[House Report 118-721]
[From the U.S. Government Publishing Office]
118th Congress} { Rept. 118-721
2d Session } HOUSE OF REPRESENTATIVES { Part 1
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FOREST PROTECTION AND WILDLAND FIREFIGHTER
SAFETY ACT OF 2023
_______
October 25, 2024.--Ordered to be printed
_______
Mr. Westerman, from the Committee on Natural Resources, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1586]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 1586) to allow the Secretary of the Interior and
the Secretary of Agriculture to use a fire retardant, chemical,
or water for fire suppression, control, or prevention
activities, having considered the same, reports favorably
thereon with amendments and recommends that the bill as amended
do pass.
The amendments are as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Forest Protection and Wildland
Firefighter Safety Act of 2023''.
SEC. 2. PERMITTING REQUIREMENTS FOR CERTAIN DISCHARGES OF FIRE
RETARDANT.
(a) Authorized Uses.--The Secretary of the Interior and the Secretary
of Agriculture are each authorized to discharge a fire retardant,
chemical, or water from aircraft for fire suppression, control, or
prevention activities.
(b) Permitting Requirements.--Notwithstanding any provision of the
Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), a permit
under section 402 of such Act (33 U.S.C. 1342) shall not be required
for the activities authorized by subsection (a) or for similar
activities conducted by a covered entity.
(c) Definition.--In this section, the term ``covered entity'' means--
(1) the Forest Service;
(2) the National Park Service;
(3) the Bureau of Land Management;
(4) the United States Fish and Wildlife Service;
(5) the Bureau of Indian Affairs;
(6) the Federal Emergency Management Agency;
(7) a State (as defined in section 502 of the Federal Water
Pollution Control Act (33 U.S.C. 1362)) or a political
subdivision thereof;
(8) a Tribal government; and
(9) the Department of Defense.
Amend the title so as to read:
A bill to allow the Secretary of the Interior and the
Secretary of Agriculture to use a fire retardant, chemical, or
water from aircraft for fire suppression, control, or
prevention activities.
PURPOSE OF THE LEGISLATION
The purpose of H.R. 1586, as ordered reported, is to allow
the Secretary of the Interior and the Secretary of Agriculture
to use a fire retardant, chemical, or water from aircraft for
fire suppression, control, or prevention activities.
BACKGROUND AND NEED FOR LEGISLATION
While federal land managers continue to work on the long-
term goal of making forests healthier and more resilient to
wildfires, robust firefighting tools are essential. One of
these tools is fire retardant. Fire retardant, although
chemically different throughout time, has been used by the U.S.
Forest Service (USFS) since the 1950s. Fire retardant alters
the way fires burn by ``cooling and coating fuels, depleting
the fire of oxygen, and slowing the rate of fuel combustion as
the retardant's inorganic salts change how fuels burn.''\1\ It
is primarily applied by arial units and leads to further
control and containment of fires. Retardant is ``most effective
with support from ground resources but can be used to hold a
fire for long durations or even stop the fire.''\2\
Importantly, the use of retardant is critical in assisting
wildland firefighters as they suppress raging infernos while
minimizing risks to their safety. The typical ingredients in
fire retardant are 10 percent salts (typically fertilizers) and
85 percent water. The other five percent includes minor
ingredients such as colorant, thickener, and stabilizers.
Colorants make the fire retardant visible to both ariel and
ground crews.\3\
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\1\U.S. Forest Service, Record of Decision, December 2011, https://
www.fs.usda.gov/sites/default/files/media_wysiwyg/
wfcs_rod_12_15_11_0.pdf.
\2\U.S. Fish and Wildlife Service, Fire Retardant Biological
Opinion, February 13, 2023, https://www.fs.usda.gov/sites/default/
files/2023-02/Fire-Retardant-FWS-Biological-Op.pdf.
\3\U.S. Department of Agriculture, ``What is Fire Retardant and How
Does it Work?'', September, 28, 2021, https://ask.usda.gov/s/article/
What-is-fire-retardant-and-how-does-it-work.
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The Clean Water Act (CWA) typically requires a National
Pollutant Discharge Elimination System (NPDES) permit for any
addition of a pollutant from a point source to navigable
waters.\4\ The regulations for administering NPDES permits
specifically states fire control is a ``non-point source
silvicultural activity'', and therefore exempt from the
requirements to obtain a permit.\5\ Specifically, the
Environmental Protection Agency (EPA) determined in 2011 that a
NPDES permit under the CWA was not necessary for fire retardant
administered via air.\6\ As a result, there is currently no
NPDES permit established for aerial application of fire
retardant. In October 2022, the Forest Service Employees for
Environmental Ethics (FSEEE) sued the USFS under the ``Citizen
Suit'' provision of the CWA in the District Court in
Montana.\7\ FSEEE alleges past use of aerial fire retardant was
dropped into navigable waters without a NPDES permit, in
violation of the CWA.\8\ FSEEE is a serial litigant that has
challenged the agency's use of fire retardant in court over the
past two decades.\9\
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\4\40 CFR 122.
\5\40 CFR 122.27.
\6\Id.
\7\Forest Service Employees for Environmental Ethics vs. U.S.
Forest Service, Case 9:22-cv-00168-DLC Filed October 11, 2023, United
States District Court of Montana.
\8\Id.
\9\Id.
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The majority of fire retardant is dropped on land, and, in
very rare cases, retardant is dropped into water. To mitigate
this, in 2011, the USFS completed an Environmental Impact
Statement (EIS) on ``Nationwide Aerial Application of Fire
Retardant on National Forest System Land'' (2011 EIS). The 2011
EIS prohibits delivery of fire retardant directly into
waterbodies, or into 300-foot buffers surrounding waterbodies,
with an allowed exception to protect life and for safety.
Current direction in the 2011 EIS has demonstrated to be very
effective at reducing retardant drops into water. In the 2022
Draft Supplemental EIS on ``Nationwide Aerial Application of
Fire Retardant on National Forest System Land'' (2022 Draft
EIS), USFS disclosed that 457 out of 56,868 total retardant
drops (less than one percent) made between 2012 and 2019 were
into avoidance areas on National Forest System (NFS) lands.\10\
Of these drops, ``213 intrusions landed partially in water,
either in accordance with the exception to protect human life
or public safety (23 intrusions) or due to accident (190
intrusions).''\11\ In total, the USFS dropped approximately
102,362,031 gallons of fire retardant on NFS lands during this
period.\12\
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\10\Forest Service, Draft Supplemental Environmental Impact
Statement, February 2022, https://www.fs.usda.gov/sites/default/files/
2022-02/2022-Aerial-Fire-Retardant-DraftSEIS.pdf.
\11\Defendant United States Forest Service's Response in Opposition
to Plaintiff's Motion for Summary Judgment, Forest Service Employees
for Environmental Ethics vs. U.S. Forest Service, Case 9:22-cv-00168-
DLC Filed October 11, 2023, United States District Court of Montana.
\12\Id.
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While the current lawsuit under the CWA is still ongoing,
there are serious concerns that this could lead to significant
restrictions on the use of aerial fire retardant. Acquiring an
NPDES permit would create significant and costly bureaucracy
for the use of fire retardant but would not materially change
aerial application requirements nor actual resource effects on
the ground in the long term. A rulemaking by the EPA to
establish a general permit for fire retardant is not an
immediate solution and will lead to massive amounts of
bureaucratic paperwork and delays, according to the USFS:
The development of a general permit for fire
retardant discharges will require the acquisition of
significant information regarding fire retardant, its
uses, existing practices, and its impacts to waters.
EPA must identify the types of retardants and
applications that require permit coverage, and it must
develop permit conditions, including effluent
limitations, sufficient to meet Clean Water Act
requirements. EPA must give public notice of a draft
general permit, provide an opportunity for public
comment, and respond to those public comments prior to
issuing the permit. EPA must consult with outside
parties to develop permit conditions that meet several
state, tribal, and federal requirements, including the
Endangered Species Act, the Coastal Zone Management
Act, and the National Historic Preservation Act. EPA
also plans to work with nonfederal permitting
authorities to assist them in developing their own
NPDES general permits. EPA estimates that this
administrative process--involving development,
proposal, and issuance of general permits--will take
approximately two and a half years, and is dependent on
timely actions by outside parties.\13\
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\13\Id.
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Additionally, EPA has delegated permitting authority to
most states.\14\ Potentially, each of the 48 individual state
and territory regulatory agencies with NPDES authority would
also need to develop their own general permit using EPA's
general permit as a model. Once a permit is established at the
national and state level, the USFS would have to apply for each
permit.\15\ Any court ruling has the potential to be nation-
wide and affect the Department of the Interior (DOI), state
fire agencies, and the Department of Defense (DOD). The delay
would be caused by the bureaucracy of up to 48 agencies
establishing a permit and USFS, and other agencies, applying
for up to 48 permits.\16\ This would put millions of people and
billions of dollars of infrastructure at risk.\17\ A years-long
paperwork process should not stand in the way of protecting
lives.
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\14\U.S. Environmental Protection Agency, ``About NPDES,'' https://
www.epa.gov/npdes/about-npdes.
\15\Defendant United States Forest Service's Response in Opposition
to Plaintiff's Motion for Summary Judgment, Forest Service Employees
for Environmental Ethics vs. U.S. Forest Service, Case 9:22-cv-00168-
DLC Filed October 11, 2023, United States District Court of Montana.
\16\U.S. Environmental Protection Agency, ``NPDES State Program
Authority,'' https://www.epa.gov/npdes/npdes-state-program-authority.
\17\Letter from NASFR to Secretary Vilsack, March 7, 2023.
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The use of fire retardant as a tool to save lives, protect
structures, and contain wildfires is invaluable. Retardant will
also inevitably be dropped into water at some point, as ``the
only way to prevent entirely accidental discharges of
retardants to waters is to prohibit their use entirely.''\18\
The ``Forest Protection and Wildland Firefighter Safety Act of
2023'' would protect the continued use of fire retardant by (1)
authorizing USFS and DOI to use fire retardant in fire
suppression, control, or prevention; and (2) exempting the use
of retardant by USFS and DOI from permitting requirements under
the CWA. This is a bipartisan bill that is being co-led by
Representative Panetta (D-CA). Senator Lummis (R-WY) is leading
companion legislation in the Senate.
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\18\Id.
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COMMITTEE ACTION
H.R. 1586 was introduced on March 14, 2023, by Rep. Doug
LaMalfa (R-CA). The bill was referred to the Committee on
Natural Resources, and within the Committee to the Subcommittee
on Federal Lands. The bill was also referred to the Committee
on Transportation and Infrastructure, and the Committee on
Agriculture. On March 23, 2023, the Subcommittee on Federal
Lands held a hearing on the bill. On May 17, 2023, the Full
Natural Resources Committee met to consider the bill. The
Subcommittee on Federal Lands was discharged by unanimous
consent. Rep. LaMalfa (R-CA) offered an amendment in the nature
of a substitute, designated LaMalfa_01. Rep. Val Hoyle (D-OR)
offered an amendment to the amendment in the nature of a
substitute, designated Hoyle #1. The amendment was withdrawn by
unanimous consent. The amendment in the nature of a substitute
offered by Rep. LaMalfa was adopted by voice vote. The bill, as
amended, was then ordered favorably reported to the House of
Representatives by a roll call vote of 22 yeas to 17 nays, as
follows:
HEARINGS
For the purposes of clause 3(c)(6) of House rule XIII, the
following hearing was used to develop or consider this measure:
hearing by the Subcommittee on Federal Lands held on March 23,
2023.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
Section 1 names this bill the ``Forest Protection and
Wildland Firefighter Safety Act of 2023.''
Sec. 2. Permitting requirements for certain discharges of fire
retardant
Section 2 authorizes the use of fire retardant by the
Secretary of the Interior and the Secretary of Agriculture for
fire suppression, control, or prevention activities. The
section also exempts the Department of the Interior, Department
of Agriculture, Department of Defense, states, Tribes, and the
Federal Emergency Management Agency from needing a permit under
the Clean Water Act to use aerial fire retardant.
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
COMPLIANCE WITH HOUSE RULE XIII AND CONGRESSIONAL BUDGET ACT
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the Rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
bill from the Director of the Congressional Budget Office:
H.R. 1586 would allow federal, state, local, and tribal
firefighting agencies to use fire retardants to prevent and
respond to wildfires without first obtaining a National
Pollutant Discharge Elimination System permit. Because the
Forest Service and other agencies currently use fire retardants
without this permit, CBO estimates that enacting the bill would
have no effect on federal spending.
The CBO staff contact for this estimate is Julia Aman. The
estimate was reviewed by H. Samuel Papenfuss, Deputy Director
of Budget Analysis.
Phillip L. Swagel,
Director, Congressional Budget Office.
2. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective this bill, as ordered reported, is to allow the
Secretary of the Interior and the Secretary of Agriculture to
use a fire retardant, chemical, or water from aircraft for fire
suppression, control, or prevention activities.
EARMARK STATEMENT
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
UNFUNDED MANDATES REFORM ACT STATEMENT
According to the Congressional Budget Office, H.R. 1586
contains no unfunded mandates as defined by the Unfunded
Mandates Reform Act.
EXISTING PROGRAMS
Directed Rule Making. This bill does not contain any
directed rule makings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
APPLICABILITY TO LEGISLATIVE BRANCH
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
Any preemptive effect of this bill over state, local, or
tribal law is intended to be consistent with the bill's
purposes and text and the Supremacy Clause of Article VI of the
U.S. Constitution.
CHANGES IN EXISTING LAW
As ordered reported by the Committee on Natural Resources,
H.R. 1586 would make no changes in existing law.
DISSENTING VIEWS
H.R. 1586 would explicitly authorize the Secretary of the
Interior and the Secretary of Agriculture to discharge chemical
fire retardants for fire suppression, control, or prevention
activities, and would waive Clean Water Act (CWA) permit
requirements for any such application by federal land
management agencies and state and tribal governments.
Introduction of this legislation was spurred by a recent
lawsuit filed by the Forest Service Employees for Environmental
Ethics that alleges that U.S. Forest Service (Forest Service)
is in violation of CWA permit requirements related to the
discharge of pollutants from a point source to the waters of
the United States. In response to the lawsuit, the Forest
Service has admitted to releasing chemical fire retardants
without a CWA permit in emergency fire suppression efforts that
would be nearly impossible to carry out in a manner that
guarantees absolutely nothing is discharged into the water.
They argued that the risk of environmental damage from
catastrophic wildfire far outweighs any environmental damage
caused by accidental release of fire retardant into waterways,
which the agency estimates happen in less than 1% of the
thousands of annual delivery loads.
Since the committee proceeding on H.R. 1586, the judge
agreed with the Forest Service and the lawsuit was dismissed.
There has been no action or injunction, and aerial delivery of
fire retardant has not been delayed or stopped. The threat of
litigation does not need to be an excuse to waive longstanding
environmental laws, especially when those laws are working as
designed.
Furthermore, the Forest Service has requested EPA develop a
CWA National Pollutant Discharge Elimination System general
permit for point source discharge fire suppressant. EPA has
considered the request and noted that ``EPA is aware that the
Forest Service has a substantial amount of information on fire
suppressant application that will be made available as we
develop the general permit.'' A Memorandum of Understanding
will allow for the continued use of fire retardant while the
permit is being developed. Given the ongoing development of a
general permit for the application of fire retardant, it is
questionable whether the threat of litigation warrants a
wholesale waiver of the CWA.
At markup, Representative Hoyle offered and withdrew a
compromise amendment developed in conjunction the
Transportation and Infrastructure Committee, which has
jurisdiction over CWA. The proposed substitute amendment would
have authorized the use of fire retardant during the
development of the general permit. This would prevent an
injunction from upending the use of retardant without
undermining critical environmental protections. Unfortunately,
the amendment was subject to a germaneness point of order and
had to be withdrawn. Going forward, Committee Democrats
encourage the majority to work with the Committee on
Transportation and Infrastructure on an alternative arrangement
that can guarantee the ongoing use of fire retardant without
compromising established law and environmental safeguards.
Raul M. Grijalva,
Ranking Member.
[all]