This Lawsuit Could Change How the Forest Service Fights Wildfires

This article was originally published by High Country News.

On a hot, dry August day in 2002, air tankers swooped over a small wildfire south of Bend, Oregon. The Forest Service hoped to suppress the flames by dropping at least 1,000 pounds of fire retardant on and around the fire—but the pilots missed. Instead, the red liquid cascaded into the nearby Fall River, a tributary of the Deschutes. Soon after, at least 22,000 trout died—virtually all the fish living in a six-mile stretch.

Retardant contains ammonium phosphate, which is highly toxic to fish. In the years following the accident, Forest Service Employees for Environmental Ethics (FSEEE), a nonprofit based in Eugene, Oregon, that represents former and current Forest Service employees, has called for policy changes regarding the use of retardant. The group is suing the agency over employing it in and around streams and creeks. The suit has reignited debates over retardant’s firefighting efficacy, and the outcome could change how it is used in the future.

In a suit filed in Montana’s Federal District Court last October, FSEEE argued that fire retardant is a pollutant, so the Forest Service needs a Clean Water Act permit if it flows into waterways. The agency is now working with the EPA to get the appropriate federal and state permits, but that process will take at least two years.

In the meantime, FSEEE has suggested that the use of retardant be barred within 600 feet of water, doubling the distance required by current Forest Service policies. In a legal document filed in February, the agency said that the request could prevent pilots from using retardant at all. “The only way to prevent accidental discharges of retardants to waters is to prohibit its use entirely,” Jerome Perez, the national director of fire and aviation management, stated. A decision is expected before fire season starts in earnest this summer.  

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The Forest Service considers retardant a crucial wildfire-suppression tool. The substance is made up of roughly 85 percent water—which helps it disperse uniformly—and 10 percent ammonium-phosphate fertilizers. It also contains small amounts of thickeners, which help it stick to trees and bushes, as well as coloring that helps pilots see where they’re dropping it. When the heat of a wildfire meets vegetation coated in retardant, the ammonium phosphate encourages organic material to release water, creating moisture that slows down combustion.

But when retardant is dropped in waterways, it can be toxic to fish. After a 2011 environmental-impact statement, the Forest Service required pilots to avoid applying retardant within a 300-foot buffer zone around waterways, and to skirt certain habitats and populations altogether.

Even so, from 2012 to 2019, the agency dropped 761,282 gallons into water, 95,708 gallons into buffer zones, and 248,285 gallons into the habitats of especially vulnerable species. The majority of incidents were accidental, but some were sanctioned exceptions; Forest Service policies consider it acceptable to drop retardant into waterways when human life or property is threatened, or when damage to natural resources outweighs loss of aquatic life, though such applications represent just 0.4 percent of the 279 million gallons used in those years.

Despite retardant’s wide use, FSEEE’s executive director, Andy Stahl, questions its efficacy. “I call it faith-based firefighting, because there’s actually no empirical evidence that retardant makes any difference in wildfire outcomes,” he says. “Everybody knows that it’s done because it looks good on CNN, and because communities who feel threatened by fire want to know where the air tankers are.” Stahl has written that the Forest Service has not adequately proved fire retardant is effective at fighting wildfires. “Why would we be permitting pollution that doesn’t accomplish anything?” Stahl says.

Retardant efficacy against wildfires is difficult to measure: In the field, it’s combined with other tactics, such as dropping water and building fuel breaks. When a fire is successfully contained or extinguished, it’s hard to credit retardant as the sole reason. And it certainly has its limits; it can only be dropped when conditions, including light, allow pilots to fly safely, and it’s harder to apply in high winds. Dense tree canopy can also keep retardant from reaching the forest floor.

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Still, Chris Jurasek, an assistant chief of tactical air operations with Cal Fire, says he and other firefighters have seen retardant’s efficacy firsthand. “I know fire retardant works, because for 12 years … I watched it more times than not to be effective in either slowing, controlling, or having an advantageous outcome on the incident,” he says. (The Forest Service declined to comment on how the agency measures retardant’s effectiveness, or to answer questions about how firefighting would change if it wasn’t an option.)

In response to FSEEE’s lawsuit, U.S. representatives introduced a bill in March that would exempt fire retardant from the Clean Water Act, saying that firefighting efforts would be hampered without it. “We’re putting a lot of people, a lot of land, a lot of wildlife in peril,” says one of the co-sponsors, Representative Doug LaMalfa, a Republican from California.

If passed, the bill would be a rare exemption to the groundbreaking legislation adopted in its modern form in 1972. Mark Ryan, a retired EPA attorney who specialized in the Clean Water Act, notes that permitting retardant would be tricky. “How do you write a permit for something that’s being applied at 250 miles per hour in an emergency situation, with very little if any time to assess what’s really happening on the ground?” he says. “That’s a nightmare permit to write.”

In a congressional hearing on the bill, Forest Service leadership painted retardant use as a matter of life and death. “Fire retardant is a critical fire-suppression tool that we will continue to use appropriately and widely to protect communities from the threats of wildfire,” said Chris French, the deputy chief for National Forest Systems, at the hearing. “We are incredibly precise and careful in our use of fire retardant.” Paradise, California, which was eviscerated by a wildfire in 2018, has also defended the use of retardant. “When you start putting fish above people’s lives and their homes, I’m sorry, that is just not acceptable,” Mayor Greg Bolin told a local TV station.

Even if the Forest Service scales back retardant’s use, issues remain. For one, other agencies will likely continue to use it: Cal Fire currently dispatches two air tankers with retardant to every wildfire. Other firefighting tools, like foams and gels, also contain chemicals. And other wildfire-caused hazards also kill fish: Tens of thousands died in the Klamath River last year after mud and ash from landslides choked the river. For now, French said, the Forest Service will continue to use retardant—until it’s ordered not to.

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