Environmentalists sue to protect Lake Koocanusa selenium rule

Environmental groups in Montana and Idaho are defending a water quality standard Montana adopted in 2020 by suing a quasi-judicial board that’s spent the past year trying to invalidate it.

The lawsuit represents the latest development in a fight over environmental protections that involves a coal-mining operation in British Columbia and state, federal and tribal governments’ responses to mining-related pollution.

At issue is a standard for selenium, a chemical element that even in small quantities can hamper reproductive success in fish and lead to spinal and gill deformities. Selenium pollution from Teck Resources’ strip mines enters the Elk River in British Columbia and then flows into Lake Koocanusa, a waterway that spans the Canada-U.S. border, and the Kootenai River. For more than a decade, environmental groups and tribes from the Ktunaxa Nation have pressured governments on both sides of the U.S.-Canada border to do more to protect waterways from selenium, which becomes increasingly concentrated as it moves up the food chain. Environmentalists are concerned that selenium contamination in U.S. waterways will result in the kind of population crashes that have been recorded in British Columbia fisheries in recent years.

Conservation organizations celebrated the Montana Department of Environmental Quality’s decision in late 2020 to adopt a 0.8-micrograms-per-liter selenium standard for Lake Koocanusa. State regulators deemed it necessary to protect fisheries in Montana.

The relief was short-lived, though. In 2021, the Montana Board of Environmental Review, a quasi-judicial body that oversees disputes between DEQ and the companies it regulates, attempted to invalidate the limit at the request of Teck Resources and the Lincoln County Commission. When that effort ran up against a recently passed law that stripped the board of its authority to issue its own water quality standards, the BER petitioned federal regulators to take up its case. It asked the U.S. Environmental Protection Agency to toss out the standard, which the federal government has so far signaled it is not inclined to do.

Now there are two lawsuits over the matter. In January, DEQ filed a lawsuit to overturn BER’s order from April of 2022 directing the state to start over with the rulemaking process. DEQ’s lawsuit is unusual, in part because the two agencies are administratively connected: DEQ lends support staff to BER, which is composed of modestly reimbursed governor appointees.

The lawsuit a coalition of conservation groups filed last week is similar to the one DEQ brought in January, but it goes a step further. In addition to asking courts to overturn the BER’s final order on selenium, the plaintiffs want a Lewis and Clark County District Court judge to affirm the process DEQ used to reach its selenium standard, namely evaluating site-specific conditions to develop a site-specific standard. The plaintiffs would like courts to underscore state regulators’ ability to adopt standards more stringent than federal guidelines as required by the conditions of a given waterway.

Mary Cochenour, an Earthjustice attorney representing the plaintiffs, said the lawsuit is an attempt to “keep Montana moving forward on this issue.”

“The lawsuit is an important step to address the trans-boundary selenium issue that’s been a concern for decades,” she told Montana Free Press.

According to the environmentalists’ lawsuit, selenium concentrations in Lake Koocanusa have quadrupled since 1986, and more than 95% of that selenium is attributed to coal mining in British Columbia. BER’s order is “not based on new facts or science,” and is “arbitrary and capricious,” the plaintiffs maintain.

Derf Johson, deputy director of Montana Environmental Information Center, the lead plaintiff in the case, underscored the issue’s politicization — and escalation — in recent years. Earlier this year, President Joe Biden and Canadian Prime Minister Justin Trudeau committed to reaching “an agreement in principle” by this summer to work in partnership with tribal governments to “reduce and mitigate the impacts of water pollution in the Elk-Kootenay watershed.” Many stakeholders are doubtful that the commitment will result in Canada cracking down on the selenium and nitrogen pollution impacting Canadian, U.S. and tribal fisheries.

Teck, which netted multi-billion-dollar profits last year, is seeking to expand its mining operation by nearly 18 square miles.

Johnson said MEIC’s goal with the lawsuit is to ensure that the 0.8 standard remains intact. He’s worried, he said, that the administration of Montana Gov. Greg Gianforte will buckle under industry pressure and enter into a settlement that would result in a weaker standard.

Earlier this year, Montana Rep. Steve Gunderson, R-Libby, introduced a bill in the Montana House of Representatives that sought to override DEQ’s standard. Though he amended House Bill 473 to specify that the replacement standard would only be valid if the federal government acts on BER’s petition to toss out the 0.8 standard, it failed to garner enough votes.

A coalition of Native American and First Nations governments has for years appealed to federal and state regulators for stronger environmental protections.

Last month, a dozen First Nations and Native American tribes sent a letter to Trudeau and British Columbia Premier David Eby seeking greater government oversight as Canada invests in mining expansions that would further damage tribes’ traditional territories and ways of life. The letter warns of irreparable harm to transboundary ecosystems and echoes a similar one tribal governments submitted to both Trudeau and Biden late last year.

In an email to MTFP, a Teck Resources spokesperson said selenium levels in Koocanusa have been stable for more than a decade and argued that current concentrations are not impacting fish populations.

“Teck is strongly in favor of having legal, scientifically based standards in place to protect water quality and aquatic life in the Koocanusa Reservoir. However, Montana’s proposed water column criteria does not match real-world data seen in the fish themselves and is actually below natural background levels found in some upstream waterways,” Teck wrote in a statement.

Teck also highlighted its Elk Valley Water Quality Plan, which is geared toward “stabilizing and reducing the selenium trend in the watershed.” Teck has committed to investing more than $1 billion to prevent selenium from entering waterways; the chemical element has proven difficult to remove once introduced into a river or lake.

Reporter Amanda Eggert can be reached at aeggert@montanafreepress.org. The Montana Free Press is a Helena-based nonprofit newsroom. To read the article as originally published, click here.