An aerial fire retardant is widely used in Northern California. Is it harming the environment?

The lawsuit states that the drops have occurred without a National Pollution Discharge Elimination System permit from the Environmental Protection Agency.

The suit also documents 138 intrusions into threatened or endangered species habitat. The environmental group seeks to “enjoin aerial application of retardants into navigable waters unless and until the Forest Service has a legal (environmental) permit to do so.”

FSEEE Lawsuit.pdf

The data for those accidental “intrusions” into waterways, which the Forest Service previously called “misapplications,” is drawn from the an environmental impact study conducted by the agency.

Forest Service officials say they are committed to compliance with the Clean Water Act and that in the last 10 years, less than 1% of retardant drops affected waterways across the country.

Forest Service Environmental Impact Statement.pdf

In a statement to The Press Democrat, the Forest Service said it could not comment about “pending litigation.” However, the agency pointed out that it is working with the EPA to obtain a general permit for aerially deployed retardant.

The agency added that the EPA would not pursue Clean Water Act enforcement for two years while the Forest Service applies for its general permit and abides by the terms of a Feb. 16, 2023, compliance agreement between the two agencies.

Longtime battle

The Oregon environmental group that filed the lawsuit has been wrangling in court with the Forest Service since 2003, when it sued the agency for failing to study the impact of its use of fire retardant in accordance with the National Environmental Policy Act and the Endangered Species Act.

Andy Stahl, executive director of Forest Service Employees for Environmental Ethics, a national forest advocacy group made up of concerned citizens and current, former and retired Forest Service employees, said years of legal challenges have resulted in the Forest Service conducting its most complete to-date environmental study of accidental drops into waterways.

For example, in Appendix D of the environmental study, the Mendocino National Forest received an estimated 412 aerial drops, for a total of 741,948 gallons of retardant, between 2012 and 2019.

Over that period, aerial fire retardant was used in 136 fires in Mendocino forest.

One of those fires was the July 2018 Ranch Fire, part of the Mendocino Complex Fire, which also included the River Fire. The Ranch Fire alone, according to the environmental study, saw 30 accidental aerial drops, 21 of which were directly into waterways.

The Forest Service estimates that nearly 11,921 gallons went into the water.

“The Forest Service continues to believe that in essence the sanctity of its firefighting mission, which it views as a moral war against fire … is paramount and trumps every other consideration,” Stahl said.

In a statement from the Forest Service’s press office, the agency said that over the past 10 years, approved fire retardant products have reduced the amount of ammonium content by 30% compared to formulations approved prior to 2011. The agency said fish toxicity requirements also were strengthened recently to encourage less toxic products.

But Stahl questioned the wisdom and effectiveness of using retardant for many wildfires, particularly those driven by strong winds that blow fires well past retardant lines. He said the Forest Service has not conducted any controlled studies, outside the lab, that prove the effectiveness of deploying retardant.

“There’s no scientific evidence that retardant changes wildfire outcomes,” Stahl said.

‘Perfect storm’

Don McEnhill, the Russian Riverkeeper’s executive director, said he’s “glad” someone is raising questions about the use of ammonium-based fire retardant on the ever-increasing number of wildfires and mega-wildfires in Northern California and around the West.

The last few years of North Bay wildfires have exacerbated those concerns, he said.

“There should be concern around the increasingly heavy use of ammonium phospate-based fire retardant,” McEnhill said. “Hopefully, it will lead to more benign or safer solutions.”

McEnhill said when he learned of the lawsuit late last year, he thought of the possible contamination of local “high-quality salmon habitat” and extremely sensitive species that might be affected by it. Since 2015, Russian Riverkeeper has been paying closer attention to toxic algae growth in salmon and steelhead waterways, he said.

The algae growth in streams and creeks has been caused by extremely low flows, very hot temperatures and increasing amounts of nutrients, something McEnhill called a “perfect storm.”

An infusion of ammonium phosphate fertilizer only adds to the problem, he said.

McEnhill said there’s always some algae in waterways, but 2015 was the “first real toxic outbreak” of the species of algae that’s common in the Russian River.

Newell, Russian Riverkeeper’s restoration director, said adding ammonium phosphate to waterways increases nutrient loads that give rise to algae bloom.

“All that algae is really a large biomass of decaying material, and that takes the oxygen out of the water,” Newell said. “That really hurts fish or other creatures in the water. Then, late in summer that algae can be toxic to animals and people.”

McEnhill agreed with Stahl that tougher questions should be asked about the effectiveness of fire retardant and aerial deployments that, in some instances, are referred to as “CNN drops.”

"They’re acting like this is the silver bullet, and any firefighter will tell you they don’t work with silver bullets; you ask any of them,“ he said.

Cal Fire drops

Roughly half of fire retardant used by the Forest Service in the United States is deployed in California. But that does not include retardant used by Cal Fire to fight wildfires in the state agency’s jurisdiction.

Cal Fire officials told The Press Democrat they have deployed 7.1 million gallons of fire retardant to battle some of the biggest wildfires since 2015.

Cal Fire officials had not responded to requests for comment about the Forest Service lawsuit filed last week, and they were unable to immediately provide answers to a more specific list of questions submitted Wednesday.

The lawsuit filed by Stahl’s organization is scheduled for a hearing April 24 on a motion for summary judgment, seeking an injunction prohibiting the Forest Service from dropping fire retardant into waters without a Clean Water Act permit from the Environmental Protection Agency (EPA).

The Forest Service argues that Stahl’s group has not made the case for an injunction and that the court should not issue one while the agency is seeking a permit from the EPA, a process that could take at least two years.

Meanwhile, Republican lawmakers in Washington have introduced a bill that would amend the Clean Water Act to exempt the Forest Service from requiring a permit to deploy retardant in federal waterways.

House Resolution 1586 — known as the Forest Protection and Wildland Firefighter Safety Act of 2023 — was heard on March 23 before the U.S. House Committee on Natural Resources Subcommittee on Federal Lands.

Republican supporters of the bill blasted the lawsuit filed by Forest Service Employees for Environmental Ethics, saying it would cripple the Forest Service and its ability to fight wildfires.

During the hearing, Chris French, deputy chief of the Forest Service, said that while his agency agrees that “fire retardant is an essential tool for protecting communities, forests and our firefighters,” the (Biden) administration cannot support the bill.“

French pointed out that in the Western United States, National Forest lands are where many rivers originate, and they supply water to nearly 90% of those served by public water systems, either directly or by capturing it and filtering it into local aquifers and wells.

“The administration does not, however, believe that an amendment to the Clean Water Act is necessary in light of the administrative steps that are being taken,” he said.

French said the Forest Service is “working collaboratively” with the EPA on getting a National Pollution Discharge Elimination System general permit.

Rep. Mike Thompson, D-St. Helena, says he has not decided whether he supports the bill. Thompson said he’s long heard concerns about what’s in fire retardant and its potential for having adverse impacts on waterways, but the wildfires themselves and the things that burn in them also create many environmental problems.

“We've just been through incredible fire disasters, not only in our area but across the state and then in other states, and I don't want to take any tools away from the Forest Service in fighting these fires,” he said.

“I want to hear all sides of the story,” Thompson said, adding that he’s expected to meet soon with Forest Service officials.

Other options?

Stahl said the Forest Service and fire retardant supporters are attempting to portray his lawsuit as a move to completely ban the use of fire retardant.

He said the judge has “quite a broad range of remedies available,” and one of the outcomes could be a ruling to increase the buffer zone alongside a creek or other waterway where no retardant can be dropped.

“We've suggested that if 300 feet wasn't enough then let's double it to 600 feet,” Stahl said. “We'd like a solution here, gave the judge a solution, that allows the continued use of retardant but provides better assurance that it's done legally and doesn't end up in the water.”

Newell said that during the Walbridge Fire, when the property owner asked him what could be done about all the fire retardant on her property and in the creek, he knew there was little he could do.

What’s more, there were more pressing environmental issues to address. These included massive fire breaks cut with bulldozers, post-fire cleanup operations, salvage logging of burned redwood trees, and the heavy equipment used for rebuilding homes and structures. This would all disrupt the soil and potentially lead to erosion that impacted creeks and streams.

Then there were the chemicals and biological contaminants, solvents, paints and any other toxic substances stored in homes and structures that somehow had to be kept out of waterways using waddles and other methods.

“I would really love to see more alternative materials used. I know they're out there,” Newell said.

“We should definitely invest in the kind of fire retardant that's not going to be a fertilizer and cause problems in water quality. I think there needs to be really clear regulations on where you cannot drop, like don't drop in the streams.”

You can reach Staff Writer Martin Espinoza at 707-521-5213 or martin.espinoza@pressdemocrat.com. On Twitter @pressreno.