U.S. EPA's use of aerial surveillance to nab Clean Water Act violators on Great Plains farms isn't sitting well with Nebraska farmers and lawmakers.

The state's congressional delegation criticized the practice in a letter last week to EPA Administrator Lisa Jackson.

"I think, from the constituents' standpoint, they feel there's something weird about this, that somewhere in the sky there's an airplane, and they feel spied upon," Sen. Mike Johanns (R-Neb.) said in an interview this week. "It was so secretive. ... It's just so EPA to do it this way. It's so infuriating."

EPA flyovers are aimed at finding confined-animal feeding operations (CAFOs) and animal feeding operations (AFOs) that may be sources of water pollution so inspectors can pay visits. The agency says it's been doing them for nearly 10 years.

"Aerial over-flights are a cost-effective tool that helps the agency and our state partners minimize costs and reduce the number of on-site inspections across the country as the agency focuses on areas of the greatest concern," EPA said in a statement.


The flyovers in EPA Region 7 -- which includes Nebraska, Iowa, Kansas and Missouri -- began in 2010, said Kris Lancaster, spokesman for the regional office in Kansas City, Kan. Three flights were completed in 2010 in Iowa. In 2011, the region did five flyovers in Iowa and six in Nebraska. This year, the agency has done one in Iowa and three in Nebraska.

"The flyovers are part of Region 7's effort to evaluate animal feeding operations in areas where there are high numbers of facilities or there are watersheds impaired by pollutants that could be attributed to animal feeding operations," said Lancaster, who added that his office is working on a response to the Nebraska lawmakers.

If EPA sees something suspicious from the air -- an apparent discharge of manure into a waterway, for example -- the agency follows up with an on-site investigation.

The flights have led to violation notices being issued in only a handful of cases, EPA said. Overflights contributed to two penalty orders out of eight given to CAFOs in Region 7 in 2010, Lancaster said. Flyovers contributed to all four CAFO penalty orders given by Region 7 in 2011, he added, while this year flyovers were involved in four out of five penalty orders.

The EPA spokesman noted that during aerial surveillance, the "great majority" of producers were found to be in compliance with the Clean Water Act and not discharging into local waterways.

While all the flights were done with a four-seat Cessna aircraft -- a propeller plane -- they've prompted several rumors over the past two weeks that the agency is using spy planes to gather information.

Though the flights have been going on for a few years, Johanns and other lawmakers learned of the practice in a recent meeting with Nebraska Cattlemen, a trade group.

Rep. Jeff Fortenberry (R-Neb.) said in an interview that he heard the planes were "military-style aircraft." "Why is the EPA using drones to spy on cattle ranchers?" asks one of several headlines online.

The Nebraska lawmakers are looking for answers from EPA to several questions about the frequency with which the agency uses the planes and how photographs taken from the sky are used in enforcement actions.

In an interview, Sen. Ben. Nelson (D-Neb.) said he wants to know why the agency is doing blanket flyovers as opposed to targeting different farms and operations.

"Just to fly around and surveil everything raises a lot of concerns and questions," he said.

Is it legal?

The lawmakers question whether EPA has legal authority to take such photographs.

Courts have found similar flights to be legal. In 1986, for example, the Supreme Court held that EPA's aerial surveillance of a Dow Chemical Co. facility in Michigan was not an unlawful search and seizure as defined in the Fourth Amendment.

But Kristen Hassebrook, director of natural resources and environmental affairs at Nebraska Cattlemen, said she had difficulty comparing EPA's surveillance of CAFOs with that of chemical manufacturing facilities.

"A livestock operation is very different than the smokestack and roof of a chemical manufacturing plant," Hassebrook said.

"We literally live on the same property where our animals live," she said. "The thought that EPA feels they have the automatic authority to do whatever it wants, flying around where we live. ... Do you really want the government at any time to be flying over anyone's home and be taking pictures and not telling you they have the pictures?"

Hassebrook said that while her group only recently brought its concerns to Washington, Nebraska ranchers have known about the flights since last year, when EPA inspection reports received by producers began including aerial photographs.

She blasted the agency for taking an "antagonistic" approach with cattle farmers and said its efforts have in a way undermined what the state Department of Environmental Quality is doing. In Nebraska, the state has been delegated authority to enforce the Clean Water Act and carries out its own inspections of CAFOs.

She praised the Department of Environmental Quality, saying it collaborates with producers.

EPA staffers "don't need these flyovers to find out who they might want to visit because the state entity is doing all the work," Hassebrook said. "They're undermining the work and doubling up on state regulations and state cost."

"We pay for it twice," she added. "To double up on the same thing without any form of coordination is sort of a rub on producers."

When asked about coordination with the state, EPA spokesman Lancaster said the agency alerts the state environmental agencies, but not landowners, before each flyover. The Nebraska DEQ did not return a call requesting comment.

Enviro surveillance flights

The idea of using unannounced flyovers as a tool to catch Clean Water Act violators is not new. Nonprofit environmental groups have long used photographs to prompt enforcement actions and back up claims in lawsuits.

LightHawk, a group of volunteer pilots based in Wyoming, has been donating flights to environmental groups since 1979. Bev Gabe, communications manager for the organization, said flyovers let environmentalists see private, remote land that can't be seen from the ground.

The group donates pilots for CAFO overflights in Illinois, Michigan and Maryland.

"You'll see a manure lagoon that is sort of over-spilling its boundary. There's been too much put into it, and it's spewing off into the field," Gabe said. "Sometimes you'll see sources of waste going into a local watershed that haven't been shored up. You can see it pretty clearly from the air."

While the Midwest is getting the most attention of late, it isn't the only region of the country where EPA has done overflights. On its website, the agency touts that it used aerial surveillance and an on-site inspection to document water pollution from a Maine dairy farm in 2006. The farm later was issued Maine's first Clean Water Act permit.

Fortenberry said he believed EPA's use of aerial surveillance over the past few years in Region 7 was part of a wider culture shift at the agency.

"You certainly hear a lot of complaints, not just from agriculture but other industries, that there's been a shift from the idea of partnering for compliance for health and safety and well-being of the environment to one of enforcement, to gotcha," he said.