BILLINGS, Mont. — A legal dispute in Montana could drastically curb the government’s use of aerial fire retardant to combat wildfires after environmentalists raised concerns about waterways that are being polluted with the potentially toxic red slurry that’s dropped from aircraft.
An aircraft drops fire retardant to slow the spread of the Richard Spring fire on Aug. 11, 2021,, east of Lame Deer, Mont.
A coalition that includes Paradise, California — where a 2018 blaze killed 85 people and destroyed the town — said a court ruling against the U.S. Forest Service in the case could put lives, homes and forests at risk.
An advocacy group that’s suing the agency claims officials are flouting a federal clean water law by continuing to use retardant without taking adequate precautions to protect streams and rivers.
The group, Forest Service Employees for Environmental Ethics, requested an injunction blocking officials from using aerial retardant until they get a pollution permit.
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The dispute comes as wildfires across North America have grown bigger and more destructive over the past two decades because climate change, people moving into fire-prone areas, and overgrown forests are creating more catastrophic megafires that are harder to fight.
Forest Service officials acknowledged in court filings that retardant has been dropped into waterways more then 200 times over the past decade. They said it happens usually by mistake and in less than 1% of the thousands of drops annually, and that environmental damage from fires can exceed the pollution from retardant.
“The only way to prevent accidental discharges of retardant to waters is to prohibit its use entirely,” government attorneys wrote. “Such a prohibition would be tantamount to a complete ban of aerial discharges of retardant.”
Government officials and firefighters say fire retardant can be crucial to slowing the advance of a blaze so firefighters can try to stop it.
“It buys you time,” said Scott Upton, a former region chief and air attack group supervisor for California’s state fire agency. “We live in a populous state — there are people everywhere. It’s a high priority for us to be able to use the retardant, catch fires when they’re small.”
Forest Service officials said they are trying to come into compliance with the law by getting a pollution permit but that could take years.
“The Forest Service says it should be allowed to pollute, business as usual,” said Andy Stahl, who leads the Eugene, Oregon-based group behind the lawsuit. “Our position is that business as usual is illegal.”
A ruling from U.S. District Judge Dana Christensen is expected sometime after the opposing sides present their arguments during a Monday hearing in federal court in Missoula.
Christensen denied a request to intervene in the case by the coalition that includes Paradise, other California communities and trade groups such as the California Forestry Association. The judge is allowing the coalition’s attorney to present brief arguments.
As the 2023 fire season gets underway, California Forestry Association President Matt Dias said the prospect of not having fire retardant available to a federal agency that plays a key role on many blazes was “terrifying.”
“The devastation that could occur as a result of the Forest Service losing that tool could be just horrific,” Dias said.
More than 100 million gallons of fire retardant were used during the past decade, according to the Department of Agriculture. It’s made up of water and other ingredients including fertilizers or salts that can be harmful to fish, frogs, crustaceans and other aquatic animals.
A government study found misapplied retardant could adversely affect dozens of imperiled species, including crawfish, spotted owls and fish such as shiners and suckers.
Health risks to firefighters or other people who come into contact with fire retardant are considered low, according to a 2021 risk assessment commissioned by the Forest Service.
To keep streams from getting polluted, officials in recent years have avoided drops inside buffer zones within 300 feet of waterways.
Under a 2011 government decision, fire retardant may only be applied inside the zones, known as “avoidance areas,” when human life or public safety is threatened and retardant could help. Of 213 instances of fire retardant landing in water between 2012 and 2019, 190 were accidents, officials said.
The remaining 23 drops were necessary to save lives or property, they said.
Stahl’s organization suggested in court filings that the buffer zones be increased, to 600 feet around lakes and streams.
In January — three months after the lawsuit was filed — the Forest Service asked the Environmental Protection Agency to issue a permit allowing the service to drop retardant into water under certain conditions. The process is expected to take more than two years.
Forest Service spokesperson Wade Muehlhof declined comment on the case.
These dramatic before-and-after photos show how storms filled California's reservoirs
A car crosses Enterprise Bridge over Lake Oroville's dry banks on May 23, 2021, left, and the same location on March 26, 2023, in Butte County, Calif.
Read the full story at the end of the gallery.
Houseboats rest in a channel at Lake Oroville State Recreation Area on March 26, 2023, left, and the same location on Aug. 14, 2021, in Butte County, Calif.
A car crosses Enterprise Bridge over Lake Oroville on March 26, 2023, left, and the same location on May 23, 2021, in Butte County, Calif.
A dock floats in the Browns Ravine Cove area of Folsom Lake, March 26, 2023, left, and the same location on dry land on May 22, 2021, in Folsom, Calif.
Docks float in the Browns Ravine Cove area of Folsom Lake on March 26, 2023, left, and the same location on May 22, 2021, boat docks sit on dry land in Folsom, Calif., on May 22, 2021.
A trailer stands at a property that was scorched in the 2020 North Complex Fire above Lake Oroville on March 26, 2023, and the same location on May 23, 2021, in Oroville, Calif.
BEFORE: A vehicle is parked on a newly revealed piece of land due to receding waters at the drought-stricken Folsom Lake in Granite Bay, Calif., on Saturday, May 22, 2021.
AFTER: In an aerial view, a boat floats in the Granite Bay area of Folsom Lake, in Granite Bay, Calif., on Sunday, March 26, 2023.
BEFORE: A boat crosses Lake Oroville below trees scorched in the 2020 North Complex Fire on May 23, 2021, in Oroville, Calif.
AFTER: A boat crosses Lake Oroville on Sunday, March 26, 2023, in Butte County, Calif.
BEFORE: Dry hillsides surround Lake Oroville on May 22, 2021, in Oroville, Calif.
AFTER: The Oroville Dam, top right, holds back water at Lake Oroville on Saturday, March 25, 2023, in Butte County, Calif.
BEFORE: Houseboats float on Lake Oroville on Oct. 25, 2021, in Oroville, Calif.
AFTER: Houseboats float near Lake Oroville's Bidwell Bar Bridge at on Sunday, March 26 2023, in Butte County, Calif.
BEFORE: Empty boat dock sit on dry land at the Browns Ravine Cove area of drought-stricken Folsom Lake in Folsom, Calif., on May 22, 2021.
AFTER: A sign stands in the Browns Ravine Cove area of Folsom Lake, in Folsom, Calif., on Sunday, March 26, 2023.
BEFORE: Houseboats rest in a channel at Lake Oroville State Recreation Area in Butte County, Calif., on Aug. 14, 2021. Months of winter storms have replenished California's key reservoirs after three years of punishing drought.
AFTER: Houseboats float at Lake Oroville State Recreation Area on Sunday, March 26, 2023, in Butte County, Calif. Months of winter storms have replenished California's key reservoirs after three years of punishing drought.
BEFORE: A car crosses Enterprise Bridge over Lake Oroville's dry banks on May 23, 2021, in Oroville, Calif. Months of winter storms have replenished California's key reservoirs after three years of punishing drought.
AFTER: A car crosses Enterprise Bridge over Lake Oroville on Sunday, March 26, 2023, in Butte County, Calif. Months of winter storms have replenished California's key reservoirs after three years of punishing drought.
BEFORE: Boat docks sit on dry land at the Browns Ravine Cove area of drought-stricken Folsom Lake, in Folsom, Calif., on May 22, 2021. Months of winter storms have replenished California's key reservoirs after three years of punishing drought.
AFTER: Docks float in the Browns Ravine Cove area of Folsom Lake in Folsom, Calif., on Sunday, March 26, 2023. Months of winter storms have replenished California's key reservoirs after three years of punishing drought.
BEFORE: A car crosses Enterprise Bridge over Lake Oroville's dry banks on May 23, 2021, in Oroville, Calif.
AFTER: A car crosses Enterprise Bridge over Lake Oroville on Sunday, March 26, 2023, in Butte County, Calif.
BEFORE: An empty boat dock sits on dry land at the Browns Ravine Cove area of drought-stricken Folsom Lake, in Folsom, Calif., on May 22, 2021.
AFTER: A dock floats in the Browns Ravine Cove area of Folsom Lake in Folsom, Calif., on Sunday, March 26, 2023.
BEFORE: People walk near boat docks as they sit on dry land at the Browns Ravine Cove area of drought-stricken Folsom Lake in Folsom, Calif., on May 22, 2021.
AFTER: Docks float in the Browns Ravine Cove area of Folsom Lake in Folsom, Calif., Sunday, March 26, 2023.
BEFORE: A home scorched in the 2020 North Complex Fire rests above Lake Oroville on May 23, 2021, in Oroville, Calif.
AFTER: A trailer stands at a property scorched in the 2020 North Complex Fire above Lake Oroville on Sunday, March 26, 2023, in Butte County, Calif.
Dramatic photos show how storms filled California reservoirs
FOLSOM, Calif. (AP) — Water levels fell so low in key reservoirs during the depth of California's drought that boat docks sat on dry, cracked land and cars drove into the center of what should have been Folsom Lake.
Those scenes are no more after a series of powerful storms dumped record amounts of rain and snow across California, replenishing reservoirs and bringing an end — mostly — to the state's three-year drought.
Now, 12 of California's 17 major reservoirs are filled above their historical averages for the start of spring. That includes Folsom Lake, which controls water flows along the American River, as well as Lake Oroville, the state's second largest reservoir and home to the nation's tallest dam.
It's a stunning turnaround of water availability in the nation's most populous state. Late last year nearly all of California was in drought, including at extreme and exceptional levels. Wells ran dry, farmers fallowed fields and cities restricted watering grass.
The water picture changed dramatically starting in December, when the first of a dozen " atmospheric rivers " hit, causing widespread flooding and damaging homes and infrastructure, and dumping as many as 700 inches (17.8 meters) of snow in the Sierra Nevada mountains.
"California went from the three driest years on record to the three wettest weeks on record when we were catapulted into our rainy season in January," said Karla Nemeth, director of California Department of Water Resources. "So, hydrologically, California is no longer in a drought except for very small portions of the state."
All the rain and snow, while drought-busting, may bring new challenges. Some reservoirs are so full that water is being released to make room for storm runoff and snowmelt that could cause flooding this spring and summer, a new problem for weary water managers and emergency responders.
The storms have created one of the biggest snowpacks on record in the Sierra Nevada mountains. The snowpack's water content is 239% of its normal average and nearly triple in the southern Sierra, according to state data. Now as the weather warms up, water managers are preparing for all that snow to melt, unleashing a torrent of water that's expected to cause flooding in the Sierra foothills and Central Valley.
"We know there will be flooding as a result of the snowmelt," Nemeth said. "There's just too much snowmelt to be accommodated in our rivers and channels and keeping things between levees."
Managers are now releasing water from the Oroville Dam spillway, which was rebuilt after it broke apart during heavy rains in February 2017 and forced the evacuation of more than 180,000 people downstream along the Feather River.
The reservoir is 16% above its historic average. That's compared to 2021, when water levels dropped so low that its hydroelectric dams stopped generating power.
That year the Bidwell Canyon and Lime Saddle marinas had to pull most recreational boats out of Lake Oroville and shut down their boat rental business because water levels were too low and it was too hard to get to the marinas, said Jared Rael, who manages the marinas.
In late March, the water at Lake Oroville rose to 859 feet (262 meters) above sea level, about 230 feet (70 meters) higher than its low point in 2021, according to state data.
"The public is going to benefit with the water being higher. Everything is easier to get to. They can just jump on the lake and have fun," Rael said. "Right now we have tons of water. We have a high lake with a bunch of snowpack. We're going to have a great year."
The abundant precipitation has prompted Gov. Gavin Newsom to lift some of the state's water restrictions and stop asking people to voluntarily reduce their water use by 15%.
Newsom has not declared the drought over because there are still water shortages along the California-Oregon border and parts of Southern California that rely on the struggling Colorado River.
Cities and irrigation districts that provide water to farms will receive a big boost in water supplies from the State Water Project and Central Valley Project, networks of reservoirs and canals that supply water across California. Some farmers are using the stormwater to replenish underground aquifers that had become depleted after years of pumping and drought left wells dry.
State officials are warning residents not to let the current abundance let them revert to wasting water. In the era of climate change, one extremely wet year could be followed by several dry years, returning the state to drought.
"Given weather whiplash, we know the return of dry conditions and the intensity of the dry conditions that are likely to return means we have to be using water more efficiently," Nemeth said. "We have to be adopting conservation as a way of life."
