A long-running dispute over a Montana water-quality standard that involves a Canadian coal mine, a border-straddling waterway, and a suite of local, state and federal officials drew to a close this week.
Montana District Court Judge Kathy Seeley ruled on April 8 that the selenium standard the Montana Department of Environmental Quality adopted for Lake Koocanusa in 2020 can stand. The Lake Koocanusa standard, which involved an extensive scientific and rulemaking process, is 0.8 micrograms per liter.
Selenium, a chemical element that’s toxic to fish above certain thresholds, has been accumulating in the Kootenai River watershed for decades as a result of a massive coal-mining operation in British Columbia. Precipitation releases the selenium that naturally occurs in mine waste, and treatment technologies have demonstrated limited success for removing it.
For years, Elk Valley Resources has been lobbying state and local officials to reverse the standard. EVR, which operates several coal mines in British Columbia, argues that aquatic life in Lake Koocanusa would be adequately protected under the looser federal selenium standard of 1.5 micrograms per liter.
Conservation groups that have championed the 0.8 selenium standard since DEQ adopted it cheered Judge Seeley’s ruling, describing it as a win for healthy aquatic ecosystems and science-based environmental management.
“We’re happy to see that the Court made the right decision by protecting Montana’s waters from upstream Canadian coal mining pollution,” Montana Environmental Information Center Deputy Director Derf Johnson said in an April 9 press release about the ruling. “Montana’s water quality standards are based in science. Not only do they protect our water quality, but they also protect wildlife and the outdoor recreation economy that depends on clean water.”
In a statement to Montana Free Press, a spokesperson for EVR emphasized that fish tissues are sampling within accepted ranges. (The selenium concentration for fish tissue is less contentious than the “water column” concentration for Lake Koocanusa, which EVR often struggles to meet.)
“EVR is in favor of having legal, scientifically based standards in place to protect water quality and aquatic life in Koocanusa Reservoir,” Chris Stannell wrote in an email to Montana Free Press.
The dispute over transboundary mining pollution has been unfolding over the better part of a decade, long before Glencore, a Swiss commodities trader, acquired EVR from Teck Coal for $7 billion. Conversations have escalated to the highest echelons of U.S. and Canadian governments, and have implicated the Columbia River Treaty that the two governments signed in 1961.
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The selenium battle of Lake Koocanusa
In late March, the state Board of Environmental Review sided with a Canadian mining company in its assertion that the Department of Environmental Quality broke Montana law when it adopted a strict new standard for selenium pollution entering Lake Koocanusa, which straddles the U.S.-Canada border. DEQ is holding firm to its standard — and that…
While tiny amounts of selenium are critical to cell development, too much can lead fish to spinal and facial deformities or result in reproductive failure. Fish eggs exposed to too much selenium in a given river or lake are often either too deformed to reach adulthood, or they fail to hatch at all.
The accumulation of selenium in Lake Koocanusa has long worried environmental groups working to protect the health of the Columbia River fishery, which supports imperiled species such as bull trout, burbot and Kootenai River White Sturgeon.
One U.S. Geological Survey study published in 2023 found that selenium concentrations in Elk River, a tributary of the Kootenay River, which flows into Lake Koocanusa, had increased sixfold since 1979. The following year, USGS published a related study highlighting the presence of mining-related selenium pollution 350 miles downstream of EVR mines.
Once selenium enters a waterbody, it’s nearly impossible to remove. In recognition of this fact, EVR has invested billions of dollars in water-treatment technology designed to remove selenium from mining waste before it can reach the watershed. But the conservation groups that intervened in the lawsuit to back the DEQ argue EVR’s treatment isn’t sufficient to keep downstream fish populations from crashing, as happened to Fording River westslope cutthroat trout in 2020. That’s why the groups — Montana Environmental Information Center, Clark Fork Coalition, Idaho Conservation League and Idaho Rivers United — argue EVR should be held to the more protective standard.
Seeley’s 15-page ruling hinged on a little-known state agency called the Board of Environmental Review and a law the Montana Legislature passed in 2021 that clipped its authority.
BER is composed of seven governor-appointed members that referee permitting disputes between DEQ and the companies and industries it regulates. During the waning days of Democratic Gov. Steve Bullock’s administration, BER approved the 0.8 selenium standard. In 2021, Republican Greg Gianforte took office and changed BER to include more individuals sympathetic to industry concerns, raising the ire of environmentalists.
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Study says Canadian coal mines put unparalleled pollution in Montana-bound waters
The concentrations of selenium and nitrate entering the Elk River and Northwest Montana’s Kootenai watershed as a result of coal-mining operations in British Columbia are likely without measured precedent, according to a new study authored by U.S. Geological Survey scientists.
The new BER balked at the stricter standard, arguing that it runs counter to a state law preventing state environmental regulators from adopting stricter standards than its federal counterparts unless they can demonstrate why the stricter standard is necessary.
But BER’s effort to toss out the 0.8 standard in favor of the 1.5 microgram-per-liter limit was thwarted by another Montana statute. In 2021, lawmakers passed Senate Bill 233, which stripped the BER of its rulemaking authority. Judge Seeley zeroed in on this law in her 15-page ruling.
Seeley wrote that BER’s 2022 rule was “based on an erroneous application of law” because “BER no longer had the statutory authority to engage in rulemaking, which includes the amendment or repeal of a prior rule.”
EVR didn’t immediately respond to MTFP’s follow-up question about whether the company will appeal the ruling.
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