Forest Service admits some Clean Water Act violations with use of aerial fire retardants, but says they are still an important tool

A U.S. Forest Service attorney on Monday admitted in federal court that the agency has at times violated the Clean Water Act of 1972 through aerial deployment of fire retardant while fighting wildfires.

But the agency said the use of fire retardant is only one of the tools in its toolbox for fighting wildfires and that its use has had minimal impact to federal waterways, such as creeks, streams and lakes.

The exchange came during opening arguments in a lawsuit filed in U.S. District Court in Montana aimed at preventing the Forest Service from dumping fire retardant into National Forest waterways.

The lawsuit, filed by an Oregon-based environmental group, argues that the Forest Service for years has violated the federal Clean Water Act when it accidentally drops ammonium phosphate-based retardant in waterways. Ammonium phosphate, the key ingredient in fertilizer, is toxic to aquatic life such as fish, the lawsuit argues.

As part of the lawsuit, Judge Dana Christensen of the U.S. District of Montana heard oral arguments in a motion for summary judgment filed by the Forest Service Employees for Environmental Ethics, a national forest advocacy group made up of concerned citizens and current, former and retired Forest Service employees.

The environmental group is asking the judge to issue an injunction that orders the Forest Service to stop dumping retardant in waterways, or to take further steps to decrease such “intrusions.”

The Forest Service, however, argued that doing so would cripple its ability to fight wildfires.

“What (the environmental group) asks the court to do is first declare that the Forest Service admits that it's in violation of the Clean Water Act,” said organization attorney Timothy Bechtold. He then asked the court to grant an injunction that prevents the Forest Service from dumping fire retardant into federal waterways.

Alan Greenberg, an attorney with the U.S. Department of Justice representing the Forest Service, argued that the use of fire retardant is one small part of the agency’s wildfire arsenal and that very little of it goes astray.

“The Forest Service uses aerial discharge of fire retardant in only about 5% of the wildfires it’s fighting,” Greenberg said. “And in those 5% in which the Forest Service aerially discharges fire retardant, less than 1% of those discharges find their way to waters of the United States.”

Greenberg spent a significant amount of time during the hearing arguing that the environmental group had presented insufficient evidence of “ongoing or threatened future injuries” from the use of retardant. He also argued that it was too early to issue remedies such as an injunction because there were too many “genuinely disputed material facts.”

“There's a fundamental factual disagreement,” he said. “FSEEE doesn't believe that fire retardant has any beneficial use in suppressing wildfires. Obviously, the Forest Service disagrees.”

The lawsuit, which was filed Oct. 11, 2022, claims that the U.S. Forest Service has dumped 761,283 gallons of fire retardant into “navigable waters” on federal lands on at least 459 occasions between 2012 and 2019. Those figures come from an environmental study recently prepare by the Forest Service.

The 459 figure represents “intrusion reports” documented by the Forest Service, and each report may consist of more than one drop. The agency defines as intrusion as the “intentional or unintentional application of aerial fire retardant into an aerial retardant avoidance area.”

A least 117 of the 459 intrusion reports were from drops occurring in national forests in Northern California, such as Mendocino, Six Rivers, Klamath, Lassen and Shasta Trinity, according to a Press Democrat analysis.

The plaintiff in the case is asking the judge to declare that the Forest Service violates the Clean Water Act when it dumps retardant in waterways. The landmark 1972 legislation establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters.

One of the "remedies“ the environmental group has offered up is the implementation of a more aggressive buffer zone on either side of a creek, stream or other waterway. The current buffer on either side of a waterway is 300 feet, except in cases where human life or public safety is at risk. Bechtold suggested increasing the buffer zone to size determined by the Forest Service.

Greenberg argued that increasing the buffer to 600 feet would threaten lives and property.

“A 600-foot buffer on either side of a creek is essentially almost a quarter mile, and if you have a quarter mile gap in a fire retardant line, that is very unlikely to be an effective suppressant,” he said. “Fire will move through that quarter mile gap and greatly diminish the effective use of fire retardant.”

Andy Stahl, the executive director of the Forest Service Employees for Environmental Ethics, argues that the Forest Service has no evidence from scientific studies of actual fires that shows the use of fire retardant is effective at stopping today’s massive wildfires.

During the hearing, Forest Service supporters strongly disagreed. Christensen heard testimony from a representative of a coalition of “stakeholders’ that filed an amicus brief on April 14, in support of the Forest Service.

The group included the California Forestry Association, the Town of Paradise; Butte and Plumas counties; American Forest Resource Council; National Alliance of Forest, and others.

“I submit that anecdotal evidence is evidence,” said Julian Ellis, the coalition representative. “We have men and women who live and breathe this industry declaring that they use fire retardant. It is effective. Is it a silver bullet? Absolutely not. Is it a bullet? Yes, it is, and it is effective.”

The Forest Service said Monday that it is in the process of obtaining a Clean Water Act permit that would authorize the discharges of retardant into waterways. But the Forest service has stated that process, which would involve lengthy study, could take two or more years to complete.

Ellis argued that a Feb. 16, 2023, compliance agreement between the Forest Service and the federal Environmental Protection Agency provides the necessary administrative guidance to minimize the impact of fire retardant on waterways until the Clean Water Act is granted.

Stahl and Bechtold disagreed.

“The federal facilities compliance agreement doesn't allow the EPA or the Forest Service to override the Clean Water Act,” Bechtold argued. “The president can … create exemptions from the Clean Water Act for public safety. The EPA cannot and the Forest Service cannot.”

After almost two hours of oral arguments, Judge Christensen ended the hearing. While he did not say when he would issue a ruling on the motion for summary judgment, Christensen recognized the need for a timely decision.

“I'm feeling some time urgency here as it relates to this motion for summary judgment to the injunctive relief,” he said. “Maybe I shouldn't be, but I have to tell you I am, because I'm envisioning fire season just around the corner somewhere in the Western United States.”

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