DEQ nixes requested increase in Koocanusa water standard
Laura Lundquist
(Missoula Current) The state of Montana has rejected another effort to water down the selenium limits for Lake Koocanusa in northwest Montana.
On Tuesday, the Montana Department of Environmental Quality denied a July 2 petition from the Lincoln County Commissioners to loosen the site-specific water quality standard for selenium in Lake Koocanusa.
The county commissioners requested that DEQ adopt a water-column standard of 1.5 micrograms per liter instead of the lower 0.8 micrograms per liter that the Board of Environmental Review – which oversees DEQ – adopted in December 2020 and the U.S. Environmental Protection Agency approved two months later. Separate standards are used for fish tissue and the Kootenai River downstream of Lake Koocanusa.
The county commissioners presented new information since 2020 regarding fish tissue contamination and recent research. They also pointed to a recent change in how the EPA defined “steady state.” Finally, the commission said the existing site-specific standard would lead to economic hardship to Lincoln County.
But after an Aug. 13 hearing to evaluate that information, the DEQ concluded there was insufficient evidence to justify changing the water-column limit. While the commissioners claimed there would be economic hardship, the DEQ found “the petition provides no evidence to support this claim.”
“Revisions to EPA’s guidance materials do not warrant changes to Montana’s water-column selenium standard for Lake Koocanusa,” the DEQ wrote in its Sept. 2 response to the Lincoln County Commissioners. “The Department retains discretion to use approaches that differ from those provided in the technical support material.”
Selenium concentrations in Lake Koocanusa already exceed the 0.8 micrograms per liter standard due to contaminated water flowing in from Canada. Studies show about 95% of the selenium in Lake Koocanusa comes from the Elk River in British Columbia, Canada. The coal mines of Elk Valley Resources, formerly Teck Resources, have been leaching selenium and nitrogen into the Elk River and subsequently Lake Koocanusa for decades.
In November 2021, the Province of British Columbia also proposed a selenium standard of 0.85 micrograms per liter for Canada’s half of Lake Koocanusa.
The Kootenai River flows out of Lake Koocanusa and travels west into Idaho. Idaho’s Clean Water Act report lists the Kootenai River as impaired for selenium, and sampling in 2019 found mountain whitefish with selenium levels in their reproductive organs that exceeded EPA limits. Because the Clean Water Act requires states to meet downstream water quality standards, the state of Montana must improve selenium concentrations before the river reaches Idaho.
However, since DEQ’s ruling in December 2020, Elk Valley Resources, formerly Teck Resources, and Lincoln County have challenged the standard, petitioning the Board of Environmental Review to reject DEQ’s rule, saying it’s more stringent than federal standards. Normally, state standards can’t be more stringent than EPA standards, but site-specific standards can be more restrictive if they’re calculated using EPA-approved methods.
In April 2022, the Board of Environmental Review - now made up of new citizen members appointed by the Gianforte administration - ignored the DEQ’s analysis, declared the water-column standard to be more stringent and ordered DEQ to start a new rule-making process. Instead, DEQ provided written justification for the 0.8 concentration limit.
Those actions are now being challenged in state district court. DEQ has sued the Board of Environmental Review for overstepping its authority when it told the DEQ to start over. Under the law, the board can only tell DEQ to reconsider and DEQ must then decide what the next steps are. In addition, some intervenors, including the Clark Fork Coalition, joined DEQ's lawsuit and are challenging the ruling that the 0.8 concentration is “more stringent.”
Lewis and Clark County district judge Kathy Seeley heard oral arguments on July 29 but has yet to issue a ruling.
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.