Fire Retardant Legislation in Congress: Introduction of HR 1586 and Companion Bill in Senate

The San Bernardino National Forest team works on the Pilot Fire behind Ryan Nuckol’s home in Hesperia on August 9th, 2016. The pink fire retardant line is one of the reasons why fire crews were able to save the home from the fire. Don Tuffs for KPCC.

Speaking of the co-evolution of statutes and court cases, and the idea that talking to all kinds of people- practitioners, academics, stakeholders- involved and hashing things out in dialogue is a better way to develop policy than behind settlement doors..

it looks like Andy has been successful at creating a bipartisan effort to do just that with regard to fire retardant.. check out this piece from the Plumas News.

Citing the importance of using fire retardant as an important tool for the Forest Service in fighting wild land fires, Congress is taking action.

Representatives Doug LaMalfa (R – CA) and Jimmy Panetta (D – CA) introduced the Forest Protection and Wildland Firefighter Safety Act of 2023 today, March 14. This bill creates a Clean Water Act exemption for federal, state, local, and tribal firefighting agencies to use fire retardant to fight wildfires. Fire retardant is an essential tool used to contain or slow the spread of wildfires. Currently the 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 specifically state that fire control is a “non-point source silvicultural activity” and communications from EPA dating back to 1993 indicated a permit is not required.

This bill is being introduced because an environmental group is suing the Forest Service under the Clean Water Act to require a NPDES permit to use fire retardant, and they have requested an injunction on the use of fire retardant until the Forest Service receives this permit, which could take years. If the injunction is granted and fire retardant is not available for use in the 2023 fire year, firefighters and individuals living in forested areas would be in peril, millions of acres of forested land would be in danger, and billions of dollars of infrastructure would be at risk.

Congressmen LaMalfa and Panetta were joined by 22 Members of Congress: Reps. Dan Newhouse (R-WA), John Duarte (R-CA), Russ Fulcher (R-ID), Tom McClintock (R-CA), John Garamendi (D-CA), Austin Scott (R-GA), Amata Radewagen (R-AS), Troy Nehls (R-TX), Lauren Boebert (R-CO), Rick Crawford (R-AR), Young Kim (R-CA), Ryan Zinke (R-MT), Blake Moore (R-UT), Burgess Owens (R-UT), Mike Simpson (R-ID), Trent Kelly (R-MS), Ken Calvert (R-CA), Pete Stauber (R-MN), Darrell Issa (R-CA), Mary Miller (R-IL), Kevin Kiley (R-CA), and Matt Rosendale (R-MT).

Senator Cynthia Lummis (R – WY) introduced a companion bill in the Senate.

There’s a hearing on March 23, 2023 at 2 PM eastern which includes this bill, HR 1586. Here’s a link.

Giving EPA power over more aspects of a land management agency’s work could be a recipe for disaster, as per the GAO report we discussed last week.

Side note for those of you who know more about this.. if the drops in water are due to accidents or safety, how would getting a permit help with that? It seems to me that if there are things to be fixed, fixing should be approached directly, not through the EPA. But maybe the court case is just leverage for fixing.

11 thoughts on “Fire Retardant Legislation in Congress: Introduction of HR 1586 and Companion Bill in Senate”

  1. I’ve been following this a bit and I’m still left wondering what is included in the retardant chemistry concoction. Most producers will cite proprietary ingredients. Do we know with absolute certainty the chemical compounds do not include PFAS? Just curious; not against retardant use, but I do wonder about long term human and environmental health impacts with using such products….

  2. An injunction mandating a NPDES discharge permit for these drops would almost certainly be game over for them unless and until Congress changed the law. That has happened more than a few times with NPDES discharge permits, too. First it would force the chemical contents in the retardant out into the open, at least to some extent. Second, it would require the permitting authority, supposing a permit was to be issued, to balance the use of the chemicals against their threats to local surface waters. Third, any applicable water quality standards (I’m assuming these retardants have a number of toxics in them) in the vicinity of a drop that could be involved would essentially preclude drops in those areas. Another possibility (and EPA might oblige here) is a “general” or nationwide permit, although that would likely draw its own lawsuit.

    • In response to the lawsuit, the Forest Service has applied to EPA for a general permit, for which EPA has agreed to begin rule-making (a three-year process). Your observations are spot-on regarding foreseeable disclosures associated with permitting. For example, how much cadmium and other heavy metals are found in Phos-Chek retardant? The phosphate ore from which Phos-Chek is manufactured has the highest level of cadmium of any phosphate mine in the world. And how is EPA to determine that water quality standards will not be violated when it doesn’t know the receiving waters, which can be any WOTUS on the national forests?

      • Andy, are you saying as long as the WOTUS thing remains undefined or whatever legal thing is currently going on with it, that the EPA won’t know what is in and out of regulation, water-wise?

        • The geographic scope of WOTUS is one issue, but not the one I had in mind. From a meeting-water-quality-standards perspective, one needs to know the particular water body, i.e., stream or river. The EPA-issued permit has to ensure that water quality standards are met. A small mountain stream has less capacity to absorb several thousand gallons of toxic retardant than does, for example, the Columbia River. Figuring out how much retardant to permit, stream-by-stream, will require some serious water chemistry calculations. That’s not the Forest Service’s strength (duh!), but it is the EPA’s raison d’être.


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