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Tightened federal water protections won’t slow some projects

An aerial view of the Okefenokee National Wildlife Refuge in southeast Georgia.
The Twin Pine Minerals project would mine titanium and other minerals a few miles outside the Okefenokee Swamp, home to the largest U.S. wildlife refuge east of the Mississippi River.
(Stuart Tannehill / Florida Times-Union)

The Biden administration is moving to tighten oversight of projects that benefited from diminished Trump-era water protections, but some projects including a controversial Georgia mine will probably be able to escape new scrutiny.

It’s the latest twist in a long-running dispute over the scope of the Clean Water Act, with each new administration aiming to shift which waterways require federal protections. The new guidance aims to minimize the impact of Trump-era environmental rollbacks, which included eliminating federal protections for numerous small streams, wetlands and other waterways.

In a recently posted policy, the Biden administration said many developers would not be able to rely on favorable assessments they got under former President Trump. But the change will probably allow some projects — including a proposed titanium mine in Georgia — to escape the clampdown.

The new guidance generally does not apply to developers if they were told that none of the waters on their property site were subject to federal oversight under the Trump administration and could advance without a federal permit — even if the same waters are now protected under the tightened rules currently in place.

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It’s not clear how many projects could bypass stricter scrutiny. Among them is the 600-acre Twin Pine Minerals project, which would mine titanium and other minerals a few miles outside the Okefenokee Swamp, home to the largest U.S. wildlife refuge east of the Mississippi River. Environmental advocates have long opposed the project, arguing that it threatens hundreds of acres of critical wetlands.

The Army Corps of Engineers’ “interpretation of its policy causes an absurd result for sites like Twin Pines,” said Kelly Moser, an attorney at the Southern Environmental Law Center, which has fought the project.

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The project still needs permits from state regulators.

In December, a U.S. Fish and Wildlife Service official wrote to the Army Corps of Engineers and the U.S. Environmental Protection Agency seeking more oversight for Twin Pines. Leopoldo Miranda-Castro, a regional director for the service, expressed concern that the project could affect wetlands that are federally regulated under tighter rules.

Miranda-Castro said the mining project could dry out vegetation and increase the risk of fires, a potential threat to animals such as the endangered red-cockaded woodpecker.

Twin Pines President Steve Ingle said this week that the mine would have a “negligible effect” on Okefenokee’s water levels. If the company sought to expand the mine, it would need to show that it had acted in an environmentally responsible way and go through a permitting process.

“Protecting the Okefenokee is not just the right thing to do from an environmental perspective, it is the only reasonable course of action from a business standpoint,” Ingle said in a statement.

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Twin Pines’ original proposed plan would have required a permit under stricter, previous regulations. It faced an easier path forward under Trump’s rollback, and was able to modify its proposal so the property site would not touch any federally regulated waters, according to the letters provided to the Associated Press by the Southern Environmental Law Center. The company then withdrew its permit.

Developers that apply for a federal water permit could now have their projects assessed under the interim rules.

Environmentalists are pushing federal agencies to revisit their findings on Twin Pines.

The company could face a lawsuit alleging it violated the Clean Water Act, according to Ann D. Navaro, an attorney who represents developers and a former assistant chief counsel for litigation at the Army Corps.

The federal permitting process allows the public to comment on projects, and it can force builders to reduce the harm that construction causes to waterways.

In August, an Arizona federal judge who struck down the Trump rule cited federal efforts that identified more than 300 projects that advanced under the Trump administration that would have needed a permit under previous rules.

Nearly all of Arizona is in drought, with large swaths in extreme drought. Experts say the picture may well get worse in a state where more than a third of its water comes from Lake Mead.

The Trump water rule was considered a victory for builders, oil and gas developers, farmers and others who expressed frustrations about the Obama administration’s protections of waterways, which they contended were better left to states. Those groups often say that broad federal protections make it difficult to do their work, in part because of lengthy permitting processes.

In November, the Biden administration restored on an interim basis a 1986 rule that is broader in scope than the Trump rule, but narrower than that under the Obama administration. The move formalized the earlier scrapping of Trump’s rule in federal courts.

Biden administration officials have said its rewrite of the rule will be made sometime this year.

The National Assn. of Home Builders said in a recent blog post that last week’s changes amounted to “a significant reversal” of the Army corps’ policy, adding that it would have “substantial impacts on the ability of small companies and small landowners ... to help meet the nation’s ambitious climate and infrastructure goals.”

Before the Biden administration issued its recent interim guidance, Army corps determinations were generally valid for five years, providing a level of certainty for developers, Navaro said.

The new guidance offers less certainty and will force other developers to deal with current water protections if they want a Clean Water Act permit, Navaro said. “This policy will have significant timing and expense implications.”

Naishadham reported from Washington.


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