Fort Peck is located in the most remote part of the continental US. Credit: ERIKA PETERMAN / MTFP file photo

HELENA — Two legislators representing tribal communities in northeast Montana had bills heard in committee Wednesday that would add additional requirements to the state’s process for permitting pipeline construction.

The bills are aimed at protecting drinking water, indigenous cultural sites, and the environment.

Opponents say the legislation would end any hope of building the Keystone XL pipeline, construction of which was stalled by a Montana federal judge in November, a decade after the project was proposed.

Sen. Frank Smith, D-Poplar

Sen. Frank Smith, D-Poplar, is sponsoring Senate Bill 97, and Rep. Bridget Smith, D-Wolf Point, is sponsoring House Bill 271. Both legislators’ districts cover the more populated areas of the Fort Peck Indian Reservation along the north bank of the Missouri River, as well as the sparsely populated land north and west of Fort Peck Reservoir. Sen. Smith’s district also covers most of the Fort Belknap Indian Reservation.

For years, tribal members have said the Keystone XL pipeline’s proposed route threatens important religious and archeological sites, as well as the $300 million Assiniboine & Sioux Rural Water Supply System. That water system has provided drinking water from the Missouri River to large portions of northeast Montana after pollution from past oil drilling made much of the local groundwater saltier than the sea and contaminated with carcinogens.

Supporters of the pipeline say it will bring millions of dollars in taxes to state and county budgets and create jobs in one of the remotest areas of the state — and country — that sees little investment.

Rep. Bridget Smith, D-Wolf Point

Both bills would amend the Major Facility Siting Act, the law governing how the Montana Department of Environmental Quality permits large-scale construction projects like oil pipelines, while also protecting natural resources.

Proposed additions to the MFSA include requirements that DEQ ensure pipelines avoid “sensitive areas” including tribally recognized cultural sites, ensure pipelines have additional shut-off valves located where water sources are threatened, and ensure more robust leak-detection methods.

Another provision would require DEQ to revise its environmental review process so that environmental impact statements for pipelines address their effects on cultural sites.

By far the biggest proposed change to the law is a new requirement that construction of pipeline projects “must be completed within seven years” of the permit’s granting, which is three fewer years than the construction permit granted to Keystone XL in 2012.

That’s the part some opponents claim would kill Keystone XL.

DEQ issued the Keystone XL permit seven years ago, and under the proposed bills that permit would retroactively expire.

“Only KXL would be subject to this punitive retroactive revocation,” Sandra Barnett, TransCanada’s U.S. compliance manager for Keystone XL, told the Senate Natural Resources Committee at a hearing on SB 97.

“TransCanada has worked in good faith over the past seven years to move this project toward construction. We relied upon the state and its regulatory processes. We relied upon a 10-year permit. And we trusted in the certainty of the Montana regulatory process, and because of that we have made very significant investments in this state,” she said.

Barnett also said the safety and environmental goals of SB 97 are already accomplishable under state and federal law, and that Keystone XL would bring millions in tax dollars to state and local budgets.

Others who spoke in opposition to SB 97 include the executive director of the Montana Petroleum Association, two commissioners from counties on the proposed pipeline route, trade union members, civil contractors, and the Montana Chamber of Commerce. Their common concern was the loss of jobs and tax revenue that would result from Keystone XL losing its permit.

Proponents who spoke in favor of the bill include multiple members of the Fort Peck Tribal Executive Board and Assiniboine and Sioux Rural Water Supply System Board of Directors, the chairman of the Fort Peck Assiniboine tribe, a representative of the Confederated Salish and Kootenai Tribes, and Assiniboine members of the Fort Belknap Reservation. The common theme of the bill’s proponents is the threat Keystone XL poses to cultural sites and drinking water, and DEQ’s failures to address those concerns during the permitting process.

A map of the proposed route of the Keystone XL pipeline shows the pipeline's proximity to the Fort Peck Dam, the Fort Peck Dam spillway, the Fort Peck Indian Reservation, and the reservation's water system intake.
The proposed route of the Keystone XL pipeline in northeastern Montana. Sources: USGS, U.S. Census Bureau, Montana DEQ Credit: ERIC DIETRICH / MTFP

“The Montana Department of Environmental Quality did not evaluate how the water system would be affected by the Keystone pipeline. Instead, DEQ granted a certificate under the Major Facilities Citing Act in 2012,” said Dan Wenner, an attorney for the Fort Peck Tribes.

“This bill is about the only measure we’ve seen that might address these issues and give us more current information before this project proceeds,” said Majel Russell, another Fort Peck tribal attorney.

Sheryl Eagle, with the Montana-based indigenous justice group Indian People’s Action, said she hoped the committee would take into account the toll the pipeline could take not just on the environment, but on tribal communities.

“Locating pipelines close to the reservation will bring man camps that will increase Montana’s missing and murdered indigenous women crisis,” she said.

After Eagle’s testimony, committee vice-chair Jeffrey Welborn, R-Dillon, asked that speakers stay on topic.

“If we could stay a little closer to the title of the bill, that would be appreciated,” he said.

Environmental groups also spoke in favor of SB 97, including Northern Plains Resource Council, one of the plaintiffs in the federal lawsuit that temporarily stalled construction of Keystone XL.

During the question period of the hearing, Democratic vice-chair Sen. JP Pomnichowski, of Bozeman, asked TransCanada’s Barnett whether the company had consulted with tribal nations about Keystone XL’s construction. Barnett said that was the U.S. Department of State’s responsibility.

Smith also briefly spoke in favor of SB 97.

After the Senate hearing adjourned, the parties headed to the House Natural Resources Committee meeting on the House version of the bill, HB 271. Smith outlined the threat Keystone XL poses to the Assiniboine & Sioux Rural Water Supply System, and the parties repeated their arguments.

“I want it stopped or rerouted,” Smith said as she introduced the bill.

The Fort Peck Executive Board made the intent of its support for HB 271 clear in a statement read by board member Jestin Dupree, which said the bill’s purpose is “to terminate TransCanada’s certificate of compliance by March 30, 2019, and to establish that TransCanada relocate the proposed pipeline parallel with the Northern Border Pipeline.”

Northern Border is a natural gas pipeline operated and partly owned by TransCanada that runs through the northern portion of the Fort Peck Reservation. It does not cross the Missouri upstream of the Fork Peck water system.

Alan Olson, with the Montana Petroleum Association, said it’s very difficult to site pipelines next to each other. He also said that when Keystone XL’s route changed in Nebraska, the Montana federal judge overseeing the lawsuit against the pipeline decided the EIS no longer accurately applied to the route.

Barnett, with TransCanada, said MDEQ and the U.S. State Department chose the current route through Montana from among multiple possibilities, and that it will run parallel to Northern Border for 26 miles.

The Senate and House committees did not take further action on the bills Wednesday.

Hunter Pauli is a Seattle-born, Missoula-based freelance investigative reporter and a graduate of the University of Montana School of Journalism.You can follow Hunter on Twitter.