Libby Lawmaker Eyes Legislative Change to Lake Koocanusa Selenium Standard

Montana Water Quality Standard Up for Debate Before House Natural Resources Committee

By Amanda Eggert, Montana Free Press

A Republican lawmaker from Libby on Wednesday spoke on behalf of a bill that seeks to strike the existing water quality standard for selenium in Lake Koocanusa and double the limit.

Selenium is a chemical element entering Lake Koocanusa, a reservoir shared by British Columbia and Montana, from Canadian mining company Teck Coal. Even in small quantities, selenium can hamper reproductive success in fish. Selenium toxicity can also lead to spinal and facial deformities in fish.

Opposing the proposed bill, environmental and conservation organizations, along with representatives from the Montana Department of Environmental Quality and Montana Fish, Wildlife and Parks, described the 0.8 micrograms-per-liter standard the state adopted in 2020 as scientifically based and critical to protect Koocanusa’s fishery from Teck’s metallurgical coal-mining operation. No proponents spoke on behalf of the bill.

Bill sponsor Rep. Steve Gunderson, who sat on an interim study committee that met three times last year to review the Koocanusa selenium standard, said House Bill 473 is intended to establish a Lake Koocanusa selenium standard in the event that the Environmental Protection Agency acts on the Board of Environmental Review’s December petition to invalidate the existing standard.

The BER is a quasi-judicial, governor-appointed body that referees disputes between state agencies like DEQ and the industries they regulate. On Dec. 9, the board voted 5-2 to send a letter, largely drafted by Teck Coal, asking the EPA to toss out the Lake Koocanusa 0.8 microgram-per-liter selenium standard. The BER argued that it’s more stringent than general federal guidance for selenium levels in slow-moving water bodies and therefore out of compliance with Montana’s “stringency statute.”

“If something happens, such as the EPA making the 0.8 standard invalid, what are we going to be left with?” Gunderson said when introducing the bill before the House Natural Resources Committee. “We don’t know — we have no idea.”

Montana DEQ Director Chris Dorrington was the first opponent to offer testimony on HB 473. He said the state worked with federal agencies, regional scientists, and representatives from U.S., Canadian and tribal governments in its nine-year-long process to adopt the 0.8 micrograms-per-liter to protect Koocanusa’s beneficial uses.

“An initiative in which a number is selected outside of the rigor of the public process, the rigor of the involvement of application of state and federal law simply violates the [beneficial uses of this water body],” Dorrington said.

Representatives from Montana Environmental Information Center, the Montana chapter of Trout Unlimited, the Idaho Conservation League, and the Confederated Salish and Kootenai Tribes also opposed the bill.

“We’re very concerned about our fisheries,” Montana Backcountry Hunters and Anglers representative Katjana Stutzer said. “We don’t think that this bill benefits Montanans, and, in fact, we’re sacrificing our fisheries for the benefit of a Canadian mining company.”

CSKT Natural Resources head Richard Janssen Jr., spoke in support of the site-specific selenium standard, describing it as required to protect the Salish and Kootenai tribes’ fishery and culturally related uses of ancestral lands.

“The bottom line is that a foreign company is polluting Montana waters — our waters, your waters, our children’s waters — and our people deserve better,” he said.

After public testimony concluded, Gunderson fleshed out his reasoning for sponsoring HB 473. He said the process leading to DEQ’s rule adoption in December 2020 was rushed. He said he has harbored concerns about how the rule was adopted “from day one.”

“The bottom line is that a foreign company is polluting Montana waters — our waters, your waters, our children’s waters — and our people deserve better.” said Richard Janssen, Jr.

“We didn’t have a consensus [among] biologists in the work group that gave the numbers,” he added. “We had a wide range, from 0.6 to 1.6.”

Gunderson also expressed doubt that a more restrictive water quality standard is required to protect fisheries in rivers and lakes impacted by Teck’s mining operation. If selenium toxicity is preventing fish from advancing beyond the larval stage, he argued, that would be reflected in overall fish populations, which would be crashing.

“Where is the damage, where is the loss of fisheries?” he said.

Gunderson said he’s working on an amendment that would specify that the legislatively adopted standard would only be implemented in the event that the EPA decides to nix the standard it had previously signed off on. (As the agency that administers the Clean Water Act, the EPA has ultimate authority to approve or disapprove water quality standards in Montana.)

In response to a question from Rep. Jill Cohenour, D-East Helena, about other legislatively established water quality standards in Montana statute, Dorrington, with the DEQ, said he’s unaware of any.

The House Natural Resources Committee did not take immediate action on HB 473.

Courtesy of Montanafreepress.org

A cutthroat trout with a gill plate deformity, a telltale sign of selenium pollution. The trout was photographed in early August 2022 on the Elk River of British Columbia, which flows into Lake Koocanusa. Credit: Robert Dillon