Arguments get heated in fire retardant case
The U.S. Federal District Court of Montana heard oral arguments April 17 for the Forest Service Employees For Environmental Ethics’ lawsuit against the U.S. Forest Service for the service’s discharging of fire retardant into national waters.
Of those making arguments, a coalition of firefighting experts and stakeholders gave their opinions through an amicus brief defending the use of fire retardants as needed to fight increasing and more frequent wildfires. Among them was former Cal Fire director and Mount Aukum resident Ken Pimlott, who chairs the El Dorado County Fire Safe Council and works part time for the county Office of Wildfire Preparedness. Pimlott was asked to give a declaration based on his experiences as a subject matter expert.
“Over the course of my 40-year career fighting fires, I have witnessed countless examples where the aerial deployment of fire retardant made a significant difference in our ability to protect public safety, communities, property and natural resources,” Pimlott states in the brief. “If the Forest Service were enjoined from the aerial deployment of fire retardant, it would dramatically disrupt the close coordination between federal and state governments in deploying aerial resources to respond to wildfires. This would result in significantly increased response times and would place an additional burden on state and local government aircraft, risking additional large fires that threaten lives and natural resources.”
In its lawsuit against the Forest Service, the FSEEE claims USFS dropped about three-fourths of a million gallons of fire retardant into U.S. waters from 2012 to 2019 without a National Pollutant Discharge System permit from the Environmental Protection Agency, a violation of the Clean Water Act which regulates discharging of pollutants into U.S. waters.
The FSEEE maintains the use of these retardants is doing more harm to the environment than good as a fire-fighting tool.
“Over the decades, they have kept trying to come up with a better chemical mousetrap, but they have never departed from the notion that somehow they can make water better for fighting fire and improve upon Mother Nature’s water, except there’s no evidence that it does,” said Andy Stahl, FSEEE executive director, to the Mountain Democrat.
Ammonia inside the retardant is toxic to aquatic life and the animals can be killed with a high enough concentration, Stahl maintained, adding it can cause toxic algae blooms due to the fertilization characteristic of the product.
Pimlott countered the ammonium-phosphate based retardant has not proven to be great in damage and harm indicated by the FSEEE and that processes for staying back from watercourses while firefighting help to minimize potential impacts of retardant.
“You can’t guarantee 100% but best management practices have changed over the decades to really make it a priority wherever possible to prevent retardant from being deposited into watercourses,” Pimlott told the Mountain Democrat.
The Forest Service used nearly 53 million gallons of the firefighting tool in 2021. More than half of that was dropped in California, where increasingly intense wildfire seasons and six-digit-acre wildfires are becoming more common, including the Caldor Fire that torched the Grizzly Flat community and national forest land all the way into the Tahoe Basin and skirted South Lake Tahoe.
“The area of discharge of fire retardant is one of many tools used by the Forest Service to fight fires,” said Alan Greenberg in court, representing the Forest Service in the case. “It’s an important tool in certain circumstances, but it’s typically not the primary tool the Forest Service uses. The Forest Service uses aerial discharge of fire retardant on only about 5% of the wildfires at site. 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.”
The Forest Service in court documents argue the only way to prevent retardant from being dropped or spilled into the waterways is to stop the use of it altogether – an action the service and other stakeholders say would not be in the best interest of the public.
“Today’s oral arguments conveyed a salient fact: fire retardants have played an integral role in stopping some of the most devastating wildfires in recent history — saving lives, businesses, and property,” argued Matt Dias, president and CEO of Calforest, in the brief.
“If this important tool is taken away at the federal level, the real-life consequences will be catastrophic. State agencies’ resources would be stretched far too thin, allowing wildfires to burn hotter and for longer periods of time — putting the lives of firefighters and residents of nearby communities at risk,” Dias continued. “Over the years, we would likely see our air quality continue to worsen with toxic smoke paired with a dwindling tree population that produces clean air. As businesses burn, jobs would be lost and local economies would struggle. The list goes on and on, which is why I hope the Court ensures we never have to live in that reality.”
Stahl said the Forest Service could increase buffer zones along waterways where retardant cannot be dropped. He also said use water as a firefighting resource would be more environmentally efficient and referenced a RAND Corporation study that found retardant should not be dropped where any water nearby a fire can be scooped up and dumped on the fire.
Pimlott countered by stating retardant is still more effective for building containment lines than water, as water desiccates quickly and is better used for hot spots.
“It doesn’t work well at all when you are pre-treating vegetation ahead of the fire,” Pimlott said. “That’s where retardant has a true benefit over water when the fire is moving quickly and you want to get far enough ahead of the fire to build a fire line in an area of treated vegetation that has material on it that will reduce the spread. You want to close that whole line ahead of the fire so that when it hits there, it will slow down.”
Forest Service officials have looked into getting a permit to discharge retardant into waterways, a process that could potentially take over two years.
In response to the prospect of the Forest Service not being able to drop retardant, lawmakers, including Representatives Doug LaMalfa (R-CA) and Jimmy Panetta (D-CA), introduced to congress the Wildland Firefighter Safety Act of 2023, which would create Clean Water Act exemptions for firefighting agencies for continued use of fire retardant. The bill has been supported by Representative Kevin Kiley and 23 other members of Congress.
This is not the first time the FSEEE and the Forest Service have engaged in heated debate. The watchdog nonprofit took the Forest Service to court in 2003 and 2008 for failing to provide adequate environmental analysis for fire retardant use.
After the series of lawsuits, the Forest Service mapped out exclusion areas where it would not drop retardants, contingent on public safety, which included buffers for waterways and vulnerable species habitats. The EPA said the service would not require a permit if those guidelines were met.
The Forest Services reported it had dropped more than 1 million gallons of retardant between 2012 and 2019 into exclusion areas 459 times, with retardant being dropped into water 213 of those times.
Support Local Journalism
Support Local Journalism
Readers around the Lake Tahoe Basin and beyond make the Tahoe Tribune's work possible. Your financial contribution supports our efforts to deliver quality, locally relevant journalism.
Now more than ever, your support is critical to help us keep our community informed about the evolving coronavirus pandemic and the impact it is having locally. Every contribution, however large or small, will make a difference.
Your donation will help us continue to cover COVID-19 and our other vital local news.