Press Release: Court Upholds Selenium Water Quality Standard for Lake Koocanusa

HELENA, MT — A Montana District Court yesterday upheld Montana’s selenium water quality standard for Lake Koocanusa (Koocanusa Reservoir), affirming the science-based limits necessary to protect fish and other aquatic life. The lake’s watershed is impacted by harmful pollution that originates from open-pit Canadian coal mines upstream. The decision maintains the 0.8 micrograms per liter standard adopted by the Montana Board of Environmental Review in 2020 based on thorough scientific analysis and stakeholder involvement. These standards are designed to protect fish in the watershed, and were subsequently reviewed and approved by the U.S. Environmental Protection Agency in 2021.

“We’re happy to see that the Court made the right decision by protecting Montana’s waters from upstream Canadian coal mine pollution,” said Derf Johnson, deputy director for the Montana Environmental Information Center. “Montana’s water quality standards for selenium are based in science. Not only do they protect our water quality, but they also protect wildlife and the outdoor recreation economy that depends on clean water.”

Montana and Idaho-based conservation groups filed suit in 2023 after the Montana Board of Environmental Review, joined by the mining corporation and Lincoln County Commissioners, attempted to illegally invalidate its own selenium standard for Lake Koocanusa. The board reversed course on the rule they had already approved after a majority of new members were appointed in 2021, arguing that it was more stringent than federal guidelines – despite EPA assurance that it complied with the Clean Water Act. The District Court ruled in favor of conservation groups and the Montana Department of Environmental Quality, which separately filed suit over the board’s reversal.

“The Court’s decision to uphold the Lake Koocanusa selenium water quality standard is just as significant for the health of the downstream fisheries and waters of Idaho, as it is for Montana,” said Stephen Pfeiffer, wild fish & hydropower policy manager at Idaho Rivers United. “This standard is designed to be protective of an invaluable river system, and the communities that rely upon its health.”

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 Elk Valley Resources operates four coal mines. A study by the U.S. Geological Survey found that the selenium pollution in the Elk Valley watershed is unprecedented and “among the largest documented increases in the primary literature.” Elk Valley Resources is owned by notorious Anglo-Swiss commodity trader, Glencore, and Japanese steelmaker, Nippon Steel. This decision is especially timely, as Glencore has proposed a major, 5,000-acre expansion to the Fording River Mine, which could exacerbate the selenium pollution problem.

“The idea of a foreign mining corporation adding toxic levels of pollution to the Kootenai River in Idaho, and simultaneously pushing forward plans to expand mining coal into the 2060s, is untenable,” said Jennifer Ekstrom, North Idaho director for the Idaho Conservation League. “The Kootenai River in Idaho is already designated as impaired under the Clean Water Act with selenium from these mines — showing that the Court made the right decision in upholding Montana’s water quality standard. Now comes the work of making sure that these mining corporations clean up their pollution and meet that standard.”

“This Court decision affirms that Montana’s selenium water quality standard is both legally sound and supported by the best available science,” said Andrew Gorder, legal and policy director for the Clark Fork Coalition. “Any effort to reverse or weaken that standard is simply not in the best interests of our water resources or the people of Montana.”

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, these 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 pollution is now being recorded 350 river miles downstream of the Canadian coal mines. The trout population of the upper Fording River, located below Elk Valley Resources’ 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 Court’s careful analysis correctly rejected unlawful overreaches by the Board and Elk Valley Resources and upheld water quality standards that protect Montanans’ water,” Mary Cochenour of the Cochenour Law Office, who was lead counsel on this case. “This is an important victory for all Montanans, especially those who use and recreate on Lake Koocanusa and the Kootenai River.”

“This decision is a major victory for the communities and fish that depend on a clean Lake Koocanusa watershed,” said Shiloh Hernandez, senior attorney with Earthjustice’s Northern Rockies Office. “It is unconscionable that we would allow a coal company to poison one of our most biodiverse and culturally significant watersheds. We are thankful that the Court sided with the EPA, Montana Department of Environmental Quality, and conservation groups in upholding this science-based selenium standard.”

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

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

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