ATLANTA -- A judge's decision striking down a Trump-era rule that eliminated federal protections for some wetlands and streams is giving hope to opponents of a proposed mine outside the Okefenokee Swamp's vast wildlife refuge in southeast Georgia.
A federal judge in Arizona on Monday tossed the rule that narrowed the types of U.S. waters that qualify for federal protection from pollution under the Clean Water Act. The judge's order, which applies nationwide, says the rule enacted under former President Donald Trump improperly limited the scope of clean water protections.
One high-profile project directly affected by the environmental rollbacks under Trump was a proposal by Alabama-based Twin Pines Minerals to mine titanium dioxide on land about 3 miles (5 kilometers) from the Okefenokee National Wildlife Refuge near the Georgia-Florida line.
Conservationists fear mining close to the swamp's edge could cause irreparable harm to the largest federal wildlife refuge east of the Mississippi River. Yet the Army Corps of Engineers declared last year that the project no longer required a federal permit because the rollbacks under Trump excluded wetlands on the site from federal protection. That left sole authority to Georgia state regulators to decide whether it could move forward.
Now environmental groups hope the judge's ruling means the federal government will once again have oversight over the project near the Okefenokee. But there is still uncertainty.
Kelly Moser, a lawyer with the Southern Environmental Law Center, said she believes the determination that the Corps did not have jurisdiction could be invalidated because it was made under a rule that was found to be unlawful.
“I think that it is unclear how the Corps will respond to the court’s decision, but we’re hopeful that it will take that decision as a guide and begin protecting wetlands that we’re seeing in jeopardy at Okefenokee,” said Moser, who is handling a federal lawsuit in South Carolina filed by conservation groups challenging the Trump rule.
Steve Ingle, president of Twin Pines, said Tuesday in an emailed statement that the ruling does not change the company's plans, adding that it “will continue to adhere to the requirements of the regulatory agencies that have review responsibilities relative to our permit applications now and in the future.”
The Trump rule, finalized last year, had long been sought by builders, oil and gas developers, farmers and others who complained about federal overreach that they said stretched into gullies, creeks and ravines on farmland and other private property. Environmental groups and other opponents said it allowed businesses to dump pollutants into unprotected waterways and fill in some wetlands, threatening downstream public water supplies and harming wildlife.
U.S. District Judge Rosemary Marquez wrote in her order that the rule disregards established science and the advice of government experts in excluding smaller waterways from protection. It fails to look closely enough at the effect of those small waterways on larger waterways, she wrote.
The Okefenokee National Wildlife Refuge covers nearly 630 square miles (1,630 square kilometers) and is home to alligators, bald eagles and other protected species. Roughly 600,000 visitors flock to the swamp each year to see its cypress forests and flooded prairies, according to the U.S. Fish and Wildlife Service, which manages the refuge.
The proposed mine could pose “substantial risks” to the swamp, including its ability to hold water, the Fish and Wildlife Service said in February 2019. Some impacts “may not be able to be reversed, repaired, or mitigated for.”
Ingle maintains that his company can mine for titanium and other minerals “without impacting the Okefenokee Swamp.”
Billy Birdwell, a spokesperson for the Army Corps office in Savannah, said the judge's ruling “is much too new for an evaluation of how it will impact our actions.” He also noted that the ruling could be appealed.
Marquez's ruling Monday came in a challenge brought by six Native American tribes, who said the Trump rule defied the law’s environmental focus. If an appeal is filed, her ruling could be put on hold while the appeals process plays out.
Without federal oversight, only the Georgia Environmental Protection Division has permitting oversight over the proposed Twin Pines mine. Those reviews are underway, and agency spokesperson Kevin Chambers said the ruling does not affect state permit applications.
Moser said the state protections are limited and “have not ever been and will never be sufficient to protect Georgia's wetlands.” For that reason, she said, it's important that President Joe Biden's administration move quickly to put strong clean water protections in place.
The Environmental Protection Agency is already working on repealing the Trump-era rule and issuing new regulations defining which waterways are federally protected.
But those new measures alone probably would not affect the Georgia mine project because decisions on whether projects need Clean Water Act permits last for five years, unless there’s a specific reason to revisit a particular project. That's why Monday's ruling is so important to environmental groups.