Related Practices & Jurisdictions

This isn’t an early April Fools joke — the US Forest Service is applying for a NPDES permit so that it can keep fighting forest fires!

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 that end up in Waters of the United States until it has such a nationwide permit. 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.

I would like to have coffee with anyone who, with a straight face, argues that in prohibiting a discharge of a pollutant to a Water of the United States without a permit Congress intended to subject fire fighters to criminal and civil penalties. But, 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.”

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 fighting of forest fires under the Clean Water Act seems like a bad early April Fools joke.

“The Forest Service has commenced the process to obtain Clean Water Act permits that will authorize the discharge of aerial fire retardant into waters, including entering a Federal Facilities Compliance Agreement with [EPA],” the Justice Department said in a recent brief in environmentalists’ novel lawsuit alleging that without a permit, such spraying violates the CWA.

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National Law Review, Volume XIII, Number 83

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