Pollution lawsuit could curb use of aerial fire retardant

BILLINGS, Mont. -- A legal dispute in Montana could drastically curb the government's use of aerial fire retardant to combat wildfires after environmentalists raised concerns about waterways that are being polluted with the potentially toxic red slurry that's dropped from aircraft.

A coalition that includes Paradise, California -- where a 2018 blaze killed 85 people and destroyed the town -- said a court ruling against the U.S. Forest Service in the case could put lives, homes and forests at risk.

An advocacy group that's suing the agency claims officials are flouting a federal clean water law by continuing to use retardant without taking adequate precautions to protect streams and rivers.

The group, Forest Service Employees for Environmental Ethics, requested an injunction blocking officials from using aerial retardant until they get a pollution permit.

The dispute comes as wildfires across North America have grown bigger and more destructive over the past two decades because climate change, people moving into fire-prone areas, and overgrown forests are creating more catastrophic megafires that are harder to fight.

An air tanker drops retardant while trying to stop the Oak Fire from progressing July 24 in Mariposa County, California.Noah Berger ~ Associated Press, file

An air tanker drops retardant while trying to stop the Oak Fire from progressing July 24 in Mariposa County, California.Noah Berger ~ Associated Press, file

Forest Service officials acknowledged in court filings that retardant has been dropped into waterways more then 200 times over the past decade. They said it happens usually by mistake and in less than 1% of the thousands of drops annually, and that environmental damage from fires can exceed the pollution from retardant.

"The only way to prevent accidental discharges of retardant to waters is to prohibit its use entirely," government attorneys wrote. "Such a prohibition would be tantamount to a complete ban of aerial discharges of retardant."

Government officials and firefighters say fire retardant can be crucial to slowing the advance of a blaze so firefighters can try to stop it.

"It buys you time," said Scott Upton, a former region chief and air attack group supervisor for California's state fire agency. "We live in a populous state -- there are people everywhere. It's a high priority for us to be able to use the retardant, catch fires when they're small."

Forest Service officials said they are trying to come into compliance with the law by getting a pollution permit but that could take years.

"The Forest Service says it should be allowed to pollute, business as usual," said Andy Stahl, who leads the Eugene, Oregon-based group behind the lawsuit. "Our position is that business as usual is illegal."

A ruling from U.S. District Judge Dana Christensen is expected sometime after the opposing sides present their arguments during a Monday hearing in federal court in Missoula.

Christensen denied a request to intervene in the case by the coalition that includes Paradise, other California communities and trade groups such as the California Forestry Association. The judge is allowing the coalition's attorney to present brief arguments.

As the 2023 fire season gets underway, California Forestry Association President Matt Dias said the prospect of not having fire retardant available to a federal agency that plays a key role on many blazes was "terrifying."

"The devastation that could occur as a result of the Forest Service losing that tool could be just horrific," Dias said.

More than 100 million gallons of fire retardant were used during the past decade, according to the Department of Agriculture. It's made up of water and other ingredients including fertilizers or salts that can be harmful to fish, frogs, crustaceans and other aquatic animals.

A government study found misapplied retardant could adversely affect dozens of imperiled species, including crawfish, spotted owls and fish such as shiners and suckers.

Health risks to firefighters or other people who come into contact with fire retardant are considered low, according to a 2021 risk assessment commissioned by the Forest Service.

To keep streams from getting polluted, officials in recent years have avoided drops inside buffer zones within 300 feet of waterways.

Under a 2011 government decision, fire retardant may only be applied inside the zones, known as "avoidance areas," when human life or public safety is threatened and retardant could help. Of 213 instances of fire retardant landing in water between 2012 and 2019, 190 were accidents, officials said.

The remaining 23 drops were necessary to save lives or property, they said.

Stahl's organization suggested in court filings that the buffer zones be increased, to 600 feet around lakes and streams.

In January -- three months after the lawsuit was filed -- the Forest Service asked the Environmental Protection Agency to issue a permit allowing the service to drop retardant into water under certain conditions. The process is expected to take more than two years.

Forest Service spokesperson Wade Muehlhof declined comment on the case.