EPA flights raise red flags

Rik Dalvit/For the Capital Press

Editorial

The Environmental Protection Agency has admitted that it uses fixed-winged aircraft to inspect farms and ranches for violations of the Clean Water Act. It's another public relations coup for the agency that proposed regulating farm dust and "crucifying" noncompliant oil companies.

The EPA says it's been conducting the surveillance flights for more than 10 years, and says the program isn't a secret. It's just something it doesn't talk about.

The inspection flights made headlines recently when the Nebraska congressional delegation, acting on complaints from constituents, sent a letter to the agency asking for details on the aerial program.

"As you can imagine, this practice has resulted in privacy concerns among our constituents and raises several questions for us," they wrote.

It raised several questions and concerns here at the Capital Press, too. For its part, the EPA has offered few answers.

The EPA wouldn't release specific details about the program, including how often planes take flight, if they're used in the absence of a specific complaint, the cost of the program, what happens with photographs that are taken from the air, types of aircraft used or the industries targeted.

"The EPA as an agency, whenever it comes to anything related to our work in enforcement, we're very tight-lipped about when we do it and how we do it. ... It's like asking the FBI how they conduct surveillance," said Mark McIntyre, EPA Region 10 spokesman in Seattle.

Contrary to popular conspiracy theories, the FBI is required to have probable cause before it opens an investigation. It appears the EPA uses the overflights to look for evidence that would warrant an on-ground inspection.

Dairy industry representatives are aware of the program, and say in the Northwest the EPA conducts the flights in the spring, rotating annually between Idaho, Washington and Oregon. EPA confirmed it doesn't use flights in every state. There are no flights, for example, in California.

The EPA says reports that the agency uses unmanned drones are inaccurate. In our opinion, being spied on and photographed by live government flight crews is only slightly less Orwellian than being surveilled by unmanned drones.

The EPA and attorneys interviewed by the Capital Press and other media outlets say case law supports gathering evidence of possible violations in plain view from public air space.

Sen. Mike Johanns, R-Neb., a former agriculture secretary, isn't as sure. He doesn't think Congress gave the agency that authority in the Clean Water Act. He and his colleagues have asked EPA for more information.

Legal or not, government agents conducting aerial surveillance and snapping photos of private property without probable cause gives us pause. The secrecy surrounding the flights doesn't help. We look forward to whatever clarification EPA provides the Nebraska delegation.

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