Representatives Doug LaMalfa (R-CA) and Jimmy Panetta (D-CA) have introduced a bill to Congress that would create Clean Water Act exemptions for federal, state and local firefighting agencies to continue using fire retardant to fight wildfires while its environmental impacts are considered in a federal lawsuit.

Fire retardant, which is dropped from firefighting aircraft onto forests, structures and grassland, is used to contain or slow the spread of wildfires, but its use is currently being challenged by the Forest Service Employees For Environmental Ethics in a lawsuit against the U.S. Forest Service. The suit was filed Oct. 11, 2022, in the Federal District Court of Montana.

The suit claims more than 761,282 gallons of retardant were discharged into national forest waters between 2012 and 2019. The Forest Service reported using nearly 23 million gallons of retardant nationwide in 2021.

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FSEEE’s suit argues such retardant, used more frequently in fire seasons seeing larger fires, is a pollutant due to its inorganic fertilizers such as ammonium phosphate or inorganic salts and not in line with the Clean Water Act.

Studies and reports show the firefighting tool could have adverse effects to habitat. The Forest Service conducted an environmental impact study in 2011 that found retardant was a high risk to rodents, insects and amphibians and can affect water quality in ponds and pools without flowing water and no chance of dilution, leading to excessive nutrient production and causing algae to flourish and starve water of oxygen.

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Other adverse affects found the ammonia in retardant damages organs and gills in aquatic life and can affect their reproduction success in addition to being fatal. Retardant is also known to cause invasive plant species to grow faster than native plant species, which can lead to more wildfire fuel in the dry summer season.

The Clean Water Act regulates discharges of pollutants into U.S. waters.

FSEEE maintains a National Pollutant Discharge System permit from the Environmental Protection Agency is needed to drop retardant near waters.

The office of LaMalfa claims it could take years before such a permit is granted, the reason why the Forest Protection and Wildland Firefighter Safety Act of 2023 was created.

“If the injunction is granted and fire retardant is not available for use in the year 2023 fire year, firefighters and individuals living in forested areas would be in peril, millions of acres of forested land would be in danger and billions of dollars of infrastructure would be at risk,” states a press release from LaMalfa’s office.

The bill was introduced to Congress March 14. Representative Kevin Kiley (R–CA), along with 23 other members of congress, joined LaMalfa and Panetta in supporting the legislation.

“Firefighters must have every tool available to fight California’s catastrophic wildfires and save our towns and forests from destruction,” reads a statement from Kiley. “Fire retardant is a vital and lifesaving component of those efforts and I am proud to join my colleagues in ensuring fire retardant is available to the firefighters depending upon it to protect our communities.”

Other sponsors of the bill include Dan Newhouse (R-WA), John Duarte (R-CA), Russ Fulcher (R-ID), Tom McClintock (R-CA), John Garamendi (D-CA), Austin Scott (R-GA), Amata Radewagen (R-AS), Troy Nehls (R-TX), Lauren Boebert (R-CO), Rick Crawford (R-AR), Young Kim (R-CA), Ryan Zinke (R-MT), Blake Moore (R-UT), Burgess Owens (R-UT), Mike Simpson (R-ID), Trent Kelly (R-MS), Ken Calvert (R-CA), Pete Stauber (R-MN), Darrell Issa (R-CA), Mary Miller (R-IL), Matt Rosendale (R-MT), Jim Costa (D-CA) and Harriet Hageman (R-WY).