Conservation groups filed suit in Montana District Court today challenging a Montana Board of Environmental Review (BER) decision attempting to invalidate a selenium water quality standard that was adopted to protect Lake Koocanusa from harmful pollution. The pollution originates upstream from open-pit Canadian coal mines. The board initially adopted the 0.8 parts per million standard in 2020 after nearly a decade of research and stakeholder involvement. However, with the appointment of a majority of new members in 2021, BER subsequently reversed course and issued an order to invalidate its own rule. The board’s order is not based on any new facts or science and the elimination of the site-specific standard could allow Teck Coal, the mining company responsible for the pollution, to continue releasing harmful levels of selenium into the Lake Koocanusa watershed.

At high levels, selenium can be lethal to fish and other aquatic life. Ninety-five percent of the selenium entering Lake Koocanusa comes from British Columbia’s Elk Valley, where Teck Coal operates four coal mines. Teck Coal currently has plans for a major expansion, which will likely only exacerbate the selenium pollution problem.

“Montana’s clean water is our most valuable natural resource, and we all have to be vigilant in assuring that it’s protected,” said Derf Johnson, deputy director of the Montana Environmental Information Center. “BER’s proposal to sacrifice Lake Koocanusa for the benefit of a foreign coal company is an affront, especially to the groups that have spent years working to protect it. The courts should ensure our clean water is protected from extractive foreign interests.”

The BER decision is also being challenged by the Montana Department of Environmental Quality (DEQ) in District Court. Both DEQ and the Environmental Protection Agency (EPA) have refused to recognize BER’s mandate to invalidate the current standard and initiate a new rulemaking. DEQ alleges that the board exceeded its statutory authority when it invalidated the selenium rule. Conservation groups allege the same DEQ claims while also bringing an additional claim that challenges the board’s reasoning behind its order.

“It is unconscionable that Montana’s Board of Environmental Review would ignore recommendations from both the Environmental Protection Agency and Montana Department of Environmental Quality on the selenium standard, allowing a Canadian coal company to pollute our state’s waters,” said Mary Cochenour, senior attorney with Earthjustice’s Northern Rockies Office. “Lake Koocanusa is beloved for its recreation opportunities and is a uniquely biodiverse watershed. We must fight any attempt to allow a foreign company to destroy this regional gem.”

BER initially approved the selenium rule after a rigorous, years-long process of vetted scientific research and cooperation between state and federal governments, research institutions, and tribal nations. In the months following BER’s promulgation of the 0.8 parts per million standard, Teck and Lincoln County Commissioners petitioned the board to review the rule, arguing that the standard is not valid because it is more stringent than comparable federal guidelines. BER then reversed course despite EPA assurance that the selenium standard was in compliance with the Clean Water Act.

“The protection of Montana’s water resources should not be subject to shifting political winds,” said Andrew Gorder, legal director for the Clark Fork Coalition. “The BER’s decision-making must be guided by sound science and the law, not the interests of a foreign mining company.”

Lake Koocanusa straddles the Montana-Canada border and is part of a vast and uniquely biodiverse Kootenai River watershed that stretches from British Columbia’s Elk River Valley through Montana and Idaho and into the Columbia River. For decades, Teck’s coal mines have polluted Canada’s Elk River and downstream Lake Koocanusa with high levels of selenium, which is known to hamper reproduction rates and cause deformities in native and threatened aquatic species. The trout population of the upper Fording River, located below Teck’s mines, collapsed in recent years and the company was ordered to pay a $60 million fine under Canada’s Fisheries Act for its role.

The Elk and Kootenai River systems are the traditional waters of the Confederated Salish and Kootenai Tribes and have long been central to the Tribes’ cultural practices, community, transportation, and economic livelihood. Selenium contamination from Teck’s Elk Valley mines is destroying these invaluable ecological and cultural resources.

The Kootenai River below Lake Koocanusa flows downstream into Idaho where the Kootenai Tribe of Idaho has been working to recover endangered Kootenai sturgeon and burbot fish populations. Pollution from Teck’s mines in the Elk River Valley is showing up in the tissues of fish in the Kootenai River and could undermine these recovery efforts. The 0.8 parts per million standard for Lake Koocanusa approved by Montana DEQ in 2020 is critical to limiting the impact of selenium pollution on downstream recovery efforts.

“BER’s flawed decision to invalidate a legal and protective water-quality standard at the behest of a foreign coal mining company leaves Montana and downstream Idaho waters exposed to increasing selenium pollution, to the detriment of the local communities and native fish species that rely on a healthy Kootenai River,” said Stephen Pfeiffer, conservation associate with Idaho Rivers United.

“We applaud the Montana DEQ’s efforts to defend the stringent selenium rule that would protect Idaho fisheries and water quality,” said Jennifer Ekstrom, conservation associate with the Idaho Conservation League. “Kootenai River sturgeon have been around since the time of the dinosaurs, and too much selenium interferes with their ability to reproduce. It would be a shame for them to go extinct because of under-regulated coal mining in British Columbia.”

Earthjustice is representing the Montana Environmental Information Center, Clark Fork Coalition, Idaho Conservation League, and Idaho Rivers United in the lawsuit.

Twelve First Nations and Tribes sent a letter to Prime Minister Trudeau and Premier Eby last month calling on the governments of Canada and British Columbia to act to protect their recognized traditional territories from legacy, operational, and proposed mining in British Columbia.