-some years ago I
graduated from college and, you know, at that time the push was
to go towards no-till. And I remember coming home to farm being
the only one out of the six in our family that came home to
farm with dad. And the first year I said, Dad, we need to rent
a drill and we are going to no-till our soybeans. And I thought
he was going to kill me because he said, there you are, the
college-educated kid that does not get it. And at that time no-
till was not very common. But you know something? That year we
had above normal rainfall, the soil did not move, the trash was
there to protect it, and we looked at the T By 2000 campaign
that went on in Illinois in protecting our soils and our
fragile lands.
We looked at the conservation programs that we put in
place. The water is cleaner. The filter strips have protected
our streams and our rivers. And in crop production today I make
the comment we use prescription farming. We farm by the square
inch, through global positioning. We have auto steer
technology. We do not apply pesticides and fertilizers that we
do not have to because it impacts our bottom-line, and
secondly, we are environmentally friendly in what we do.
And I think shifting gears to the livestock side, being a
livestock producer, 30 years ago we raised a lot of our animals
in outside facilities. We brought those animals into controlled
environments where they live in sheds that are cooled and
heated during the winter time. A lot of places better than
humans live. And we raise a type of meat today that is rivaled
around the world. And yet we also take credit. Thirty years ago
we did not think of manure as a bonus to a farming operation.
Now we use it in our nutrient management plans that we put in
place as practices.
But I guess my closing comment is, you know, a lot has
changed in 30 years and it has all been for the good. But yet
we do not get credit for that it has been alluded to.
And I will use the analogy. I have a son who would like to
push dad out of the farming operation today and take it over
but he sees the storm clouds on the horizon of the EPA pushing
some of these rules and he is skeptical about whether or not he
wants to be a part of this business. And as Congressmen, as
members involved in agriculture, we have to get it right and
get this thing under control and get back to the common sense
that really, you know, needs to be injected into this debate.
Chairman Tipton. Well, thank you, gentlemen. I appreciate
your comments on that and fellow members of the Committee.
Sitting on the Small Business Committee it is an interesting
observation. All of our small businesses, be it farming,
ranching, small retailers, small production companies across
this country. As I have traveled throughout my third
congressional district to Colorado, 54,000-plus square miles,
at every meeting that we were at, within no more than 10
minutes the EPA comes up. The overreach of this body is
enormous and I think, Mr. Nelson, to your point, particularly
with our farm and ranch community, something that we cannot
ever fail to underscore for the American public is the farmer,
the rancher does not set their price; they pay the price, not
only in terms of the sweat off of their brow but out of the
limited resources that they have. And when we have a moving
target, and as Mr. Shaffer was noting, that the EPA views us
still at the starting line.
We have seen tremendous improvement because the best
custodians of our land is truly our farm and ranch community.
And I want you to know on my behalf, and I know on Congressman
Critz's behalf and Congressman Barletta as well, this nation
owes a deep debt of gratitude to that farm and ranch community
and what it is able to provide. And believe me, we will take
your admonitions, particularly with the uncertainty that we are
seeing out of the EPA greatly frustrating when we ask a state
to be able to put forward a plan and then the EPA sits in
judgment it is not good enough without guidance. That is
unacceptable.
To my ear in particular, I would like to let you know that
we have a lot of frustration on both sides of the aisle when it
comes to the regulatory bodies right now that are putting out
regulations under the legislative mandate of Congress but
exceeding that mandate. And there has to be a good solution, a
good piece of legislation, and a number of us are working on
that simply to be able to address getting it back to that
authoritative body. The EPA should not be writing legislation;
it should be fulfilling the legislation that Congress had
entitled it to be able to do and it is overreached.
So thank you, gentlemen, all for being here. I know that it
is no small effort to be able to come here and to be able to
participate in these. So as the Subcommittee continues to focus
on burdensome regulations that affect our farmers and ranchers
and small businesses, I would again like to be able to
reiterate how important it is to provide regulatory certainty
in relation to our nation's job creators.
[Whereupon, at 11:36 a.m., the Subcommittee was adjourned.]

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