The Biden administration on Friday announced a final rule that restores protections in place prior to 2015 under the federal Clean Water Act for streams, wetlands, and other critical waterways. The action, announced by the U.S. Environmental Protection Agency and the U.S. Department of the Army, strengthens protections for sources of drinking water as well as for wetlands and water bodies vital to wildlife.

“When Congress passed the Clean Water Act 50 years ago, it recognized that protecting our waters is essential to ensuring healthy communities and a thriving economy,” said EPA Administrator Michael S. Regan in a press release. “Following extensive stakeholder engagement, and building on what we’ve learned from previous rules, EPA is working to deliver a durable definition of WOTUS (Waters of the U.S.) that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing greater certainty for farmers, ranchers, and landowners.”

U.S. Rep. Buddy Carter, whose district covers the Georgia coast, opposes the new regulation.

“Restoring the Obama-era WOTUS rule will restore a world of vague and disastrous regulations for Georgia’s farmers, small businesses, homeowners, local government, and families, who do not need an unelected bureaucrat to tell them how to use the Peach State’s natural resources,” Carter said in a press release issued by the Congressional Western Caucus, of which the Republican is a member. “Under President Trump, there were clear and certain guidelines, ones that should transcend political party and remain law.”

The Clean Water Act established federal jurisdiction over “navigable waters,” defined as the “waters of the United States.”  Many Clean Water Act programs apply only to “waters of the United States,” but lawmakers gave the EPA and the Army the responsibility to define “waters of the United States” in regulations. That definition has been the focus of a series of high profile lawsuits this century as groups of farmers, homebuilders, miners and others lobby to ease the regulations while environmental groups push back.

Mining near the Okefenokee

Friday’s final rule, which goes into effect in about two months, does not apply to a controversial decision to exempt from federal oversight nearly 600 acres of wetlands where Alabama-based Twin Pines has proposed a surface mining operation.

At its closest point, the site sits about 3 miles from the Okefenokee National Wildlife Refuge, established to protect one of the world’s largest intact freshwater wetlands, the Okefenokee Swamp. Conservation groups have protested the mining project since it was first proposed in 2019, saying it threatens to disrupt the flow of water into and out of the swamp. Twin Pines Minerals, which has no experience developing a new mine, emphasizes the economic benefit to rural Charlton County, saying “mining activities will not impact the Okefenokee Swamp.”

The Savannah Division of the U.S. Army Corps of Engineers determined in December 2018 and January 2020 those wetlands in Charlton County were “jurisdictional,” that is, they required permitting under the Clean Water Act. That was before the Trump administration’s rule went into effect later in 2020.

After Trump’s “Navigable Waters Protection Rule” took effect, the Savannah Corps in October 2020 and March 2021 issued new determinations that removed protections from the nearly 600 acres of wetlands at the Twin Pines mining site.

The regulatory reversal announced Friday follows two 2021 federal court decisions that already set aside the Trump rule, but it still won’t return protections to the wetlands on the mining site, said Kelly Moser, senior attorney and leader of the clean water defense initiative at the Southern Environmental Law Center.

“In the preamble to the rule, the agencies emphasize that the jurisdictional determinations that were made under the Trump administration’s rule for which there is no permit action underway will not be reopened,” she said.

Because none of the wetlands at the Twin Pines site were deemed jurisdictional no wetlands-related permitting is underway. Even though the Trump-era regulations under which that determination was made have now been revoked and labeled unlawful, the jurisdictional determinations stand, Moser said.

“It is a situation that we have found absurd,” she said.

A spokesman for Twin Pines declined comment, saying revisions to WOTUS regulations do not affect their permit application. The company currently needs permitting from the Georgia Environmental Protection Division to move forward with its plans.  

SELC lawsuit

For about two month last summer the U.S. Army Corps of Engineers appeared poised to reconsider whether the Twin Pines wetlands had been properly assessed.

In June, Assistant Secretary of the Army for Civil Works Michael L. Connor revoked its previous approval because the agency had not consulted with the Muscogee Creek Nation, which claims historic ties to the land. Twin Pines initially indicated it would restart the permitting process with the Corps, but then it sued the agency, saying it was unfairly targeted. The Corps settled the matter out of court in August, agreeing to revert to its previous determination that the project did not require federal permits.

In November, SELC stepped in, representing the National Wildlife Refuge Association, the National Parks Conservation Association, Defenders of Wildlife and the Center for Biological Diversity. These groups are suing the Corps of Engineers in federal court in the District of Columbia over a decision offered without any reasoned explanation.

“That’s arbitrary and capricious, because the agencies explained (in June) why they were revoking the Trump jurisdictional determinations, and the agencies determined that the Trump rule is unlawful,” Moser said. “And they still reinstated these jurisdictional determinations that remove protections for close to 600 acres of wetlands that would have been jurisdictional under every other administration’s rule.”

The new regulations bolster her argument, Moser said. They emphasize that the Trump rule was unlawful because “they undercut the objective of the Clean Water Act to restore and maintain the integrity of the nation’s waters.”

The U.S. Army Corps of Engineers has until Jan. 23 to reply to the conservations groups’ complaint.