Bloomberg Law
Free Newsletter Sign Up
Login
BROWSE
Bloomberg Law
Welcome
Login
Advanced Search Go
Free Newsletter Sign Up

Republicans Try to Protect Famed Swamp Amid Wetlands Fight

Feb. 11, 2022, 11:01 AM

Republicans are backing Georgia state legislation that aims to block a proposed titanium mine and protect the Okefenokee Swamp, possibly intervening in one of the country’s highest-profile battles over federal wetlands protections.

If the bill becomes law, it would be an unusual environmental victory led by Republicans, who generally favor mining over conservation.

The level of Republican support for an environmental measure in Georgia is “unprecedented,” said Joshua Marks, an environmental attorney at Parker Poe Adams & Bernstein LLP in Atlanta.

Five Republicans and one Democrat this week introduced the legislation, H.B. 1289, which would prohibit the Georgia Environmental Protection Division from permitting any mine on Trail Ridge, a natural sandy berm hemming in the eastern side of the Houston-sized Okefenokee National Wildlife Refuge.

‘Wonderland of Nature’

The Okefenokee is a “wonderland of nature” and an “economic engine,” bringing 650,000 annual visitors to a rural region of southern Georgia, said state Rep. Darlene Taylor (R), the bill’s chief sponsor.

“Thus, protecting the swamp from the threats proposed by mining is as important economically as it is from a conservation standpoint,” Taylor said Thursday.

The bill has a fighting chance to become law because many of its co-sponsors are Republican state House committee chairs, and Georgia Gov. Brian Kemp (R) signed a proclamation supporting the swamp, Marks said.

The Okefenokee transcends partisan politics, Marks said.

Battleground State

Efforts by Republicans to avoid draining the swamp is occurring in a battleground state where the biologically diverse and carbon-rich Okefenokee has become a national symbol for what’s at stake in the fight over which wetlands and waterways can be protected under the Clean Water Act as waters of the U.S., or WOTUS.

“Given the constant uncertainty over wetland law at the federal level, in both the courts and with regulators, it’s even more important for the Georgia legislature to step into the breach” so that wetlands fights don’t recur every time the federal government changes the definition of federally-protected waters, Marks said.

Twin Pines Minerals LLC is proposing to build a titanium mine on a site on the ridge containing wetlands conservationists believe should be protected under the Clean Water Act. If the mine is permitted, scientists and the U.S. Fish and Wildlife Service worry it would destroy the hydrology of the nearby Okefenokee swamp and possibly drain it.

Twin Pines is proceeding with mine permitting and construction based on current state law, said company president Steve Ingle.

“We can’t speculate on what may or may not happen in the legislature,” Ingle said Thursday.

WOTUS to Face SCOTUS

The mine and the swamp are at the heart of a national debate about federal wetlands and waterways, many of which lost Clean Water Act protections in 2020 when the Trump administration narrowed the definition of WOTUS.

The rule excluded streams and wetlands not directly connected to navigable waters, including Trail Ridge wetlands at the mine site.

The Trump-era rule left it up to the states to regulate wetlands not considered WOTUS. But Federal courts tossed the Trump rule in 2021, and the Biden administration reinstated a 1980’s rule that again expanded federal wetlands protections.

The Army Corps of Engineers, which determined that the Trail Ridge site fell outside of federal jurisdiction during the Trump administration, said in January it is unlikely to revisit its decision in light of the recent court rulings, leaving it to Georgia officials to permit the mine.

The U.S.Supreme Court is scheduled to hear a challenge to the federal definition of WOTUS later this year in Sackett v. EPA. Observers largely expect the conservative-majority court to resolve lingering questions over the scope of the Clean Water Act and narrow the definition of federally-protected waters, possibly leaving wetlands like those atop Trail Ridge permanently under state jurisdiction.

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; John Crawley at jcrawley@bloomberglaw.com