Update: EPA Responds to Congressional Delegation's Flyover Questions

By: Megan Johnson Email
By: Megan Johnson Email


On Tuesday Senator
Mike Johanns also introduced
an amendment to the Farm Bill
that would ban EPA flyovers.

Read more HERE.

A letter from EPA Region 7 Administrator Karl Brooks addressed to Senator Mike Johanns includes answers to the more than 20 questions outlined in a letter signed and sent to the agency by Nebraska's congressional delegation two weeks ago.

Nebraska's senators and representatives asked for more information regarding flyover surveillance done by the EPA over confined animal feeding operations (CAFOs) like feedlots.

The EPA says they are using the Clean Water Act as authority to perform the flights, and says the agency, along with the USDA, shared that information with producers during an informational meeting in West Point back in March. The letter says staff from Senator Johanns and Representatives Smith and Fortenberry's offices attended that presentation.

The letter says the overflights are an efficient and cost effective way to screen large numbers of CAFOs, and says no enforcement action has ever been taken using only evidence from the flyovers.

In Nebraska six flights were completed in 2011 and three in 2012. The letter states that CAFO flyovers did not begin until March 2010 in Region 7, and not until March 2011 in Nebraska.

The EPA says the flights usually take place between 1,200 and 1,500 feet, and the agency does not believe it disrupts livestock.

The EPA says only photographs are taken, not video, and how long the images are kept depends on the enforcement type, but can be kept on file for as long as five years even when not used in enforcement action.

The delegation's letter also inquired as to whether or not residential buildings are photographed. Here are the EPA's answers:

Q16. Do images ever record land or buildings not currently subject to regulation under the Clean Water Act or other applicable federal law?

The elevation (above 1,200 feet) at which EPA Region 7 flights occur make it impossible to eliminate all areas outside the animal feeding operation from being photographed. Moreover, the angle sometimes necessary to assess an operation (the plane rarely flies directly over the facility because the operation is viewed through a cockpit window) is such that the images are taken from an angle that may capture some land and buildings beyond the facility. Images taken from the ground would have a similar tendency to capture land and buildings on the horizon. However, like images taken on the ground and since the EPA is seeking the greatest clarity and detail possible in every image, every effort is made to ensure that the sole subject of every photo is the production or land application areas of an animal feeding operation. Also like photos taken from the ground, the images may unintentionally capture areas that are not subject to CWA regulation.

Q17. Do the images collected ever include residential buildings?

Yes, EPA Region 7 has collected images that include residential buildings. In some instances residential buildings are located within, or immediately adjacent to, animal feeding operations. Consequently, there are instances where residential buildings are captured in the images. Similar to the discussion immediately above, there are also instances where the photographer may take a photo at a fairly long distance or at angles that may include entire sections of land that may have multiple structures and/or facilities not associated with the subject of the photograph.

Q18. If so, are those residences occupied by the responsible parties associated with the regulated facility?

As mentioned above, the purpose of the Region 7 flights is to screen animal feeding operations and identify which ones require an on-the-ground inspection that will determine compliance with the CWA. Who resides within a specific residence is not a part of this screening process. Instead, EPA Region 7 attempts to identify who owns and/or operates the animal feeding operation - those responsible for the operation's compliance with the CWA. In a majority of the instances where there were residential buildings adjacent to, or within the boundaries of an animal feeding operation, EPA Region 7 ultimately found that these structures were occupied by either the owners or operators of the animal feeding operation.


On Tuesday Senator Mike Johanns introduced an amendment to the farm bill that would ban the EPA's use of aerial surveillance.

"This is a trust issue, and farmers and ranchers don't trust EPA doing low-level surveillance flights over their operations," Johanns said in a press release. "EPA's surveillance program only adds to the deficit of trust this closed-door agency has earned of late. It's past time for Congress to put an end to EPA's use of aerial surveillance."

“The Congressional delegation wrote EPA Administrator Jackson because the public deserves detailed information about the agency’s use of aerial surveillance – not just in Nebraska but nationwide," says a spokesperson for Johanns on Wednesday. "To date, no one responsible for the national aerial surveillance program has responded.”

Should the EPA be able to do aerial surveillance to ensure farmers aren't polluting?

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