Posted on March 28, 2023 by Jeff Porter
Inside EPA is reporting that the United States Forest Service is going to work with EPA to obtain National Pollutant Discharge Elimination System (NPDES) permit coverage under the Federal Clean Water Act authorizing it to continue fighting forest fires from the air. Why? Because an NGO has filed a citizen suit under the Clean Water Act seeking to enjoin the Forest Service from “discharging” (by dropping from an Air Tanker) fire retardants, some amount of which apparently end up in Waters of the United States. According to the Forest Service’s opposition to the NGO’s motion for summary judgment, between 2012 and 2019, the Forest Service dropped fire retardants from the sky approximately 57,000 times and one in 267 of those drops in whole or in part entered a water.
Does anyone, including the plaintiffs in this case, truly believe that in prohibiting a discharge of a pollutant to a Water of the United States, other than with the benefit of a Federal permit, Congress intended to subject fire fighters to criminal and civil penalties for fighting fires? Depending on your answer to that question you might be surprised to learn that, according to the Forest Service’s brief, it “does not dispute that discharges of fire retardant [ ] without a Clean Water Act permit are unlawful.” It only takes issue with being put out of the aerial fire-fighting business until it has the permit it concedes it needs.
And so the Forest Service and EPA have entered into a Federal Facilities Compliance Agreement with EPA to, over the next “approximately two and a half years”, “obtain Federal, and as many as 47 State, Clean Water Act permits to cover future potential fire retardant discharges.” Would the Forest Service and EPA have chosen this course if their feet weren’t being held to the fire by citizen suits? One only has to look at what the Federal Government has and hasn’t done since the Clean Water Act was enacted a half century ago before an NGO complained to know the answer to that question.
We face monumental environmental challenges and our Federal and State regulators are under-resourced to meet those challenges. Given those challenges and resource constraints, that regulators will be spending the next two and a half years permitting the continued fighting of forest fires under the Clean Water Act seems like a bad early April Fools joke.