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A federal judge on Monday will hear arguments in a Montana lawsuit that seeks to curb the U.S. Forest Service’s use of aerial fire retardant to combat wildfires over concerns that it is polluting streams and rivers.
The Forest Service Employees for Environmental Ethics, the Oregon-based group that filed the lawsuit, argues that dropping retardant in waterways without a permit violates the Clean Water Act and does more environmental harm than good in fighting fires.
But the Forest Service says it’s a critical firefighting tool. And a coalition of opponents, including a California city destroyed by wildfire, argue that limits on the use of the retardant could put more homes and forests at risk.
The case is being watched because it could impact how U.S. wildfires are fought. And it comes as the 2023 fire season gets underway following years of larger and more devastating wildfires.
Why is aerial wildfire retardant being challenged?
The lawsuit, filed in U.S. District Court in Montana, asks that a judge issue an injunction blocking officials from using aerial retardant in waterways until they get a permit to discharge pollution as required by the Clean Water Act.
One Department of Agriculture report found retardant was likely to adversely affect 32 aquatic species. More than 100 million gallons of it were used during the past decade, according to the department.
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.
Fire officials in recent years have avoided drops inside buffer zones within 300 feet of waterways to minimize pollution.
The Forest Service said in court filings that while retardant has been dropped into waterways more than 200 times over the past decade, it usually happens by mistake and in less than 1% of the thousands of drops annually. And the agency said the environmental damage from fires can exceed the pollution from retardant.
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Will the suit impact how fires are fought?
The Forest Service has asked the Environmental Protection Agency to issue a permit allowing it to drop retardant into water under certain conditions. But the process is expected to take more than two years.
“The only way to prevent accidental discharges of retardant to waters is to prohibit its use entirely,” government attorneys wrote.
Opponents of the lawsuit include the California Forestry Association and municipalities including Paradise, California, devastated by a 2018 blaze.
“The use of fire retardant can make the difference between life and death, or whether communities and private property are saved or engulfed in flames,” California Forestry Association President Matt Dias said in a statement.
The case is being watched in California, where a wet winter could help grow grasses that help carry flames to forested areas, the Los Angeles Times reported.
A ruling from U.S. District Judge Dana Christensen is expected sometime after the opposing sides present their arguments at a Monday hearing in Missoula, Montana.
Have wildfires gotten worse in recent years?
Over the past five years, wildfires have scorched more than 38 million acres across the country, destroying thousands of homes and structures.
Federal officials say extremes in drought and heat, fueled by climate change, are drying out forests in the West and are the leading driver of an increase in fire weather.
In 2022, there were 68,988 wildfires across the county, compared to 58,985 wildfires reported in 2021 — noticeably higher than the 10-year average, according to National Interagency Fire Center. Last year those fires consumed 7.6 million acres.
As of Friday, 11,910 wildfires have burned 351,821 acres in the United States, below the 10-year average, according to the center.
Scientists widely expect conditions to worsen in coming decades, the result of a combination of factors, including the warming climate, intense droughts, storms, forests laden with trees downed by hurricanes, people moving into fire-prone areas, and conflicts over how to manage land to prevent extreme fires.
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Contributing: Dinah Voyles Pulver, USA TODAY; The Associated Press
Chris Kenning is a national correspondent. Reach him at ckenning@usatoday.com and on Twitter @chris_kenning.
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