Common Sense Breaks Out: Wildfire Control Outweighs NPDES Permit
From January 1, 2020, to December 31, 2022, wildfires in the United States destroyed approximately 25 million acres of land. During this same period, 26,400 wildfires destroyed roughly 7.2 million acres of land in California. As the climate changes, wildfires in California will become more unexpected and uncontrollable. As a result, state and federal agencies have deployed multiple firefighting and fire-prevention tactics to combat the potential destruction of wildfires.
On April 24, 2023, a Montana District Court held a hearing on an action filed by the Forest Service Employees for Environmental Ethics (“FSEEE”) under 33 U.S.C, section 1365(a), “challenging the United States Forest Service’s (“USFS”) discharge of aerially deployed fire retardant into navigable waters of the United States without a National Pollutant Discharge Elimination System (“NPDES”) permit, in violation of the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq.”
A principal goal of the CWA is to prohibit the discharge of pollutants into the waters of the U.S. unless permitted by the Environmental Protective Agency (“EPA”) through an NPDES permit.
In this action, FSEEE alleges that from 2012 to 2019, USFS discharged fire retardants, such as inorganic fertilizers (ammonium phosphates) or other inorganic salts (magnesium chloride), at least 459 times without an NPDES permit. While USFS disputed the number of discharges, USFS did not dispute that the discharges occurred without an NDPES permit. However, before this hearing, USFS had begun “the process of obtaining a general NPDES permit from the EPA to permit its discharge of aerially deployed fire retardant into the waters of the United States,” which will “take approximately two and a half years.”
The Court concluded that FSEEE had standing “to enforce the alleged CWA violations in Oregon, California, Montana, Idaho, Wyoming, Colorado, Nevada, Arizona, New Mexico, and Alaska” because FSEEE suffered an Injury in Fact due to USFS’s discharges that USFS caused, which could be redressed. Despite the Court’s finding that “USFS’s unpermitted aerial discharges of fire retardant into navigable waters of the United States in the states of Oregon, California, Montana, Idaho, Wyoming, Colorado, Nevada, Arizona, New Mexico, and Alaska is in violation of the Clean Water Act,” the Court held that USFS could continue aerial deployment of fire retardant, “as a tool to fight wildfires” until approval of the pending NPDES permit.
the Court did not directly state that it was balancing any factors, the Court’s
holding aligns with the consensus that wildfire impacts on the environment
substantially outweigh any aquatic impacts created by USFS’s aerial discharge
of fire retardants.