(CN) — A federal judge in Montana partially sided with environmentalists on Friday, agreeing that the U.S. Forest Service violated the Clean Water Act by discharging aerially deployed fire retardant into waterways without a permit.
The order from U.S. District Judge Dana Christensen comes seven months after nonprofit Forest Service Employees for Environmental Ethics challenged the service under the Clean Water Act, claiming that between 2012 and 2019, the service dumped 761,283 gallons of aerial retardant into streams while fighting wildfires.
According to the group’s 2022 complaint, the service’s deployment of fire retardants into waterways occurred on over 459 occasions without a National Pollution Discharge Elimination System permit — a claim the service only partially denied, countering that it only recorded water contamination 213 times.
The service also denied that its contamination of streams is irreparable every time, stating that while the retardant can cause “lethal and sub-lethal effects on aquatic species,” its lethal intrusion into streams is “expected to be extremely rare and the majority of effects, if any occur, are assumed to be sub-lethal or indirect.”
With that said, a recent government study found that fire retardants — mainly consisting of inorganic fertilizers and salts — can harm more than just fish and amphibians. The retardant can also further imperil birds like the northern spotted owl and the marbled murrelet, as well as several types of insects, plants and mammals found throughout the western United States.
But despite conflicting arguments about how or when the service violated the law, Judge Christensen maintained that neither stance changed the fact that the service discharged fire retardants into waterways without a National Pollution Discharge Elimination System permit.
“There does not appear to be any genuine dispute that the USFS’s discharge of aerially deployed fire retardant into waters of the United States without an NPDES permit violates the CWA,” wrote Christensen in his order, later mandating the service to check in with the court every six months regarding its progress in obtaining the required permit.
Where the judge differed in opinion with environmentalists is whether to permanently bar the service from using unpermitted fire retardants while fighting wildfires.
“FSEEE has not offered sufficient evidence on the hardships to the parties and has failed to demonstrate that the public interest would not be disserved by a permanent injunction,” Christensen wrote. “The USFS explains that the 213 recorded intrusions only occurred where it was necessary ‘to protect human life or public safety (23 intrusions) or due to accident (190 intrusions).’”
Christensen also noted that while the injunction would presumably allow the service to continue deploying aerial retardant, “it is unclear how the agency would proceed or if the agency could completely avoid future CWA violations.”
As such, Christensen determined that the requested injunction could result in greater harm from wildfires — including to human life, property and the environment — especially since the estimated timeframe for obtaining the permit is two and half years.
“Here, the USFS represents that it has begun the process of obtaining ‘a general NPDES permit from EPA and the 47 States authorized to implement the NPDES program in its jurisdiction,’” Christensen wrote, adding that, meanwhile, the service and the U.S. Environmental Protection Agency have entered a federal compliance agreement that allows the service to continue using fire retardant while acquiring its permit.
“Thus, as the court recognized in Romero-Barcelo, the objective of the CWA is likely to be achieved here in due course without need for a permanent injunction in the interim,” the judge added.
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