Clark Fork Coalition, others to intervene on Koocanusa selenium challenge
(Missoula Current) Four conservation organizations want to join the Montana Department of Environmental Quality in its lawsuit over water quality standards in Lake Koocanusa.
On Tuesday, the Clark Fork Coalition, Montana Environmental Information Center, Idaho Conservation League and Idaho Rivers United asked a Lewis and Clark County judge for the right to intervene on behalf of DEQ in its case against the Montana Board of Environmental Review, Lincoln County Board of Commissioners, Teck Coal Limited, a Canadian coal-mining company, and Montana’s attorney general. If their request is approved, it will make two lawsuits where the conservation groups are defending Lake Koocanusa's selenium limit.
The four organizations argue they have a right to intervene because water is a natural resource that is owned by the public and they represent the public. And the waters and fisheries of Montana and Idaho need protection from pollution caused by Canadian coal mines.
Just north of the Montana border, Teck Resources' coal mines have released selenium- and nitrogen-laced wastewater into Canada’s Elk River for decades. In the early 1990s, the selenium concentration at the mouth of the Elk River started exceeding British Columbia water quality guidelines, and now, it’s increased to four times the B.C. guidelines.
Unfortunately, the Elk River feeds into Lake Koocanusa. In 2014, the international Lake Koocanusa Monitoring and Research Working Group started studying the contamination after Montana Fish, Wildlife & Parks found that selenium levels rose in seven species of fish in the lake between 2008 and 2013. Studies show that more than 90% of the selenium in Lake Koocanusa comes from the Elk River.
After six years of sampling, computer modeling, and with input from selenium experts from British Columbia and the U.S. - including the Environmental Protection Agency, USGS, tribes and the states of Idaho and Montana - the working group’s findings and recommendations led DEQ to propose special selenium limits in September 2020 for Lake Koocanusa’s water column, fish tissue and the Kootenai River below the Libby Dam.
The water-column limit was set at 8 parts per million to protect fish both in the lake and downstream, including the endangered Kootenai River white sturgeon and the Lower Kootenai River burbot, which is on the verge of being listed as a threatened species. However, the lake water at the border already averages 3 parts per million more than what the standard allows.
In December 2020, the Board of Environmental Review - a group of Montana citizens appointed by the governor to oversee DEQ - approved DEQ’s site-specific standards.
Then, in 2021, the Gianforte administration took over and appointed new members to the Board, who proved to be receptive to Teck Coal’s argument that the water column standard was excessive. The EPA's water column standard for selenium is 1.5 parts per million but it allows states to create science-based site-specific standards where conditions are abnormal. However, Teck Coal, backed by Lincoln County, argued that Montana standards couldn’t be more stringent than federal standards.
The EPA approved the site-specific standards, but the Board sided with Teck Coal that the standard was too stringent and told the DEQ to write a new rule for a different standard. But Montana law doesn’t give the board the authority to order a new rule.
DEQ sued the Board, Teck Coal, Lincoln County and the state of Montana challenging the Board’s overreach, but it didn’t defend the 8-parts-per-million standard. So that’s why the conservation groups want to intervene in DEQ’s case: They say DEQ isn’t going far enough to defend Montana’s waters.
In their own lawsuit filed in May, the conservation groups have already challenged both the board’s overreach and the elimination of the standard. But now, the defendants want to combine the two cases. So the groups want to intervene in DEQ’s case to be sure their claim is not pushed aside.In their intervention request, the groups say the politics of state government means they can’t trust DEQ to follow through.
“Both (DEQ) and (the Board) are tied to the Governor of Montana, and in the coming months, leadership at the agency could change, and priorities could shift. Making matters even more politically awkward, the Attorney General has intervened in this case—not to defend the rule in favor of clean water—but in opposition to it, aligning the “State of Montana” with a foreign coal mining corporation instead of protecting the public’s ownership interest in the State’s surface waters.”
In the meantime, the Confederated Salish and Kootenai Tribes and the Kootenai Tribe of Idaho - collectively called the Transboundary Ktunaxa Nation - have submitted a proposal to the governments of Canada and the U.S. to address the mining pollution.
In March, President Joe Biden and Prime Minister Justin Trudeau committed to working with the transboundary Ktunaxa to “reach an agreement in principle by this summer to reduce and mitigate the impacts of water pollution in the Elk-Kootenay watershed.”
The Ktunaxa proposal, sent July 20, would create an international watershed board to conduct an independent, transparent and accountable scientific assessment of the pollution and develop solutions to restore the waters and address violations of the Boundary Waters Treaty, the U.S. Clean Waters Act and the Canadian Fisheries Act.
With summer at an end, Canada has yet to respond. But the U.S. State Department has responded, saying they are studying the proposal.
Contact reporter Laura Lundquist at email@example.com.