The Biden administration on Friday announced a final rule that restores protections in place before 2015 under the Clean Water Act for streams, wetlands and other important waterways. The action, announced by the US Environmental Protection Agency and the US Department of Defense, strengthens the protection of drinking water sources and wetlands and watersheds important to wildlife.
“When Congress passed the Clean Water Act 50 years ago, it recognized that protecting our water is essential to ensuring healthy communities and a thriving economy,” said EPA Administrator Michael S. Regan in a press release.. “After extensive engagement with stakeholders, and building on what we have learned from previous regulations, EPA is working to deliver a strong definition of WOTUS (Waters of the US) that protects our nation’s water, strengthens economic opportunity, and protects human health while providing it.” a great certainty for farmers, ranchers, and landowners.”
US Rep. Buddy Carter, whose district includes coastal Georgia, opposes the new law.
“Reinstating the Obama-era WOTUS rule would bring back a land of vague and disastrous rules for Georgia farmers, small businesses, homeowners, local government, and families, who don’t need an unelected official to tell them how to use the Peach State’s natural resources. ,” said Carter in a statement issued by the Congressional Western Caucus, a Republican member of which. “Under President Trump, there were clear and specific guidelines, which should transcend political party and remain the law.”
The Clean Water Act established federal jurisdiction over “navigable waters,” defined as “waters of the United States.” Most programs of the Clean Water Act apply only to “waters of the United States,” but lawmakers gave the EPA and the Army the responsibility for defining “waters of the United States” in the regulations. That definition has been the focus of a series of high-profile lawsuits this century as groups of farmers, homebuilders, miners and others lobbied to relax the rules while environmental groups pushed back.
Mines near Okefenokee
Friday’s final rule, which will take effect in about two months, does not apply to the controversial decision not to set aside 600 acres of wetlands where Alabama-based Twin Pines has proposed mining operations.
At its closest point, the site sits approximately 3 miles from the Okefenokee National Wildlife Refuge, established to protect one of the largest freshwater wetlands, the Okefenokee Swamp. Conservation groups have protested the mining plan since it was first proposed in 2019, saying it threatens to disrupt the flow of water into and out of the marsh. Twin Pines Minerals, which has no experience developing a new mine, emphasizes the economic benefit to rural Charlton County, saying “mining operations will not impact the Okefenokee Swamp.”
The Savannah Division of the US Army Corps of Engineers determined in December 2018 and January 2020 that wetlands in Charlton County were “authoritative,” meaning, they required a permit under the Clean Water Act. That was before the Trump administration’s rule went into effect later in 2020.
After Trump’s “Watershed Protection Act” went into effect, the Savannah Corps in October 2020 and March 2021 issued new decisions that removed protections from nearly 600 wetlands at the Twin Pines mine site.
The rule changes announced Friday follow two 2021 federal court rulings that have already struck down Trump’s rule, but they still won’t restore protections to wetlands at the mine site, said Kelly Moser, a senior attorney and leader of the clean water defense program. the Southern Environmental Law Center.
“In the preamble to this legislation, the agencies emphasize that decisions made under the Trump administration’s legislation in the absence of ongoing consent measures will not be reopened,” he said.
Because there are no wetlands in the Twin Pines area that are considered jurisdictional no wetlands related permits are in progress. Even though the Trump-era rules under which that decision was made have now been repealed and made illegal, the jurisdictional ruling stands, Moser said.
“It’s a situation that we found unreasonable,” he said.
A spokesperson for Twin Pines declined to comment, saying the WOTUS rules review does not affect their permit application. The company currently needs approval from the Georgia Environmental Protection Division to move forward with its plans.
The SELC case
About two months ago last summer the US Army Corps of Engineers appeared ready to take another look at whether the Twin Pines wetlands had been properly assessed.
In June, Assistant Secretary of the Army for Public Works Michael L. Connor rescinded his previous approval because the agency had not consulted with the Muscogee Creek Nation, which it says has historical and land ties. Twin Pines initially indicated it would restart the permit process with the Corps, but then sued the agency, saying it was misdirected. The Corps settled the matter out of court in August, agreeing to go back on its earlier decision that the work 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 parties sued the Corps of Engineers in the district court of the District of Columbia for the decision given without reasonable explanation.
“That’s interesting and absurd, because the agencies explained (in June) why they were withdrawing Trump’s decisions, and the agencies determined that Trump’s rule is illegal,” Moser said. “And they still reinstated these decisions that remove protections for nearly 600 acres of wetlands that would have been in effect under all other management rules.”
The new rules strengthen his argument, Moser said. They insisted that Trump’s rule was illegal because it “violated the purpose of the Clean Water Act to restore and maintain the integrity of the nation’s water.”
The US Army Corps of Engineers has until Jan. 23 to respond to the complaint of conservation groups.