LINCOLN — Snapping photos of livestock farms from an airplane is a legal and cost-effective way to help protect Nebraska and Iowa streams from runoff contamination, say officials with the U.S. Environmental Protection Agency.
The agency's aerial surveillance program came under scrutiny last week when Nebraska's congressional delegation sent a joint letter to EPA Administrator Lisa Jackson. The elected officials asked Jackson to reply by June 10 to a list of 25 questions, including whether federal law allows such surveillance.
On Friday, EPA officials in the agency's Region 7 office in Kansas City provided written responses to questions emailed earlier in the week by The World-Herald.
“Courts, including the Supreme Court, have found similar types of flights to be legal (for example to take aerial photographs of a chemical manufacturing facility) and EPA would use such flights in appropriate instances to protect people and the environment from violations of the Clean Water Act,” the agency said in response to a question about legality.
Sen. Mike Johanns, R-Neb., a former U.S. agriculture secretary, said Friday he remains highly doubtful the agency has congressional authority to act as an eye in the sky.
“They are just way on the outer limits of any authority they've been granted,” he said.
Nebraska's two senators and three representatives signed the letter at the urging of livestock producers who consider the flyovers an invasion of privacy and heavy-handed government intimidation.
The producers also worry that a greater EPA presence in the state will lead to more costly manure-control modifications on their farms, dairies and feedlots, said Chuck Folken, owner of a 7,500-head cattle feed yard near Leigh and former president of the Nebraska Cattlemen. Folken said he and many other producers find it easier to work with the Nebraska Department of Environmental Quality than with federal environmental enforcers.
“The state comes out and inspects us and watches us,” he said. “They (EPA officials) are overstepping what the state is doing and I think it's unnecessary.”
The flyovers are no more welcomed by livestock producers in Iowa, said Dal Grooms, spokeswoman for the Iowa Cattlemen's Association in Ames. The most common complaint she hears involves producers who have to spend money meeting one set of state regulations only to have the feds come in with a different set.
“We all want clean water,” she said, “but if you fine us these exorbitant amounts, suddenly you're putting people out of business.”
Livestock producers and their elected representatives also say they object to the EPA keeping the flyover program quiet until recent months. Johanns said the letter from the delegation is largely an effort to learn more about the program.
The EPA declined The World-Herald's request to interview a staff member knowledgeable about the flyover program. Instead, the agency provided written responses, parts of which are summarized below:
Surveillance flights began in 2010 in Iowa and 2011 in Nebraska. The EPA has conducted seven flights in Iowa and nine in Nebraska.
Though aerial surveillance is used by the agency in other parts of the country, the EPA has not flown over livestock operations in Kansas or Missouri, the two other states in Region 7.
It has focused on Iowa and Nebraska because those states have a greater number of what are called concentrated livestock feeding operations situated in watersheds with histories of contamination.
The planes usually maintain altitudes of 1,200 to 1,500 feet. The EPA alerts state environmental agencies before it takes to the air, but does not notify livestock owners.
Photos taken during a flight are evaluated to see if it appears livestock waste is being discharged into streams, ponds or lakes. The agency is looking for runoff of livestock waste, a potential violation of the federal Clean Water Act.
The EPA does not levy fines or take other enforcement actions against a livestock producer based solely on photos, the agency said. If the photos indicate potential problems, an inspection is done at the site to determine if violations have occurred.
“The flights have identified potential problems, and in some cases, serious contamination, that were subsequently investigated through on-site inspections,” the agency wrote.
So far more than 90 percent of the operations viewed by air have been in compliance. By eliminating the need for on-site inspections at these operations, the flyovers have saved money.
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