Okefenokee Swamp: Federal clean water rules may again apply to proposed mine(File/Photo courtesy of Joe Cook)
By David Pendered
Opponents of a proposed mine 2.9 miles from the Okefenokee Swamp are heartened by a federal judge’s ruling to significantly narrow a Trump-era water rule that had ended federal protection for the wetlands where the mine would be located.
“It’s a good thing, long overdue, and I hope it helps protect the swamp,” Rena Ann Peck wrote in an email Tuesday. Peck serves as executive director of the Georgia River Network, which has helped lead the opposition to the proposed mine in southeastern Georgia.
The ruling released Monday by U.S. District Judge Rosemary Márquez, of the District of Arizona, overturns a ruling by the Trump administration that eliminated Clean Water Act protections for millions of miles of streams and a significant portion of the nation’s wetlands.
The Trump-era rule, known as the Navigable Waters Protection Rule, redefined the waters that were federally protected. The 2020 rule was supported by major farm and road construction firms and criticized by many environmental organizations.
The Okefenokee Swamp was not an issue in the lawsuit that resulted in Monday’s court ruling.
However, the wetlands adjacent to the Okefenokee Swamp where the mine is proposed were among the waters that were deemed no longer protected after the 2020 revisions.
The U.S. Army Corps of Engineers cited the 2020 NWPR in determining that the corps no longer had a role in overseeing the application for a mine on the southeastern edge of the Okefenokee Swamp. Twin Pines LLC proposes to extract sands rich in minerals from an area located 2.9 miles from the southeastern edge of the swamp.
The corps’ decision left the permitting process for the proposed mine solely in the purview of Georgia’s Department of Natural Resources, specifically in the hands of the Environmental Protection Division.
The latest development in the EPD review is the July 16 submission of responses by the applicant to questions posed by the DNR in April. Twin Pines Minerals LLC has now provided two rounds of responses to DNR’s questions. The first set of responses was submitted June 25.
A significant component of the responses is additional information on Twin Pines’ Surface Mining Permit and Mining Land Use Plan. This plan is to provide details on the environmental protections the company intends to provide “for the protection of the environment and resources of the State,” EPD has said in a fact sheet.
Meanwhile, the geographic reach of the judge’s ruling is to be determined. The ruling could apply only to Arizona. Or, the Biden administration could determine the ruling to be nationwide.
Biden’s EPA is already in the process of revoking the Trump-era NWPR. The EPA and Department of the Army announced June 9 their intent to revise the rules. The judge cited the expected revisions as among the reasons supporting her decision.
In announcing the review of the definition of the Waters of the United States, EPA Administrator Michael Regan observed in a statement:
- “After reviewing the Navigable Waters Protection Rule as directed by President Biden, the EPA and Department of the Army have determined that this rule is leading to significant environmental degradation.
- “We are committed to establishing a durable definition of ‘waters of the United States’ based on Supreme Court precedent and drawing from the lessons learned from the current and previous regulations, as well as input from a wide array of stakeholders, so we can better protect our nation’s waters, foster economic growth, and support thriving communities.”
Marquez cited the reductions in areas protected in Arizona since the Trump-era rule was implemented:
- “Between June 22, 2020 and April 15, 2021, the Corps made approved jurisdictional determinations under the NWPR of 40,211 aquatic resources or water features, and found that approximately 76% were non-jurisdictional.
- “The Agencies have identified 333 projects that would have required Section 404 permitting under the CWA prior to the NWPR but no longer do.
- “The reduction in jurisdiction has ‘been particularly significant in arid states.’
- “In New Mexico and Arizona, nearly every one of over 1,500 streams assessed under the NWPR were found to be non- jurisdictional – a significant shift from the status of streams under both the Clean Water Rule and the pre-2015 regulatory regime. “Impacts to ephemeral streams, wetlands, and other aquatic resources could have ‘cascading and cumulative downstream effects,’ and the Agencies ‘have heard concerns from a broad array of stakeholders . . . that the reduction in the jurisdictional scope of the CWA is resulting in significant, actual environmental harms.”