Friday, August 10, 2012

Does the EPA Need to Flyover Farms to Know Where They Are?

Recently, Indiana-Illinois Agri-News ran a good article on the topic of EPA flyovers. Jeannine Otto at Agri-News interviewed a local cattleman, who echoed the concerns from other livestock owners in Nebraska, Iowa, and elsewhere:
“If you’ve got issues, come to the door. Don’t be sneaking in with an airplane just because you’ve got the power of the government behind you,” said Steve Foglesong, a cattleman from Astoria in Fulton County.

“It doesn’t sit very well with me,” Foglesong said. “It seems to me to be a bit of a waste of taxpayers’ money.”

I was quoted in the article as well, discussing how a court might react to a farmer's challenge of its authority to take aerial photos of a farm:
Historically, when the courts look at this issue of whether people have a right to privacy under the Fourth Amendment, you can classify it into two categories. In their homes, that’s usually something that the courts have usually been protective of, but when you’re talking about if a business or industry has a right to privacy, courts are much less protective of that.
Readers of this blog are familiar with this topic already, as it has been discussed many times:
Silage vs. Curtilage; Questioning the EPA's Use of Aerial Surveillance;  and EPA Aerial Surveillance Under Fire. The entire article can be read here: EPA aerial surveillance draws ire of lawmakers.

This issue even impacted the debate on the 2012 Farm Bill. DTN Progressive Farmer reported that proposed amendments in both the US House and Senate both attempted curtail the EPA's use of flyovers as an enforcement tool.  To my knowledge, none of these amendments have survived (although it makes little difference since the Farm Bill's overall survival is still up in the air).

On a related note, a story by Tammy Webber of the AP titled: The EPA Can't Regulate Livestock Farms it Can't Find suggests that the EPA doesn't know what livestock farms exist outside of Washington D.C. Numerous persons quoted in the article lament the EPA's withdrawal of its proposed rule requiring CAFOs to report their existence and status to the EPA.  Articles like this fail to understand a fundamental truth about the Clean Water Act--the EPA has delegated authority to regulate CAFOs to the states.  The EPA is not the primary enforcement authority.  Therefore, if the EPA wants information about CAFOs in any given state, it should ask the state agency to which it has delegated its authority, not resort to flyovers or burdensome reporting obligations.  

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