The U.S. Forest Service (USFS) is seeking Clean Water Act (CWA) Permits from the EPA for anticipated discharges from aerial firefighting efforts that may reach federal water. The Plaintiffs in the suite, Forest Services Employees for Environmental Ethics (FSEEE) v. U.S. Forest Service, allege that, because the Permits may take up to two and half years to issue, the current aerial discharges of flame retardants are an unpermitted point source discharge that can damage waterways and aquatic species.

FSEEE has filed a Motion for Summary Judgement asking the Court to issue a wide-ranging injunction that would forbid further discharges until the USFS obtains the Permits. In its response, the USFS states that, while it anticipates that it will have to discharge fire retardant to waters in limited circumstances without a Permit, the potential CWA violations do not provide a basis for finding of liability or broad injunctive relief.

The Forest Service acknowledges that the discharges are unlawful, but state that the Plaintiffs have not met their burden for an injunction against future use. The USFS has urged the court to apply a four factor test which balances the hardships to FSEEE and its members due to those “occasional” discharges against the risk to the Forest Service, public lands, and the general public if aerial spraying is barred near protective waters. In addition, the Forest Service notes that FSEEE would need to show that discharges from fire retardants were harmful, and that their organization or its members suffer concrete and particularized injury from each of the myriad discharges challenged.  In addition, Plaintiffs would need to show that the injuries were irreparable and that other forms of relief like monetary damages would be inadequate.

The U.S. District Court for the District of Montana, where the lawsuit is filed, is expected to rule on the Motion for Summary Judgment sometime this spring. For more information, please contact one of the attorneys in SGR’s Environmental Practice.