Boundary water disputes


Imagine discovering that the clear, rushing water of the river in your remote neck-of-the-woods is contaminated with nitrates, sulfates, and selenium -- a toxic heavy metal that causes deformities in fish. Then, to complicate things, imagine that the source of the pollution is upstream in another, neighboring country with its own leaders and environmental laws. What would you do?

That's the situation on the Kootenai River (spelled Kootenay in Canada) in northwestern Montana. Five mines digging high-grade metallurgical coal along the Elk River, a tributary of the Kootenai in British Columbia, have been contaminating the Kootenai for years, according to a recent study conducted by University of Montana scientists. Now, four of those mines want to expand, one new coal mine is being proposed, and three new mine exploration projects are under way.

“This is an international problem that will require an international solution," Michael Jamison, Crown of the Continent program manager with the National Parks Conservation Association, recently told The Missoulian. The first step, he and others say, is to enlist the aid of the International Joint Commission, a U.S.-Canada organization created over a century ago to handle these kinds of water disputes.

The International Joint Commission was established by the 1909 Boundary Waters Treaty. At that time, Canada and the U.S. were bickering over rights to irrigation water diverted from rivers like the Milk, which spans the Montana-Alberta border in dry but fertile farm country. The treaty addressed these irrigation concerns, along with issues of waterway navigability and water quality. To mediate future conflicts, the treaty set up the IJC, a permanent commission consisting of three Americans and three Canadians appointed by each country's highest level of government. The commissioners have a mix of policy and science experience, and the two chairmen -- one from each country -- serve on the IJC as a full-time job.

The IJC takes up a case when both the U.S. Secretary of State and the Canadian Minister of Foreign Affairs request it to do so. The IJC has dealt with dozens of cross-boundary water disputes, from the Skagit River in Washington to the Great Lakes and Niagara Falls. The IJC has no direct political authority to make or enforce laws. But it has commissioned scientific studies and made policy recommendations that have had significant impact.

Those favoring the IJC's involvement in the Kootenai case point to the impact it had in a similar case on the nearby North Fork Flathead River. When Sage Crick Corp. proposed new coal mines on a tributary of the North Fork in B.C. in the 1980s (see HCN 5/9/07 "Battle line on the northern border"), Montana Sen. Max Baucus pushed to have the case taken up by the IJC. The Commission conducted a three-year study of the North Fork watershed, and made a strong recommendation against the mining proposals, saying it would degrade water quality and destroy critical fish habitat.

"The IJC was very successful in making the transboundary Flathead issue one that had scientific integrity," says Jamison. "(The IJC recommendation) provided a benchmark that everyone agreed was an honest benchmark, from which future decisions could be made. ... It basically had moral authority."

The B.C. government "wasn't fond of the (IJC's) decision," recalls Dave Hadden, director of Headwaters Montana. But the decision was something that mine opponents held up again and again, as the B.C. government pushed to permit the projects. The controversy intensified in the early 2000s, when a different company proposed a mine in a different part of the North Fork watershed; again, mine opponents wielded the IJC decision. The mines were never permitted, and in 2010, Montana Governor Brian Schweitzer and British Columbia Premier Gordon Campbell signed a Memorandum of Understanding to protect the cross-border watershed, putting it off-limits to development.

For now, Jamison is requesting a moratorium on new coal mines to buy some time. Following that, he says, the IJC is the obvious place to start to resolve the Kootenai dispute in a similar fashion, starting with a coordinated and comprehensive scientific study. If the IJC doesn't get involved, and politicians on either side of the border are left to fight over the issue, that can spell trouble, says Jamison, "we need policy grounded in something that we can all agree on."

According to Jamison, the IJC is a trusted space. "You can convene all your scientists under one umbrella, and together, they can create a unified recommendation that is place-based instead of interest-based."

Marshall Swearingen is a High Country News intern.

Images courtesy Flickr user rian_bean and Wikimedia commons.

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