SAVANNAH, Ga. — A federal agency is claiming legal rights to the waters that feed the Okefenokee Swamp and its vast wildlife refuge, launching a new battle with a mining company seeking permits to extract more than 1.4 million gallons of water daily for a project that critics say could cause irreparable damage to one of America’s natural treasures.
In a letter obtained by The Associated Press, the U.S. Fish and Wildlife Service tells Georgia state regulators that federal law prohibits diverting water from the Okefenokee National Wildlife Refuge in amounts that would undermine its function as protective habitat for native wildlife. and harm plant species.
“Disruption to the natural flow of groundwater in this interconnected system could have far-reaching impacts on both the Refuge and surrounding areas,” Mike Oetker, the federal agency’s acting regional director, wrote in a Jan. 31 letter to regulators in Georgia. He added: “Any decision regarding the proposed mining permit must be made in consideration of federal reserved water rights.”
Twin Pines Minerals is close to obtaining permits it has been seeking since 2019 to mine titanium dioxide less than three miles from the southeastern border of the Okefenokee refuge, the largest U.S. refuge east of the Mississippi River.
The Okefenokee refuge covers nearly 1,000 square miles in southeastern Georgia and is home to more than 400 species, including alligators and bald eagles. According to the Fish and Wildlife Service, which manages the refuge, the swamp’s wildlife, cypress forests and flooded prairies draw about 600,000 visitors annually.
Scientists have warned that mining near the bowl-like edge of the Okefenokee could irreversibly damage the swamp’s ability to retain water and increase the frequency of devastating droughts. Interior Secretary Deb Haaland stated in 2022 that the proposed mine poses an “unacceptable risk” to the fragile ecosystem on the Georgia-Florida border.
Twin Pines has maintained that the proposed 312-acre mine will not harm the Okefenokee refuge. Regulators with the Georgia Environmental Protection Division have said their own analysis “concluded that water levels in the marsh will be minimally affected.”
The Georgia Agency issued draft permits for the mining project on Feb. 9, beginning a 30-day period for public comment before regulators develop final permits for the agency’s director to approve.
While it’s unclear how many permits could be delayed by the Fish and Wildlife Service’s formal assertion of water rights, legal experts say Georgia regulators are legally required to work with the federal agency to ensure the Okefenokee retains enough water to function as a nature reserve.
Legal issues surrounding water consumption are generally left to the states. However, a 1908 U.S. Supreme Court ruling established that public lands reserved by the federal government for Indian tribes, national parks, and other uses have rights to water that take precedence over other users.
“This doctrine does more than just give the Fish and Wildlife Service a seat at the table,” said Megan Huynh, an attorney with the Southern Environmental Law Center. “It gives the Okefenokee a legal right to as much water as necessary to support the primary purpose. of the refuge and wilderness area.”
While federal agencies typically claim water rights for public lands in the West, where the arid climate makes water scarcer, they have rarely done so in the Eastern U.S., said Ryan Rowberry, a law professor at Georgia State University who has studied how the federal government reserves water. rights protect public lands.
“Now we’re entering a different era,” Rowberry said. Population growth, industry growth and the realization that climate change is worsening have challenged the premise that “there is enough water for everyone” in the eastern states, he said.
This move by the Fish and Wildlife Service aims to reassert some level of federal oversight of the Twin Pines proposed mine. Normally, the US Army Corps of Engineers would also have to approve permits. But it lost that authority over the Georgia project in 2020 due to regulatory rollbacks under then-President Donald Trump.
The letter from the Fish and Wildlife Service to the Georgia Environmental Protection Division requests that federal officials and state regulators meet and “work together to quantify the amount of water” the Okefenokee refuge needs. The state agency has not yet responded.
“Georgia EPD is reviewing the letter from US Fish & Wildlife Service, as well as all other comments submitted by the public on the Twin Pines mining application, John Eunice, deputy director of the state agency, said in an email Monday. He expected a response “as soon as the public comment period closes.”
The groundwater use permit sought by Twin Pines would allow for an average daily withdrawal of 1.44 million gallons (5.45 million liters) of water from the Floridan Aquifer to process mining tailings and tailings. The plan calls for removing extra water that flows into the mine pits during excavation.
Any discussions between federal officials, Georgia regulators and Twin Pines over the Okefenokee’s water needs and how much water the proposed mine would divert from the swamp could be controversial. National Park Service hydrologists said last year that documents that Georgia regulators relied on to conclude the mine would not harm the refuge contained technical errors and “critical deficiencies” that made them unreliable. The regulators stuck to their analysis.