Federal judge says Forest Service pollutes waterways with fire retardant; allows use until EPA permit is obtained

A federal judge in Montana on Friday ruled that the U.S. Forest Service is violating the federal Clean Water Act when it discharges fire retardant into creeks, rivers and lakes while battling wildfires in 10 Western states, including California.

The ruling comes more than seven months after an Oregon-based environmental group filed a lawsuit against the Forest Service to prevent the federal agency from releasing fire retardant into federal waterways without a permit from the U.S. Environmental Protection Agency.

But in his ruling Friday, Judge Dana Christensen of the U.S. District of Montana allowed the Forest Service to continue using fire retardant while it obtains a National Pollutant Discharge Elimination System permit, a process that could take up to two years.

“There does not appear to be any genuine dispute that the (Forest Service’s) discharge of aerially deployed fire retardant into waters of the United States without an NDPES permit violates the (Clean Water Act),” Christensen wrote in his ruling.

Andy Stahl, the executive director of the Forest Service Employees for Environmental Ethics, said the ruling makes official the fact that the Forest Service use of fire retardant on occasion pollutes, creeks, rivers and lakes in National Forests.

“This is the first time the Forest Service as been found guilty of violating the CWA in regard to fire retardant,” Stahl said.

A spokesman for the Forest Service said Friday that the agency is committed to complying with the Clean Water Act while at the same time ensuring the safety of communities during wildfires.

“The Forest Service is working diligently with the Environmental Protection Agency on a general permit for aerially delivered retardant that will allow us to continue using wildfire retardant to protect homes and communities,” said the Forest Service’s Wade Muelhof in an email.

“We believe retardant can be and has been delivered without compromising public health and the environment,” he said. “We appreciate the court’s recognition of the important public safety issues involved in the litigation.”

Stahl’s organization has been challenging the Forest Service’s use of retardant for years. In one previous court battle, it sued the Forest Service to force it to publicly disclose its own toxicity analysis of retardant, Stahl said. In a second court case, he added, it sought to force the agency to conduct a more in-depth environmental study of the impact of retardant on federal waterways.

“In our two previous lawsuits the court ruled the Forest Service violated the National Environmental Policy Act and the Endangered Species Act,” Stahl said, adding that the latest Clean Water Act ruling represents a “trifecta” of environmental violations for the Forest Service.

In allowing the continued use of fire retardant, Christensen said an injunction preventing the use of fire retardant “could conceivably result in greater harm from wildfires — including to human life and property and to the environment — by preventing the USFS from effectively utilizing one of its fire fighting tools.”

Forest Service supporters, including representatives of several California counties and communities affected by wildfire, considered the ruling a victory. The group of supporters, which had filed an amicus brief opposing the lawsuit, released a coordinated statement after Friday morning’s ruling.

"Fire retardant has no substitute — not water, fuel breaks or ground crews. Prohibiting its use would harm forest conservation, threaten endangered species and impede our ability to save lives. I am glad the court recognized and acted upon the importance and urgency of this matter,“ Chief Brian Fennessy of the Orange County Fire Authority said in the statement.

Greg Bolin, mayor of Paradise, applauded the ruling. “We lost our town to one of the biggest fires in California history, so this case was very personal for us,” Bolin 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.”

Last month, during the opening arguments in the court case, the Forest Service admitted 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.

On Friday, Stahl, as he has in the past, questioned the effectiveness of fire retardant during wildfire, particularly today’s fast-moving, wind-driven wildfires that can propel flames hundreds of yards ahead of the fire line.

“ (Fire retardant) is only going to protect your home from a fire that doesn't threaten your home, a fire when there's no wind blowing,” Stahl said. “Basically, the bottom line is wind. Wind is what destroys homes.”

In his ruling, Christensen ordered the Forest Service to produce a status report every six-months regarding its progress toward obtaining an EPA permit. Stahl said the judge’s ruling was anything but a “get out of jail free card.”

He said his organization will be closely watching the EPA’s work on the Forest Service’s permit request. “We’re going to be engaging with the EPA in how this permit is written,” he said. “They can only permit pollution that doesn’t kill fish.”

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