FSEEE loses yet another retardant lawsuit

A federal judge ruled Friday that the U.S. government can continue using retardant to fight wildfires, despite his finding that it does pollute streams in violation of federal law. Banning retardant could cause greater environmental damage from wildland fires, said U.S. District Judge Dana Christensen in court in Missoula, Montana.

The judge agreed with U.S. Forest Service officials who testified that dropping retardant from aircraft into areas near waterways was sometimes necessary to protect lives and property, according to an AP report posted by KEZI-TV.

2019 retardant drop, photo by Kari Greer
2019 retardant drop, photo by Kari Greer

Christensen’s ruling resulted from yet another lawsuit filed last year by an environmentalist group trying to protect fish over people when they learned that the Forest Service had dropped retardant into waterways — what they claim was hundreds of times over the last decade.

The lawsuit is on file HERE: (PDF file).

Retardant is often crucial in slowing the progression of wildfires, which have grown larger and more destructive and more frequent as climate change and a burgeoning wildland/urban interface advance the danger of fires across the West — and other parts of the world.

Firefighters air tanker
Firefighters observe a retardant drop by an RJ85 airtanker. DOI photo.

Though environmental groups claim fire suppression efforts allowed incursions of retardant more than 200 times over the last 10 years, fire officials reply that such situations happened accidentally — and in less than 1 percent of the thousands of retardant drops ordered each year.

During this case — yet another in the decades-long battle by environmental groups against the use of retardant — a coalition including Paradise, California said stopping the use of retardant would risk lives, homes, and forests. (The 2018 Camp Fire killed 85 people and destroyed the town of Paradise.) There’s a good story online about this coalition by AerialFire Magazine.

Paradise Camp fire homes burned
A neighborhood on Debbie Lane in Paradise, California, before and after the Camp Fire that started November 8, 2018. The homes were 14 to 18 feet apart.

“This case was very personal for us,” said Paradise Mayor Greg Bolin on Friday. “Our brave firefighters need every tool in the toolbox to protect human lives and property against wildfires, and today’s ruling ensures we have a fighting chance this fire season.”

“Retardant lasts and even works if it’s dry,” said Scott Upton, a former region chief and air attack group supervisor for CAL FIRE. “Water is only so good because it dries out. It does very well to suppress fires, but it won’t last.”

KDVR-TV reported that the Oregon-based group Forest Service Employees for Environmental Ethics (FSEEE) argued in its most recent lawsuit that the Forest Service was disregarding the Clean Water Act by continuing to use retardant without taking adequate precautions to protect streams and rivers. Launched by Jeff DeBonis in 1989 in Eugene, Oregon, the group (nationalforestadvocates.org) says it has about 10,000 members; it publishes a quarterly called Forest Magazine and pays its director Andy Stahl over $91K annually. The organization receives a substantial part of its support from a governmental unit and/or the general public.

Andy Stahl
Andy Stahl

FireRescue1 reported that FSEEE claims wildfire retardant drops are expensive, ineffective, and a growing source of pollution for rivers and streams. “There’s no scientific evidence that it makes any difference in wildfire outcomes,” said Andy Stahl. “This is like dumping cash out of airplanes, except that it’s toxic and you can’t buy anything with it because it doesn’t work.”

The case has been followed closely by officials in California, where an extremely wet winter is likely to stoke the growth of early-season light fuels. “This is going to destroy towns and many communities in California, if they allow this to go through,” said Paradise Mayor Greg Bolin, whose town was razed by the Camp Fire five years ago. “To maybe save a few fish, really?”

The Smokey Wire is a Forest Service and public lands policy blog administered by Sharon Friedman, Ph.D., forest geneticist, Forest Service retiree, and former Chair of both the Forest Policy Committee and Forest Science and Technology Board at the Society of American Foresters. In a recent post about this retardant case, she commented on a piece in the San Joaquin Valley Sun published about a month ago in April, which noted that if the court sided with FSEEE, the USFS would have to obtain a special permit under the Clean Water Act to use retardant from aircraft — a lengthy process that would span multiple years. During the lawsuit, the USFS initiated the process of receiving such a permit from the EPA with the current 300-foot buffer zone for retardant drops from affected waterways.

Air Tanker 118 HC_130H Ferguson Fire
While following a lead plane, Tanker 118, an HC-130H, begins a retardant drop on the 2018 Ferguson Fire — photo by Kari Greer

In response, FSEEE argued that 300 feet was an arbitrary number. Despite its argument that the USFS had originally created the 300-foot buffer proposal out of thin air, FSEEE then asked the Court for a 600-foot buffer zone.

U.S. District Judge Dana Christensen
U.S. District Judge Dana Christensen

Judge Christensen noted then that a ruling was pending, because fire season in the West is pending. He expressed skepticism at the nationwide impact of siding with FSEEE and rejected its push for an extended buffer zone. “The last thing I want to do is start imposing magic numbers in terms of buffer zones,” he said. “I mean, that’s way out of my wheelhouse. But I don’t know what the Forest Service did to come up with a 300-feet buffer, and you’re describing it as being essentially nothing. It’s a magic number. And I will tell you, if this Court imposes a 600-foot buffer, that is truly a magic number. So that’s probably not going to happen.”

USFS attorney Alan Greenberg said the Forest Service uses retardant on about 5 percent of wildfires — and less than 1 percent of those drops end up in contact with water.

Christensen said that stopping the use of retardant could result in greater harm from wildfires — including to human life and property and to the environment. (Note that his ruling was not nationwide — it’s limited to the 10 western states where FSEEE alleged harm from pollution into waterways.)

In the lawsuit (online HERE), FSEEE specifies that “the chemical retardants used by wildland firefighting agencies are tested and approved by the United States Department of Agriculture’s Missoula Technology and Development Center, located in this Division. The Forest Service also has a Fire Sciences Lab and Smokejumper Base in this Division. Plaintiff has members who reside in this Division, and who have been injured by the Forest Service actions and activities complained of in this Complaint. Moreover, the Forest Service has discharged aerial fire retardant into navigable waters in this Division without a National Pollution Discharge Elimination System (NPDES) permit.”

May 20 - Airtanker drops retardant
Airtanker drops retardant

After the lawsuit was filed the Forest Service applied to the EPA for a permit that would allow it to continue using retardant without breaking the law. That process could take years. Christensen ordered federal officials to report every six months on their progress; no word yet on whether the USFS will still pursue that EPA permit or whether they have to continue reporting to Christensen about it.

Fire retardant covers a road sign on Barrett Lake Road in the eastern San Diego town of Dulzura, California, site of the Border 32 Fire that burned 4,456 acres between August 31 and Sept 8, 2022. Photo Credit: Josh Stotler
Fire retardant covers a road sign on Barrett Lake Road in the eastern San Diego town of Dulzura, California, site of the Border 32 Fire that burned 4,456 acres between August 31 and Sept 8, 2022.
Photo Credit: Josh Stotler

Health risks to firefighters or other people who come into contact with fire retardant are considered low, according to a 2021 risk assessment. But the chemicals can be harmful to some fish, frogs, crustaceans, and other aquatic species. One government study found misapplied retardant could adversely affect dozens of species including crawfish, spotted owls, and threatened fish such as shiners and suckers. To prevent risk, officials and pilots have avoided drops within 300 feet (92 meters) of waterways. Retardant may be applied inside those zones only when if life or public safety is threatened. Of 213 documented instances of fire retardant contacting water between 2012 and 2019, 190 were accidental and the remainder were necessary to protect lives or property, officials said.

 

Photos of retardant dropped in Sespe Creek during Howard Fire

Map retardant Sespe Creek Howard Fire
Map showing location of photos of retardant near Sespe Creek at the Howard Fire. The red area is the western side of the fire Oct. 12, 2022. The photo locations were obtained from the metadata in the iPhone photos.

A lawsuit filed Tuesday alleged that the US Forest Service has polluted waterways by firefighting air tankers inadvertently dropping fire retardant in or near waterways in violation of the Clean Water Act and a policy adopted by the Forest Service and other federal agencies in 2011. The policy requires that retardant not be dropped within 300 feet of a waterway on federal land.

Retardant near Sespe Creek at the Howard Fire
Photo 1. Retardant near Sespe Creek at the Howard Fire. Oct. 12, 2022. Peter Deneen.

Fire Aviation has acquired photos and a video that reportedly show signs of retardant being dropped into Sespe Creek on the Los Padres National Forest 8 miles northeast of Ojai, California October 8, 2022. The photos were shot by Pete Deneen on October 12, 2022 at the 85-acre Howard Fire. The creek is designated a “wild and scenic river” and is in a wilderness area.

Retardant near Sespe Creek at the Howard Fire
Photo 2. Retardant near Sespe Creek at the Howard Fire. Oct. 12, 2022. Peter Deneen.

The photos show retardant on rocks and other objects very close to water in Sespe Creek.

Retardant near Sespe Creek at the Howard Fire
Photo 3. Retardant in a dry area of Sespe Creek at the Howard Fire. Oct. 12, 2022. Peter Deneen.

Some organisms, including aquatic threatened and endangered species or their habitats, can be adversely affected by retardants. In addition, retardant in water is a pollutant.

According to US Forest Service data, between 2012 and 2019, the Forest Service discharged retardant on at least 376 occasions totaling 761,282 gallons from aircraft directly into national forest waterways.

In the video below Mr. Deneen explains that there were two locations where retardant was dropped very close to the creek. In one case the aircraft may have turned as it was dropping to follow the creek for several hundred yards, or a second drop accounted for the retardant in the waterway.

The lawsuit was filed Oct. 11 by the Forest Service Employees for Environmental Ethics, FSEEE. In the group’s complaint they are seeking:

  • A declaration that the Forest Service’s placement of retardant in waterways is a violation of the Clean Water Act.
  • An injunction “to compel the Forest Service to comply with applicable environmental statutes, prevent irreparable harm, and satisfy the public interest.”
  • Reimbursement for FSEEE’s costs, expenses, expert witness fees, and attorney fees.
  • “Such further relief as may be just, proper, and equitable.”

More about FSEEE’s history of protesting retardant, and the federal government’s policy of retardant avoidance areas established in 2011.

Environmental group files lawsuit against US Forest Service over use of fire retardant

Air Tanker 41, a BAe-146
Air Tanker 41, a BAe-146, drops retardant. BLM photo.

An environmental group filed a lawsuit in a Montana federal court Tuesday alleging that the US Forest Service has polluted waterways by inadvertently dropping fire retardant in or near waterways.  The retardant was dropped by aircraft under contract with the Forest Service while assisting wildland firefighters on the ground.

The suit says government data released earlier this year showed more than 760,000 gallons of fire retardant was dropped into waterways between 2012 and 2019. The lawsuit alleges the continued use of retardant from aircraft violates the Clean Water Act and requests a judge to declare the pollution illegal.

retardant avoidance areas
Example of retardant avoidance areas (red) in Northern California along Hwy. 96 near Klamath River.

The Forest Service has established retardant avoidance areas along waterways where the liquid is not supposed to be applied. This puts buffer zones around waterways and habitat for some threatened, endangered, and sensitive species in order to avoid applying retardant in those areas. When they were first established in 2011 it resulted in approximately 30 percent of USFS lands being off limits for retardant while fighting fire. There is an exception if human life or public safety is threatened. The policy was the result of an Environmental Impact Statement (EIS) that studied the use of retardant and how it affects water resources and certain plant and wildlife species. The EIS was written in response to a July, 2010 decision by U. S. District Court Judge Donald Molloy in a lawsuit filed in 2008 by the Forest Service Employees for Environmental Ethics.

The same organization, FSEEE, filed the new case yesterday. An attorney in Missoula, MT who specializes in environmental law, Tim Bechtold, will be representing FSEEE. Presiding over the case will be District Court Judge Dana Christensen. He joined the court in 2011 after a nomination from President Barack Obama. Before, he was a partner in the firm of Christensen, Moore, Cockrell, Cummings, and Axelberg, in Kalispell, Montana. One of the 15 practice areas the firm deals with today is environment and natural resources.

In 2012 FSEEE issued a statement criticizing the use of air tankers on fires, claiming it is “immoral”. The group argued that aerial firefighting is too dangerous and ineffective and that “retardant doesn’t save homes; proper construction and landscaping save homes.”

USFS approves new fire retardant product to be applied from the ground

PHOS-CHEK FORTIFY
PHOS-CHEK FORTIFY being applied from an ATV. Perimeter Solutions photo.

The US Forest Service has given approval to a new formulation of fire retardant specifically designed to be applied from the ground. Perimeter Solutions, the maker of PHOS-CHEK long term fire retardant, has added PHOS-CHEK FORTIFY to its inventory of products, saying that “it is the only highly-durable fire retardant that has been approved by USDA Forest Service for preventative application on U.S. federal lands.”

FORTIFY is based on a hydrogel platform and polymer technology to provide enhanced durability to weathering as well as adherence to vegetation. It can be applied on flammable vegetation and cellulosic material early in the fire season before a wildfire approaches and provides ongoing protection, remaining effective until a significant rain event of one inch or more. Unlike retardant dropped from aircraft, which is colored to help pilots track where the retardant is dropped during active wildfires, the durable FORTIFY fire retardant is uncolored and is precision applied from the ground.

Perimeter Solutions says the product was developed in 2018 and over the past three years utilities, railroads, insurance companies, homeowners, and other industries have adopted it as a solution to prevent wildfire ignitions and proactively protect their property from wildfires.

PHOS-CHEK FORTIFY
PHOS-CHEK FORTIFY being applied from a water tender. Perimeter Solutions photo.

Perimeter Solutions introduces a new generation of fire retardant

It will be phased in during the 2021 fire season as stocks of existing retardant are used

DC-10 drops on Sheep Herder Hill fire on Monday
Tanker 911, a DC-10, drops on the Sheep Herder Hill Fire near Casper on Monday. Photo by Alan Rogers, Casper Star-Tribune. Used with permission. (click to enlarge)

FIRE-TROL and PHOS-CHEK fire retardants have been produced for almost 60 years by a company whose name and ownership have changed five times since 1997  — starting with Monsanto in 1963, then Solutia, Astaris, ICL, and finally in 2018, Perimeter Solutions.

Today a new generation of fire retardant in the PHOS-CHEK line was introduced by Perimeter Solutions — LCE20-Fx. It is the result of two years of work by the Perimeter Solutions R&D team in Rancho Cucamonga, CA. Apparently very little time was spent choosing a name.

It was tested during the 2020 fire season, applying the required 200,000 gallons before it was approved by the Forest Service and added to the qualified products list on  November 5, 2020.

“We will begin deploying this commercially next fire season at probably eight or nine bases, which we will convert from LC-95A to this new LCE20-Fx product,” said Edward Goldberg, Chief Executive Officer of Perimeter Solutions.

The new formulation has shown improvements in three key areas: coverage, visibility, and toxicity.

Coverage

The retardant is produced as a liquid concentrate and delivered to application sites as a low-viscosity liquid. Before being loading onto an air tanker, it is diluted and mixed with water using an in-line proportioner as it is transferred to delivery systems. According to the company, the elastic nature of the gum thickener in LCE20-Fx reduces drift, dispersion, and evaporation, while increasing coverage, wrap around, and canopy penetration, making it more effective in targeting ground vegetation.

Visibility

The reason fire retardants are red is so aerial firefighters can see exactly what areas of a fire have been treated. This reduces repeated drops in the same area and makes it possible for additional drops to tag on to and extend the treated areas along the edge of a fire.

“We’re utilizing Fx, the ultra high visibility pigment in our products, which helps the pilots see where they need to tie in the next line so that the fire doesn’t get through the gap,” said Melissa Kim, Director of Research and Development for Perimeter. “It just continues on with our line of Fx products. We started with iron oxide, then we moved to a fugitive, and then we improved on that fuchsia color. This product will fade over time, but it does have a high, extremely high, visibility to the point where we’ve had comments come back saying that it’s even more visible than our iron oxide products. So that was a big big deal for us.”

The reports about the visibility came after the new formulation was used this year at two air tanker bases in Nevada — Battle Mountain for most of the season, and Stead/Reno at the end of the season.

They will also be producing an uncolored version without any red or fuchsia pigment which could be applied from the ground by utilities or homeowners for long term prevention and protection.

Toxicity

The millions of gallons of red fire retardant that air tankers drop every year are usually made from ammonium phosphate or its derivatives. It has  been called “long term fire retardant” because even after it dries, the chemical can interfere with the combustion process and may still retard the spread of  a vegetation fire. However research and experience in the field has shown some formulations can be toxic to fish. Federal interagency policy prohibits the aerial delivery of retardant within 300 feet of certain waterways. It also cannot be used in certain designated terrestrial areas, or in some National Parks without special permission. The restrictions still apply to the new formulation of retardant introduced today.

Maps are available which identify threatened, endangered, candidate, proposed, and sensitive species (TECPS) avoidance areas. There appears to be significant variability within the Forest Service on interpreting the guidelines and mapping the areas.

Retardant avoidance areas
Retardant avoidance areas, Forest Service lands in Northwest California.
Retardant avoidance areas
Retardant avoidance areas on the Descanso District, Cleveland National Forest, Southern California.

The retardant products used by the U.S. Forest Service are tested for fish toxicity to determine the concentration in milligrams per liter (mg/L) that result in the death of 50 percent of the aquatic test specimens, young rainbow trout, within 96 hours. The higher the number, the less toxic it is. The Forest Service specifications for retardant require that the aquatic toxicity be greater than 200 mg/L. The previous versions of PHOS-CHEK, LC-95A, had toxicity levels of 225 to 399 mg/L. The new LCE20-Fx is 983.

Weight

The weight of the mixed LCE20-Fx retardant is slightly less than the previous generation, reducing the weight of a gallon from 9.01 pounds to 8.87 pounds, a savings of 0.14 pound per gallon. This reduces the weight of the 9,400 gallons on a DC-10 by 1,316 pounds, and of the 3,000 gallons on a BAe-146 by 420 pounds.

Transportable retardant plant

The Forest Service refers to them as “portable retardant bases”, but transportable is probably a more accurate term. Since these types of bases became an issue in discussions about the closure and dismantling of the tanker base at West Yellowstone, Montana, I asked Mr. Goldberg about their transportable equipment. He explained that the company has 12, each of which can be set up in as little as two hours once on site. They are not always in the same place and can be prepositioned depending on fire activity.

Portable retardant plant
Portable retardant plant, Sacramento, CA, March 20, 2014.

This article was first published at Fire Aviation.

The cost per gallon of dropping retardant

We calculated the cost per gallon of delivering retardant on a wildfire for several different models of air tankers

MD-87 drops on the Round Peak Fire
An MD-87 drops on the Round Peak Fire east of Springville, Utah. Photo by Jocelyn Marie Cooley.

This article first appeared on Fire Aviation

On February 12 I wrote a lengthy article about exclusive use Next Generation 3.0 air tanker contracts, the Aerial Firefighting Use and Effectiveness study, air tanker availability since 2000, and the contracts that were awarded recently for Call When Needed (CWN) large and very large air tankers.

The next day I added some calculated data to that article about the cost per delivered gallon from the CWN air tankers. In an effort to ensure this additional information does not get lost, I am including it again here.

Keep in mind the costs only apply to CWN air tankers which can be more than 50 percent higher than an exclusive use air tanker that is guaranteed several months of work. The initial dollar figures supplied by the Forest Service are based on the contracts that were awarded in December, 2019.

The U.S. Forest Service refused to give us the actual daily and hourly costs that the government agreed to when issuing the new CWN contracts to the six companies, but did supply the chart below with estimates based on the contract costs. The data assume the tankers were activated 36 days a year, for 4 years, and flew 100  hours each year. The dollar figures also include the estimated fuel costs based on each aircraft’s fuel burn rate at a fuel price of $5.21 a gallon.

Call When Needed large air tanker contracts
The companies that were awarded Call When Needed large air tanker contracts in December, 2019. Data from the US Forest Service.

In comparing the dollar figures, note that the listed air tankers can carry up to 3,000 to 4,000 gallons in each load, except the DC-10 and 747 which can hold up to 9,400 and 19,200 gallons respectively.

With the very different capacities of the seven models of air tankers receiving the CWN contracts, using just the USFS data above it is difficult to analyze and compare the actual costs of applying retardant. I did some rough back-of-the-envelope cyphering assuming 3,500-gallon retardant capacities for all aircraft except the DC-10 and 747, and 9,400 and 19,200 gallons respectively for those two very large air tankers. Other assumptions were, 36 days availability a year for four years and one load per hour for a total of 400 hours. The approximate, ball park costs per gallon delivered by a Call When Needed air tanker that was awarded a USFS CWN contract in December, 2019, rounded to the nearest half-dollar and including fuel but not the costs of retardant, are:

Retardant Cost Delivered Gallon CWN

These dollar figures are very, very rough estimates. In some air tankers the amount of retardant carried varies with density altitude and the amount of fuel on board. The cost of retardant would add several dollars per gallon.

Call When Needed air tankers are usually much more expensive per day and hour than Exclusive Use Air Tankers which are guaranteed several months of work. CWN air tankers may never be activated, or could sit for long periods and only fly a small number of hours. Or, they may work for a month or two if the Forest Service feels they can pay for them out of a less restrictive account.

In 2017 the average daily rate for large federal CWN air tankers was 54 percent higher than aircraft on exclusive use contracts.