U.S. District Judge Dana Christensen ruled in our favor in our lawsuit challenging Forest Service use of aerial fire retardant, affirming that dumping the toxic slurry into water violates the Clean Water Act and that the Forest Service must acquire a Clean Water Act (EPA) permit to legally dump retardant into water.
Under the Clean Water Act, the permit must assure that water quality standards are met when retardant is dumped into water, and those standards, among other requirements, call for fishable waters. Since fishable waters depend upon sufficient dilution of the pollutant in question, the EPA permit must protect water from retardant dumps that create concentrations sufficient to kill fish.
“It’s certainly a good first step,” said FSEEE Executive Director Andy Stahl.
Nonetheless, Judge Christenson’s ruling allows the Forest Service to continue using retardant as it seeks a permit to do so legally.
Timothy Ingalsbee, a former wildland firefighter, offered an informed perspective on our lawsuit: “Aerial retardant is effective over a narrow range of conditions, and the windows of opportunity for those conditions are narrowing each year due to climate change.”
Retardant is most effective when used in the cool of the morning on relatively level terrain with sparse vegetation during the initial attack of small fires burning near communities, Ingalsbee said. Ground crews must be nearby to take advantage of the reduced rate of spread by cutting containment lines; otherwise, the fire may slow only temporarily and then keep spreading.
And yet, Ingalsbee said, research has shown that retardant is more often dropped in the heat of the afternoon during the extended attack of large fires burning on steep, densely forested slopes in remote areas where ground crews can’t reach or when fire behavior is so intense that it’s too dangerous for ground crews to engage.
“The Forest Service feels pressure to do something, as much for public relations as any operational benefit,” he said. “But it’s just a big airshow.”
After decades of refusing to seek a permit under the Clean Water Act, the Forest Service finally applied for a permit shortly after we filed our lawsuit. Judge Christensen ordered Forest Service officials to report every six months on their progress in obtaining the permit and complying with requirements of the Clean Water Act.
