Unprecedented Water Rights Claim Stokes Okefenokee Legal Battle

A water rights claim by the US government at Georgia’s Okefenokee National Wildlife Refuge is a rare and possibly unprecedented move east of the Mississippi River to block development outside federal lands.

The move awakens “dormant” water rights that the federal government has never asserted on the East Coast because the region is historically too wet to need to exercise them at public lands and military bases, said Georgia State University law professor Ryan Rowberry.

“It’s saying when states decide to act, if they are going to compromise the quantity of water flowing into federal reservations, they are going to have to deal with the federal government, and the federal government’s right can supersede states’ rights,” he said.

In January, the Fish and Wildlife Service wrote Georgia regulators to assert its federal reserved water rights at Okefenokee. The assertion aims to prevent Twin Pines Minerals LLC from pumping so much groundwater for a proposed titanium dioxide mine that it could cut off part of the swamp’s water source, imperiling its biodiversity and original purpose as a refuge for migratory birds.

The agency’s action is the latest development in a long-running battle over North America’s largest blackwater swamp and the mine, which was embroiled in a related fight over waters of the US, or WOTUS, under the Clean Water Act. The Okefenokee Swamp is a haven for migratory birds, endangered wildlife species and more than 600 species of plants.

The Georgia Environmental Protection Division in February issued a draft permit for Twin Pines to build its mine, followed by a public hearing March 5. A timeline for final approval hasn’t been set, state officials say.

Quantifying Water Rights

Twin Pines plans to build its mine on a sandy ridge that hems in the swamp three miles east of the refuge boundary. The company needs to pump water from an underlying aquifer to de-water its mine pits.

Mike Oetker, Fish and Wildlife Service acting regional director overseeing Okefenokee, in the letter asked Georgia regulators to work with the agency to quantify the amount of water the refuge needs to maintain the swamp’s wildlife habitat.

The National Park Service conducted a hydrological study of the swamp that found Twin Pines’ pumping would remove 16% of the groundwater that recharges the swamp, Oetker wrote. The mine could harm Okefenokee through either groundwater withdrawals or re-direction of current flows into the swamp, he said.

“Any decision regarding the proposed mining permit must be made with consideration of federal reserved water rights,” Oetker wrote. “It is imperative that these rights be safeguarded to ensure the long-term health and viability of the Okefenokee wetland ecosystem.”

Georgia EPD is reviewing the letter and hasn’t yet responded, spokesman John Eunice said.

Twin Pines President Steve Ingle said the mine won’t harm Okefenokee. The Fish and Wildlife Service didn’t respond to a request for comment.

John Leshy, who served as Interior solicitor in the Clinton administration, said he knows of no precedent for federal assertion of water rights east of the Mississippi River.

Federal reserved water rights include all the water needed to maintain the purpose of the Okefenokee refuge, which President Franklin Roosevelt created to protect migratory birds in 1937 with an executive order under the Migratory Bird Conservation Act, Oetker wrote.

He said that a unanimous 1976 Supreme Court opinion in Cappaert v. US held that the federal government has the right to preserve its surface and groundwater from diversion.

In Cappaert, the justices ruled that groundwater pumping in Nevada near Devil’s Hole National Monument—created to protect the endangered pupfish and now part of Death Valley National Park—violated the federal government’s right to enough water to maintain the purpose of the monument.

Unique to West

The company denies that the federal government has any claim to reserved water rights at Okefenokee.

Federal reserve water rights is a doctrine exclusive to Western water law, and there is no legal basis for it in the original 13 states, including Georgia, according to Twin Pines attorney Lewis Jones of Jones Fortuna LP in Decatur, Ga.

The federal government once had legal claim to all the West, where water rights came with the land it controlled, but that was not the case in Georgia, one of the original colonies, where the federal government had no original claim to water rights, he said. That means that the Fish and Wildlife Service doesn’t have water rights to Okefenokee that it could reserve, he said.

The Fish and Wildlife Service’s claim “is a novel theory that has never been tested in the East,” Jones said. “They’re trying to use any means they can to stop a project they don’t like.”

Other legal experts say Cappaert puts the government on solid ground to make its water rights claim.

Federal reserved water rights in eastern states are based on the intent for protecting the land, not the status of the land prior to federal acquisition, Rowberry wrote in a 2013 legal paper on the issue.

Rowberry said eastern national parks can claim reserved water rights if the intent of their creation was to use water for federal purposes, such as at South Carolina’s Congaree National Park, which was created by Congress to protect a swamp similar to Okefenokee.

The Justice Department since 1982 has argued that even though most federal reserved water rights are asserted on lands the government reserved from the public domain as it did in the West, lands acquired by the US have enforceable water rights, too, said Robert Fischman, an environmental law professor at Indiana University.

Federal water rights preempt state law, and they can be asserted regardless of the age of the state or the type of water rights system the state uses, he said.

The law on federal reserved water rights is clear, and the Fish and Wildlife Service “is putting Georgia on notice that issuing this permit would impair its federal water right and, presumably, be contrary to public interest,” said Melinda Taylor, senior lecturer at the University of Texas at Austin School of Law. Leshy said the Cappaert precedent gives the Fish and Wildlife Service a strong case in part because the ruling establishes that a prior federal reservation of water prevents subsequent assertions of groundwater rights under state law.

But Taylor said case law is unclear whether federal water rights take precedent over state groundwater regulations. Georgia’s regulations require the state to determine whether the mine’s permit would be detrimental to other uses, she said.

The Fish and Wildlife Service’s biggest challenge in asserting its water rights at Okefenokee is quantifying them in the first place, said William Caile, of counsel at Holland & Hart LLP in Denver.

“That’s going to be a technical and factual issue,” relying on complex hydrological assessments of the groundwater system around the swamp, Caile said.

Mining outside the refuge’s boundaries threatens the government’s ability to manage a freshwater ecosystem, and asserting water rights there is one tool the Fish and Wildlife Service has to prevent it, said Andrew Mergen, a visiting environmental law professor at Harvard Law School.

“I would agree that east of the Mississippi that this is really rare,” he said. “As the refuge was created for certain purposes, the lands and waters were reserved for those purposes. They were included in the reservation for the bird sanctuary, for what became the refuge.”