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Army Corps’ Credibility Seen at Stake in Swamp, Mine Legal Fight

Jan. 24, 2022, 11:00 AM

A titanium mine proposed near Georgia’s Okefenokee Swamp is becoming a battleground over whether developers nationwide can trust the Army Corps of Engineers’ word that planned developments won’t harm federally protected streams and wetlands.

The Corps said last week that developers “can no longer rely” on its official determinations on avoiding protected wetlands under the now-defunct, Trump-era Navigable Waters Protection Rule.

Unreliable Trump-era determinations may upend the long-held practice of giving businesses certainty of relying on Corps determinations for five years to make “good faith” business decisions, said Larry Liebesman, a senior adviser at the environmental and water permitting firm of Dawson & Associates.

A company affected by a rule change could argue in court that it would be penalized if the Corps revisits the project within the five-year window, said Liebesman, a former Justice Department environmental lawyer.

“That could have a real impact on a company that could have a long-range plan,” he said. “Once you’re in the permit process, it’s expensive.”

Corps jurisdictional determinations are crucial to applying Clean Water Act protections for waterways and ephemeral wetlands. Its regulations stipulate that determinations are usually good for five years and are based on whatever definition of Waters of the United States, or WOTUS, was in effect at the time.

‘Dramatic Change’

The Okefenokee Swamp, part of Okefenokee National Wildlife Refuge, is one of the highest-profile battlegrounds over the Trump-era rule because it’s North America’s largest blackwater swamp and a biologically diverse storehouse of carbon. Scientists and the U.S. Fish and Wildlife Service contend the mine could damage and possibly drain the swamp.

The Trump-era rule was used to determine in 2020 that the Clean Water Act doesn’t apply to wetlands near Okefenokee that Twin Pines Minerals LLC is targeting for a titanium mine—a claim the Fish and Wildlife Service and environmentalists dispute following the rule’s vacatur.

The Corps said in a Jan. 5 memo that it won’t revisit determinations made under the Trump-era rule unless new information about those wetlands comes to light. It also won’t “unilaterally” reopen an approved jurisdictional determination based on the Trump-era rule, spokesman Doug Garman said.

Builders consider the Corps’ determinations to be final and binding for five years even if a court declares the regulation they’re based on illegal, said Michael Mittelholzer, assistant vice president of environmental policy at the National Association of Home Builders.

“If we cannot rely on final jurisdictional determinations—specifically those that don’t identify any jurisdictional features—that is a dramatic change, and the agency needs to be clear about that,” Mittelholzer said.

Draining the Swamp

Environmentalists and some federal agencies are pushing the Corps to revisit its jurisdictional determinations made under the Navigable Waters Protection Rule, and the fight over the proposed Twin Pines titanium mine is one of the most high profile cases.

“These wetlands are all the more critical because the loss of these wetlands could irreversibly harm the hydrology of one of our nation’s greatest natural resources,” said Kelly Moser, senior attorney for the Southern Environmental Law Center in Chapel Hill, N.C.

The mine is now amid a state permitting process, and it is “inappropriate for me to speculate” on how federal regulations affect the mine, Twin Pines president Steve Ingle told Bloomberg Law.

The Navigable Waters Protection Rule lifted Clean Water Act protections for many streams and wetlands across the U.S. But a federal court in Arizona vacated the rule in 2021, and the Biden administration implemented an earlier rule, re-extending the wetlands protections.

New Information

At Okefenokee, advocates are hanging their hopes on the Corps policy saying that new information would allow it to revisit the Trump-era jurisdictional determination.

University of Georgia research has provided evidence that the mine could severely damage part of the swamp—new information the Army Corps needs to reopen the case, Moser said.

Fish and Wildlife in December wrote letters to the Environmental Protection Agency and the Corps, saying the corps used a now-overturned and obsolete rule to determine that the titanium mine won’t affect federally-protected wetlands that scientists say are irreplaceable.

The corps should “ensure the avoidance and minimization” of harm to Okefenokee, wrote Leopoldo Miranda-Castro, Fish and Wildlife’s regional director.

Sen. Jon Ossoff (D-Ga.) followed up with a call for the EPA to overrule the Army Corps and declare Okefenokee waters federally protected. Ossoff’s office declined to comment about whether the EPA responded to his letter, and the EPA didn’t respond to requests for comment this week.

The Corps declined to comment on whether it would revisit the determination.

To contact the reporter on this story: Bobby Magill at bmagill@bloombergindustry.com

To contact the editors responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com