ELR Citation: 53 ELR 20085
No(s). 22-168-M-DLC (D. Mont. May 26, 2023) (Christensen, J.)

A district court granted in part and denied in part an environmental group's motion for summary judgment in a CWA citizen suit concerning the Forest Service's discharge of aerially deployed fire retardant into navigable waters of the United States without an NPDES permit. The group argued the Service's application of the retardant without an NPDES permit violated the CWA, and sought to enjoin it from doing so until it obtained a permit. The court found the Service itself conceded that an aircraft can be a point source and that fire retardant is a pollutant. Further, the Service has already begun the process for obtaining an NPDES permit to discharge its retardant into "waters of the United States." The court held that the Service's unpermitted aerial discharges of fire retardant into navigable waters in 10 states violated the CWA, but declined to enjoin the Service from continuing the practice because doing so could conceivably result in greater harm from wildfires.