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New Rule to Protect Lake Koocanusa from BC Mining Contaminant Clears Legislative Hurdle

Lincoln County Republicans sought to delay setting water quality standard for the mining contaminant selenium

A new water quality standard aimed at protecting Lake Koocanusa and the Kootenai River from Canadian mining contaminants cleared a major legislative hurdle last week, overcoming resistance from Lincoln County Republicans who said the state is attempting to “strong-arm” a British Columbia mining giant responsible for discharging pollutants into Montana’s waterways.

Calling the six-year process “rushed” and saying they were “blindsided” by the proposal, the GOP lawmakers, including Sen. Mike Cuffe, R-Eureka, and Rep. Steve Gunderson, R-Libby, sought to delay the rulemaking process until next year, when a new administration is at the helm of state agencies. The lawmakers’ characterization of a “hurried” process was uniformly rejected by scientists, tribal leaders, business owners, conservationists, state and federal regulators, and fellow legislators, who pointed to a years-long collaboration aimed at protecting Montana’s environmental and economic interests.

According to the Montana Department of Environmental Quality (DEQ), the state has also worked closely with the British Columbia Ministry of the Environment and Climate Change Strategy to develop a site-specific standard for the pollutant selenium, which for years has been leaching downstream and crossing the international border into Lake Koocanusa and the Kootenai River. The goal for both Montana and British Columbia (B.C.) is to adopt similar standards to protect aquatic life, while providing Montana and the federal government with enforcement options should the contamination continue.

“We have a standard currently on the books that is not protective,” DEQ Director Shaun McGrath said. “By having a protective standard, it gives us the ability to work with our counterparts in B.C. and ensure that those runoffs are treated before they hit our water bodies.”

The alternative, McGrath said, is that Montana may find itself on the hook for cleanup costs or other retroactive efforts to protect other downstream entities “because we didn’t set a standard that put the onus on the company that did this in the first place.”

“If we wait until we are cleaning up that whole watershed as opposed to just cleaning up the runoff from the waste-rock piles, that is an expensive fix,” McGrath said. “We are trying to get ahead of the contamination that we know is happening and that we know is going to happen for decades.”

Selenium is a micronutrient essential to biological functions in animals and certain plants at small quantities; however, at elevated levels, selenium can adversely impact a broad range of aquatic life, including fish, and birds that eat aquatic life. High selenium levels like the ones turning up in Lake Koocanusa and its fish species can cause reproductive defects, reduced growth and mortality in fish populations.

The rising levels of selenium entering Lake Koocanusa have been traced to mining operations in B.C.’s Elk Valley, where Teck Resources owns and operates five metallurgical coal mines and is seeking additional permits to expand its footprint.

The elevated levels are evident in both water and fish tissue samples, prompting DEQ in 2012 to list the sprawling reservoir as threatened. There are currently no Montana mines that contribute selenium to Lake Koocanusa or the Kootenai River.

In a rare move last year, a bipartisan slate of U.S. senators from all four states bordering B.C. pressed provincial leaders to recognize the urgency of safeguarding U.S. waters from upstream threats. There has been almost no resistance from U.S. stakeholders to enacting more stringent standards.

But that didn’t stop a group of GOP lawmakers from arguing that moving forward with the rulemaking to set a new standard was irresponsible, despite assurances from leading experts who have spent more than a half-decade collecting data to inform the new criteria.

Members of the Montana Legislature’s Water Policy Interim Committee (WPIC) convened Oct. 13 at the behest of Cuffe and Gunderson, who pressed committee members to delay the process for six months, at which point a new governor will helm the DEQ. Although the committee’s vice chair, Sen. Jeff Welborn, R-Dillon, made a motion to delay the process, it failed on a 5-5 vote along party lines.

Cuffe, whose close involvement in the process to set a site-specific standard at Lake Koocanusa made his opposition surprising to some committee members, said he didn’t anticipate the rule moving forward this year.

“The data as I understand it does not show an immediate crisis and there are far too many questions,” Cuffe told committee members during a Zoom conference call. “The record does show a hasty process, and we were blindsided by the extreme reduction this standard calls for.”

The proposed standards are a culmination of more than six years of collaboration with leading selenium experts and the Lake Koocanusa Monitoring and Research Working Group that included years of public meetings, data collection and a peer-reviewed modeling report.

University of Montana research scientist Erin Sexton has been studying selenium in B.C.’s Elk Valley for two decades, and was among the first to document pollution crossing the B.C.-Montana border and its bioaccumulation in the Kootenai watershed and its native fish species. Based on her involvement in the years-long collaborative process with a multitude of agencies and stakeholders, which set a goal of adopting a new standard by the end of 2020, Sexton said she doesn’t see how anyone can be “blindsided.”

“I have been participating in this process since our first meetings in Eureka in 2014,” Sexton said. “This is the most collaborative process I have ever been involved in. We have had full participation from tribes both in B.C. and south of the border in Montana and Idaho. We have worked with the state of Montana, federal entities, the province of B.C., and Teck Coal. From someone who has been involved with this from the beginning, it is disappointing to hear that some people feel this process has been rushed. I have never seen a more scientifically comprehensive or collaborative process to date.”

This summer, the Montana Board of Environmental Review initiated a formal rulemaking process to establish site-specific water quality standards for selenium in Lake Koocanusa and the Kootenai River. The decision follows a request made by the DEQ, with the goal of adopting water quality standards that allow it to enforce clean water criteria across an international border.

Once a standard is set, enforcement could be triggered through a range of options, including the Boundary Waters Treaty, the International Joint Commission, Superfund, the Natural Resource Damage Assessments, or the International Water Court.

The current selenium standard for water bodies was established in 1987 at 5 micrograms per liter. In 2016, the U.S. Environmental Protection Agency (EPA) developed updated recommended national criteria at a value of 1.5 micrograms per liter for lakes and reservoirs and 3.1 micrograms per liter for rivers, while also suggesting to use site-specific standards, whenever possible.

In Montana, the DEQ opted to pursue a site-specific standard for Lake Koocanusa and the Kootenai River, with the Board of Environmental Review proposing a standard of 0.8 micrograms per liter.

“This standard was developed based on the unique, site-specific aquatic ecosystem of the water body,” according to a record of decision by DEQ.

The proposed standard for the Kootenai River is 3.1 micrograms per liter and is based on EPA’s recommended national criteria.

Rep. Gunderson emerged as an opponent of moving forward with the rulemaking, which he said has been “fast-tracked” and pays “no consideration to the economic impacts on our side of the border.

“Why is Montana setting a standard to get leverage to strong-arm the B.C. government and a Canadian firm to conform?” Gunderson asked committee members.

However, proponents of the new rule said the economic consequences could be dire if Montana fails to set a standard soon, particularly as Northwest Montana businesses depend on the region’s prized watersheds to support tourism, outfitting, fly fishing, and more.

“Why are Montana representatives asking us to press pause on something that protects Montana?” Sen. Jill Cohenhour, D-Helena, a WPIC board member, said. “This has been a very long process and very collaborative, and there has been a very clear timeline in place. There will still be plenty of time for the public to engage in the process, but to me this should go forward.”

The DEQ is accepting public comment through Nov. 23, and will host a public hearing on Nov. 5 via Zoom conference call.

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