Questioning the EPA's Use of Aerial Surveillance

A few weeks ago I wrote an article about the U.S. Environmental Protection Agency's (EPA) use of aerial surveillance to look for violations of the Clean Water Act. (EPA Aerial Surveillance Under Fire) I questioned whether the EPA's usage of aerial flyovers was both necessary from an enforcement perspective and legal under the Fourth Amendment's protections that people be free from unreasonable search and seizure.

The topic seems to have struck a nerve with farmers and cattle ranchers in Nebraska. Kristen Hassebrook, director of natural resources and environmental affairs for the Nebraska Cattlemen, told the Grand Island Independent that her organization expressed their concerns about flyovers to the EPA, but "we didn't get the response that we wanted." So they took their concerns to Nebraska's senators and congressmen.

The letter authored by Nebraska Senators Mike Johanns and Ben Nelson, and Representatives Jeff Fortenberry, Adrian Smith, and Lee Terry, followed.  The letter questions the EPA's authority to conduct these "inspections." The letter asks Administrator Jackson whether the EPA has used evidence from such flights as the sole evidence of violations, or whether corroborating on-ground evidence was also gathered. The letter asks the EPA to provide answers to a number of other questions, including:

• What criteria are used to identify operations for aerial surveillance?
• How many enforcement actions have resulted from the flights in Region 7?
• At what elevation are flights typically operating when images are recorded?
• Do these aerial surveillance flights ever disrupt livestock? Have any of the operations that have been subject to aerial inspections raised concerns with increased animal stress or noise?
• Do images ever record land or buildings not currently subject to regulation under the Clean Water Act or other applicable federal law?
• Do the images collected ever include residential buildings? If so, are those residences occupied by the responsible parties associated with the regulated facility?
• For how long are images kept?

Read the entire letter to the EPA here.  The Nebraska congressional delegation gave the EPA administrator until June 10 to respond.  If and when the EPA responds, I'll try to post the response here.