Laura Lundquist

(Missoula Current) Montana has set limits on the amount of selenium pollution in Lake Koocanusa that comes from Canadian coal mines, and now, an international commission may add more information and funding to the issue.

During Wednesday’s meeting of the Legislative Water Policy Committee, Rob Sisson, one of six commissioners on the International Joint Commission, explained what would happen if the U.S. and Canadian governments write an order, or reference, for the commission to look into selenium pollution crossing the U.S-Canada border.

The two nations created the International Joint Commission in 1912 to oversee specific lake and river systems along the border under the guidance of the 1909 Boundary Waters Treaty. Both nations, in addition to the Tenaha Nations, have drafted references for the commission to look at the Elk River-Lake Koocanusa selenium problem, but nothing is final yet.

“The reference tells us what we need to do,” Sisson said. “My guess is the role of the IJC would be more of a convening of people, bringing people together to build trust, to build communication and primarily transparency. Just as a consumer of news, I’d say there’s a lot of mistrust among different parties, and one of the things the IJC brings is we’re generally trusted by parties that the mining interests of British Columbia would like to trust them, and that would be our power.”

In September 2020, after several years of data collection and input from several scientists, the Montana Department of Environmental Quality proposed site-specific water quality standards for selenium in Lake Koocanusa after Montana Fish, Wildlife & Parks found that selenium levels were increasing in seven fish species in the lake between 2008 and 2013. Studies show that more than 90% of the selenium in Lake Koocanusa comes from just north of the Canadian border in the Elk River mines of British Columbia.

The site-specific standards are more limiting than the federal general standard but would protect fish, a few that are listed as threatened, both in the lake and in the Kootenai River below the dam. But since then, Republicans, led by those in Lincoln County, have challenged the limits, backing the Canadian coal mining company Teck Resources and mining associations.

In January, DEQ sued the Gianforte-appointed Montana Board of Environmental Review for overstepping its authority when it ordered DEQ to start over on developing Montana’s site-specific standard. Four months later, four conservation groups also sued the Board of Environmental Review for invalidating the standard. Last week, a judge granted a motion to allow the conservation groups to intervene in DEQ’s lawsuit.

In May, Gov. Greg Gianforte wrote a letter urging U.S. Secretary of State Anthony Blinken not to involve the International Joint Commission in the Lake Koocanusa matter, calling the step “premature.”

During Wednesday’s meeting, DEQ director Chris Dorrington said bringing in the Joint Commission had the downside of involving more bureaucracy but also the upside of bringing more balance and resources.

“When you add multi-nation governments, you’re not talking about swiftness and speed,” Dorrington said. “However, the activity and the requirement on the state to put something like this together if Montana were to lead - we just don’t have the resources to do it. Do I think the IJC reference in bringing all the parties together could yield a positive outcome from an inclusion standpoint? And could they fund - this is my ask - multiple years of data collection and monitoring and the bringing together of the parties. Yeah, I think that would be beneficial.”

During public comment, Jason Gildae, U.S. Environmental Protection Agency Region 8 water policy advisor, said the EPA supports a Joint Commission reference for the Koocanusa system and are following the situation closely. Gildae verified that the EPA had accepted Montana’s site-specific selenium standard in February 2021 after doing a robust review.

Sen. Walt Sales, R-Manhattan, asked if the state would lose its ability to regulate state waters. Sisson said the Joint Commission has authority to investigate only what is happening at the border, not farther into the states or provinces.

“The selenium issue will be an issue for a thousand years. So it seems like we need a framework that’s going to be there for a long time to monitor and report so all the players, all the scientists, all the governments know what’s going on in real time as opposed to the vagaries of budgets, staffing, whether it’s the state, federal or provincial governments getting it done,” Sisson said. “The IJC would be accountable to provide that information and make sure everyone has it on an ongoing basis.”

Sen. Willis Curdy, D-Missoula, asked Sisson to write a letter to the U.S. State Department and Global Affairs Canada highlighting the urgency of figuring out what they’re going to do to control the pollution.

“In some discussions last interim, both the Kootenai Tribes of Idaho and the Confederated Salish and Kootenai Tribes are - I can’t say they’re on the verge of going to court on this issue, because it’s very important for them. I’m just concerned that at some point, they’re going to say enough’s enough, and they’re going to sue and take it out of both the Canadian Government’s and the state of Montana’s purview,” Curdy said.

In April, the Confederated Salish and Kootenai Tribes and 10 other tribal nations sent a letter to the Canadian government asking it to address the mining in British Columbia that is polluting waterways. According to the letter, the U.S. government, First Nations and Tribes, and the U.S. and Canadian International Joint Commission members have requested a joint commission reference for years, “yet Canada has repeatedly delayed any material progress to (that) end.”

Sisson said the commission had sent a letter two years ago to the U.S. president and Canadian prime minister, telling them how dire the situation was becoming. Sisson added that he’d be headed for Ottawa, Canada, next week for the semi-annual IJC meeting and the selenium issue is on the agenda.

“Under the (Boundary Waters Treaty), it says neither side can send pollution across the boundary. To the IJC, this is a clear violation of the treaty, and if there’s not a reference on this, then the treaty which has worked really well for 120 years is pretty much useless,” Sisson said.

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