The U.S. District Court for the District of Montana ruled the U.S. Forest Service can continue to use aerial fire retardant to fight wildfires while waiting on a Clean Water Act permit. 

The ruling, which came May 26, comes out of the Forest Service Employees for Environmental Ethics v. U.S. Forest Service case where the advocacy group sought to stop the service’s use of the firefighting tool without the CWA permit. 

Judge Dana Christensen asked the Forest Service to update him every six months while it pursues the required permits to drop retardant.

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Former Cal Fire director and Mount Aukum resident Ken Pimlott, who also chairs the El Dorado County Fire Safe Council, states in a press release the use of the aerial fire retardant is critical in the Forest Service’s firefighting strategy, noting it reduces the spread and intensity of a wildfire. He adds the court’s decision will “literally save lives.”

“Taking this tool away would undermine the health and safety of our communities and cause significant economic harm to businesses navigating the constant threat of wildfire,” Pimlott comments. “Because the court rightfully chose to prioritize public safety, Americans across the West can breathe a sigh of relief.” 

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The group filed the lawsuit against the Forest Service in October. FSEEE claims the USFS dropped about three-fourths of a million gallons of fire retardant from 2012 to 2019 into U.S. waters without a National Pollutant Discharge system permit from the Environmental Protection Agency, which would allow the Forest Service to drop retardant in waterways when necessary. They claim to do so was a violation of the Clean Water Act, which helps regulate pollutant discharging into U.S. waters. 

In the case, various firefighting experts and stakeholders shared their opinions through an amicus brief that defended the use of fire retardants as needed to fight increasing and more frequent wildfires. 

Forest Service officials have said it would take about two years to secure a permit. 

After the ruling, President and CEO of the California Forestry Association Matt Dias released a statement asserting the decision made by the court was a victory for stakeholders and communities depending on the Forest Service’s use of fire retardant to fight catastrophic wildfires.

“Fire retardant is one of the most important tools we have in our toolbox, and the court’s decision to safeguard this tool was ultimately a decision to prioritize lives, land, businesses and forested environments,” Dias states. 

The FSEEE argues the ammonium-phosphate-based retardant is doing more harm to the environment than good for firefighting. The group maintains the ammonia inside the retardant is toxic to aquatic life and can cause toxic algae blooms due to fertilization from the product, disrupt the ecosystem and potentially kill fish in the process, among other environmental concerns.

Whether fire retardant is actually useful has come into question. Studies show it can slow a fire’s spread but it is best used in the morning when temperatures are cooler. Other factors of its effectiveness include wind, terrain, fuel type and slope. 

The Forest Service dropped nearly 53 million gallons of retardant on federal, state and private land in 2021. Community leaders in the Western U.S. claim use of retardant will save more lives and less property will burn, including mayor of the town of Paradise, Greg Bolin. Paradise was devastated by the 2018 Camp Fire, which burned more than 153,000 ares in Butte County, caused 85 deaths and more than $16 billion dollars in damage. 

“No one knows the damage that these fires can cause more so than communities like mine,” Bolin said. “We lost our town to one of the biggest fires in California history, so this case was very personal for us. 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.”

The case got so much attention, lawmakers introduced a bill 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, authored by California Representatives Doug LaMalfa (R-CA) and Jimmy Panetta (D-CA).