U.S. SENATE –Today, U.S. Senator Steve Daines introduced the “Forest Protection and Wildland Firefighter Safety Act” to protect firefighters, communities and property in Montana and throughout the West from the devastating impacts of wildfires. The bill ensures the continued use of fire retardant to manage wildfires and protect communities and firefighters.
“In recent years, Montana has suffered catastrophic wildfire seasons. We must do everything we can to cut bureaucratic red tape and put an end to frivolous litigation that’s preventing our brave firefighters from using all means necessary to protect our Montana families and communities from these deadly flames,” said Daines.
Daines joined Senators Cynthia Lummis (R-Wyo.), Mike Crapo (R-Idaho), Jim Risch (R-Idaho), and Dan Sullivan (R-Alaska.) in introducing this legislation.
For bill text click HERE.
Currently, the U.S. Forest Service and other agencies are operating under the assumption that a National Pollutant Discharge Elimination System (NPDES) permit is not required for the use of fire retardant because the regulations for administering the NPDES system specifically state that fire control is a “non-point source silvicultural activity” and communications from the Environmental Protection Agency (EPA) dating back to 1993 indicated a permit is not required.
An ongoing lawsuit is threatening this status quo. In October 2022, the Forest Service Employees for Environmental Ethics sued the Forest Service under the “Clean Water Act” alleging violations of the CWA for the discharges of aerial fire retardant into navigable waters without a NPDES permit and have requested an injunction on the use of fire retardant until the Forest Service receives this permit, which could take years. The suit was filed in the U.S. District Court of Montana.
If the injunction is granted and fire retardant is not available for use in 2023, firefighters and individuals living in forested areas would be in greater danger and billions of dollars of infrastructure would be at risk as fire retardant is a vital tool used to fight wildfires. The process to receive a permit would take years since there is no NPDES permit established, so a rule establishing a general permit would be needed. Additionally, because the EPA has delegated permitting authority to most states, the general permit would be geographically limited, so each of the upwards of 40 individual regulatory agencies that have NPDES authority would need to go through a rulemaking process to establish their own general permit using EPA’s general permit as a model. This process would increase the bureaucracy around fighting wildfires taking resources away from on-the-ground wildfire efforts.
This legislation is supported by the United Aerial Firefighters Association.
“UAFA notes with increasing concern the potential for a federal court to impose a restraining order against the use of aerially applied fire retardant as early as this coming fire season. Fire retardant is a proven, essential tool in assisting wildland firefighters in their fight to contain, control and defeat wildfire. As this lawsuit continues, with the potential to run into its second year, UAFA strongly supports Senator Lummis’ legislation, the Forest Protection and Wildland Firefighter Safety Act of 2023, which allows the federal, states, and tribal governments to continue the use of aerially applied fire retardants.” — United Aerial Firefighters Association President John Gould.