(KTXL) — A lawsuit filed by Forest Service Employees For Environmental Ethics (FSEEE) is seeking to see the United States Forest Service end the use of aerial firefighting retardants claiming it is not in line with the Clean Water Act.
The FSEEE is alleging that the USFS’s use of fire retardant on water is a pollutant and a National Pollutant Discharge System (NPDES) permit is needed under the Clean Water Act in order to drop pollutant’s into any navigable waters.
The lawsuit was filed on Oct. 11, 2022 with the United States District Court for the District of Montana Missoula Division.
What is the Clean Water Act?
According to the US Environmental Protection Agency, “(t)he Clean Water Act (CWA) establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters.”
The act was originally created in 1948 as the Federal Water Pollution Control Act and was expanded in 1972 to become the Clean Water Act.
Under the CWA the discharge of any pollutant from a point source into navigable water is unlawful. Point sources are “discrete conveyances such as pipes or man-made ditches.”
The FSEEE is claiming in their lawsuit that the USFD’s aircraft as point sources of the pollutant.
Intervention of California Lawmakers, Cities, and Counties
On March 14, Congressman Doug LaMalfa of California District 1 introduced the Fire Protection and Wildland Firefighter Safety Act of 2023 that aims to create an exemption for federal, state, local and tribal firefighting agencies to use fire retardant without an NPDES permit.
“Fire retardant is an essential tool in wildland firefighting, especially in the West,” LaMalfa said. “Not only is it absurd to try to take away that tool, it’s flat out dangerous.”
On March 9, the California Forestry Association joined several California cities, including the town of Paradise which was destroyed by the 2018 Camp Fire, in filling an opposing motion to intervene with FSEEE’s lawsuit.
“Maintaining healthy forests supports the economy in Northern California and beyond and safeguards communities at risk from catastrophic wildfire, but prevention is not enough,” Calforests President and CEO Matt Dias wrote in a statement. “We must be able to fight wildfires with everything we have, and limiting the U.S. Forest Service’s ability to so flies in the face of forest conservation and preservation.”
The USDA’s Nationwide Aerial Application of Fire Retardant on National Forest System Lands Draft Supplemental Environmental Impact Statement notes that between 2012 and 2019 the USFS dropped 102,362,031 gallons of retardant across 192,950,107 acres of National Forest System Lands.
