An environmental group composed of current and former U.S. Forest Service (USFS) employees has filed a suit alleging fire retardant used to fight wildfires is inadvertently polluting waterways in violation of the Clean Water Act (CWA).
Forest Service Employees for Environmental Ethics (FSEEE) filed a lawsuit in the U.S. District Court for the District of Montana, contending USFS dropped fire retardant on at least 459 occasions. The group claims the agency dropped hundreds of thousands of gallons from aircraft between 2012-19 “directly into national forest navigable waters.” Court documents state there were 138 intrusions into threatened and endangered species habitats from 2012-19.
“If fire retardant enters a waterway, direct effects include lethal and sublethal effects on aquatic species,” court documents said. “These could include mortality of organisms, change in abundance and composition of aquatic communities, or adverse impacts to habitat.”
The suit states USFS is required to obtain a National Pollutant Discharge Elimination System (NPDES) permit under the CWA, but USFS asserts that a June 23, 2011, letter from the Environmental Protection Agency (EPA) excuses the agency from obtaining a permit.
FSEEE contends an EPA opinion “cannot amend the (CWA), which requires a NPDES permit for the discharge of fire retardant from aircraft into waterways.” The suit continues that discharges of retardant pollutants from aircraft into waterways “is continuous, ongoing, and unpermitted, in violation of the CWA.”
FSEEE brought on a lawsuit in 2008. In 2010, the U.S. District Court for the District of Montana ruled USFS violated the National Environmental Policy Act. In response, USFS adopted a policy of establishing buffer zones around waterways and habitats for some threatened, endangered and sensitive species, except for cases where human life or public safety is threatened, in a 2011 final environmental impact statement (EIS).
In 2022, USFS issued a draft supplemental EIS (SEIS) with updated language and procedures for approving the use of new aerial retardant products in compliance with the Endangered Species Act and monitoring requirements. The SEIS determined in the updated risk analysis that ingredients in fire retardant may affect 57 threatened and endangered aquatic species and are likely to adversely affect an additional 32 aquatic species.
Fire retardant contains inorganic fertilizers such as ammonium phosphates and other inorganic salts like magnesium chloride. However, the SEIS states that over the past 10 years, “Approved products have reduced ammonia content by 33 percent compared with formulations approved prior to 2011.”
FSEEE contends in the suit that the application of fire retardant is increasing, “suggesting that more retardant will be discharged to navigable waters in the future.” The group is asking the judge to compel USFS to comply with applicable environmental statutes and prevent irreparable harm.
“It’s simply too toxic at the levels used fighting fires,” Andy Stahl, FSEEE’s executive director, told The Associated Press.
Stahl, since 2012, has contended that fire retardants do not work to save homes and told several news outlets they are ineffective.
“Its use might be justified if retardant made any difference to fire outcomes. There’s no evidence it does,” Stahl told E&E News. “That makes the environmental trade-offs not worth it.” — Charles Wallace, WLJ editor
