March 1, 2025 - The agriculture industry is still strong in Montana, but one Legislative bill pits the coal mining industry against the ag industry for a second time over water quality.

On Wednesday, three eastern Montana farmers and ranchers made the long drive to Helena to appeal to the House Natural Resources Committee to preserve their stock and irrigation water and vote down  House Bill 587.

“The trap we don’t want to get into is saying, ‘Well, it isn’t the best water in the world so we can pollute it or contaminate it up to a certain point and beneficial use isn’t hurt.’ That is a slippery slope, and somebody like me should have to put up with that,” said Clint McRae, Rosebud Creek area rancher. “They’ve been mining down there since 1920-something - don’t change the law now.”

In 1977, Congress passed the Surface Mine Control and Reclamation Act to balance coal production with environmental protections, particularly related to reclamation. Since then, the mining industry has pushed bills at the federal and state level to amend the Act to reduce environmental restrictions.

Since 1980, the Montana Department of Environmental Quality defined “material damage” as environmental contamination, particularly to the hydrologic balance of water quality and quantity, caused by mining outside the boundary of the permitted mining area. If mining activities resulted in water loss or contamination outside the permitted area that violated water quality standards, the mine had caused material damage that had to be corrected.

Then a few years ago, the mining industry found that the U.S. Office of Surface Mining has no formal definition for “material damage.” So over the past two sessions, the mining industry has tried to change Montana law to write its own definition.

In 2023, the Legislature passed HB 576, which among other things, watered down the language, eliminating the requirement that mines not violate water quality standards. Under HB 576, the damage had to be “significant long term or permanent.” The DEQ had to get approval from the U.S. Office of Surface Mining before it could implement the change. On Jan. 15 of this year, the Office of Surface Mining rejected the definition.

“A violation of a State or Federal (water quality standard) as a result of a surface coal mining and reclamation operation is not allowed under (the Surface Mine Control and Reclamation Act) and would constitute material damage to the hydrologic balance,” the Office of Surface Mining wrote.

Now, the mining industry has returned to try again with a new definition that still allows more degradation than the current definition. Proponents include Westmoreland Mining, Montana Coal Council, Treasure State Resources Association, Montana Association of Oil, Gas and Coal Counties and the Montana Chamber of Commerce.

“The standard that was put in place was almost distilled water,” said bill sponsor Rep. Gary Parry, R-Colstrip. “This says they don’t have to improve the outside water if there’s another (contamination) release that’s allowed.”

Mining industry representatives often remind legislators of all the money the coal severance tax provides to the Montana coal trust fund. In 2023, George Harris of the Montana Coal Council said Montana produced more than 28 million tons of coal, which contributed $2.4 billion to the coal trust fund. That’s what Montana’s ranchers are up against in coal country.

The mining industry is also one of the groups, along with agriculture, that pushed for narrative water quality standards in Montana rather than more defined and enforceable numerical standards.

Rancher Clint McRae said he was not opposed to mining but he was pro-agriculture. And agricultural producers near coal mines have water rights that should be protected. If the water quality drops such that it becomes more dangerous for cows or crops, that means ag producers can’t use their full water right. McRae cited an incident on his property near Colstrip when Miller Coulee was mined and a spring dried up. After reclamation, it came back, but the water had 30 times the lethal limit for sulfates and it killed some of his cattle.

“When a mine permit is granted, the company agrees to parameters. There could be 20 years between that and reclamation. There is something absolutely wrong if, at the 11th hour, we start changing the law that they agreed to at the beginning because they look at it as an inconvenience,” McRae said. “(Mining) should be done without passing the cost of mining onto agriculture. It should be done without weakening a requirement that’s been in place for 40 years. All we’re asking for is the status quo. There have been millions of tons of coal mined with the current law in place.”

Tom Baratta, Bull Mountain Land Alliance chairman who lives outside the Signal Peaks mine, said he was opposed to another part of the bill that would allow mining companies to submit their own hydrological and geological data in support of their operation. The language resembles recent changes to laws related to gravel pits, which allows applicants to submit their own measurements. During a recent Missoula County district court case, attorneys revealed that DEQ hadn’t verified the data provided by a gravel pit company.

“If the state is not able to collect the data on their own, we would ask that an independent third party provide this data, rather than the mine operators themselves. What sense does it make to the citizens of Montana to allow mining activity to go unchecked while these large out-of-state corporations damage our land, destroy our water resources and push generational ranchers off their lands, leaving us without a means to hold these corporations accountable for the damage they do?” Baratta said. “Under this definition, impacts to my water would only be considered material damage when there was a quantifiable impact that precludes my use of that water. Why must I be completely precluded from using my water before the state recognizes those adverse impacts as material damage?”

Archie Hayes Jr., who manages the Tongue River Reservoir, testified as to what it’s like to have to deal with water contaminated by nearby coal mines. He remembers 1999 for two reasons: the dam was rebuilt and mines started discharging coal-bed methane. He said there was a peak in the discharge, and since then, crappies, a species of fish, started dying off. He’s also going to have to replace a gate-guide and other parts in the dam because the salts in the water have eaten the metal away. Irrigators who use the water also have to replace their pumps and irrigation equipment for the same reason.

According to the U.S. Geological Society, coal-bed methane discharge typically contains high concentrations of sodium and other ions that could increase dissolved salt concentrations in the river. Increased inputs of sodium and other ions have the potential to alter the river's suitability for agricultural irrigation and aquatic ecosystems.

Hayes said FWP suspects the reservoir can no longer sustain aquatic insects, a known indicator of water quality, so the fish are starving to death.

“Tongue River Reservoir used to be the crappy capital of the world. There was no limit. You could fish there until your boat sank with crappies. But today, the species is almost endangered, along with other species of fish in the reservoir. This year, the Fish, Wildlife & Parks survey shows that it’s the lowest fish count they’ve ever had in the reservoir,” Hayes said. “We are still getting coal-bed methane discharges from the old Decker Coal (mine) that is now owned by Lighthouse (Resources). They don’t have a permit, according to the DEQ website. But they’re still pumping about 2,000 gallons a minute into that reservoir.

“We have water users on the lower end of the Tongue River and sometimes, the water is so toxic, they’re afraid to exercise their water right,” Hayes said.

Lighthouse Resources declared Chapter 11 bankruptcy in December 2020. Although activities of three mines on the banks of the Tongue River Reservoir have degraded the water, DEQ Air, Energy & Mining division chief Dan Walsh said he has not found material damage at the reservoir.

A representative of the Montana Environmental Information Center testified in opposition, but no agricultural groups stepped up to support the ranchers. In 2023, the Montana Farmers Union testified against HB 576.

The committee took no action on the bill.