A federal judge ruled the U.S. Forest Service (USFS) can continue using fire retardant despite violating the Clean Water Act (CWA), while the agency obtains a discharge permit.
U.S. District Judge Dana Christensen in Montana ruled on May 26 that Forest Service Employees for Environmental Ethics (FSEEE) “failed to demonstrate that the public interest would not be disserved by a permanent injunction” with their litigation.
FSEEE filed suit in 2022, contending USFS dropped fire retardant directly into national forest navigable waters on 459 occasions. The group sought a permanent injunction, asserting the use of fire retardant will increase, along with the discharge into navigable waters.
Christensen said although the injunction would allow the discharge of fire retardants, it was unclear if USFS could completely avoid CWA violations. The injunction “could conceivably result in greater harm from wildfires—including to human life and property and to the environment.”
According to the Associated Press, USFS has applied for a National Pollutant Discharge Elimination System permit with the Environmental Protection Agency that would allow it to continue using fire retardant. The permit process could take several years.
Andy Stahl, executive director of FSEEE, asserted that using chemical fire retardants is ineffective but said the permit was a “good first step” and could require tighter restrictions. Christensen said the claims by FSEEE that retardant is ineffective are “disputed” and the solutions proposed by the organization, such as a 600-foot buffer, would create a significant burden.
Several agriculture and forest organizations, county governments and the city of Paradise, CA—which was destroyed by the 2018 Camp Fire—filed an amicus brief in the case. Greg Bolin, mayor of Paradise, applauded the decision and said, “Our brave firefighters need every tool in the toolbox to protect human lives and property against wildfires, and today’s ruling ensures we have a fighting chance this fire season.”
Jamie Johansson, president of California Farm Bureau, said farmers and ranchers rely on agencies to use every tool possible to fight wildfires, and the continued use of “aerial fire retardants will save the lives of livestock, preserve grazing operations, and protect our rural agricultural communities from peril.” — Charles Wallace, WLJ editor
