Analysis was reliant on publicly-available USACE-verified maps created by Twin Pines LLC as well as public GIS databases. Most permitting documents were publicly available, and the remainder were sourced from the Southern Environmental Law Center, which obtained the through Freedom of Information Act requests.
The mining tract polygon, USACE-verified wetland polygons, and USACE-verified stream lines shown in Figure 1 were created by georeferencing PDFs of TTL maps with the FreehandRasterGeoreferencer plugin (Vellut and Mizutani 2021) for QGIS version 3.18.1 (QGIS Development Team 2021). Map PDFs were added to QGIS as raster files and adjusted with the following three steps using the georeferencer tool interface. First, the transparency was adjusted to show an imagery basemap behind the raster. Second, the raster was moved, rotated, and adjusted so that roads and pine forestry tract borders shown on the PDF’s imagery matched the same features on the basemap. Third, the northwest and southeast corners of the raster were used for georeferencing, and the resulting adjusted and georeferenced raster was exported. Base QGIS tools were then used to create new shapefile layers for the proposal boundary, wetlands, and streams shown on the georeferenced raster. Acreages calculated with the QGIS field calculator for traced wetlands did not match USACE-verified acreages. As such, Figures 1 and 2 are for illustrative purposes only, and USACE-verified values for stream lengths and wetland areas are used for all calculations and analyses.
Wetlands shown in Figure 1 as “CWR Wetlands” were traced from USACE-verified TTL maps dated November 2019. Wetlands shown in Figure 1 as “NWPR Wetlands” were traced from USACE-verified TTL maps dated October 2020. Streamlines shown in Figure 1 as “USACE-Verified Streams” were originally traced from TTL maps dated July 2019, although symbology is based on the most recent USACE-verified maps they were included in. This was done to include ditches and wetland swales, which were removed from TTL maps following USACE verification. Additional USGS streamlines labelled “NHD Streamlines” are National Hydrography Dataset (NHD) line features added from the NHDPlus HR geodatabase for HUC-0307. Imagery-derived wetland polygons in Figure 2 are from the National Wetlands Inventory (NWI). USACE-verified stream and wetland extents shown on Figure 1 are more accurate than imagery and DEM-derived stream and wetland extents sourced from the NHD and NWI.
The relatively flat surface of the ridge features numerous depressional wetlands (Figures 1 and 2). Under the CWR, every one of the numerous wetland features in the previously proposed 973 ha permit area was deemed jurisdictional by the USACE. Thus the application would have required a §404 permit requiring mitigation for eliminating these wetlands.
In October 2020, under their interpretation of the NWPR, the USACE determined that none of the aquatic features in the modified 298 ha permit area fell under federal jurisdiction and thus no federal review or permitting was necessary. Considering only the currently proposed 232 ha mining area, the applicants and the USACE mapped seven separate depressional wetlands totalling 131.01 ha, covering over 50% of the mining area (Figure 1). Portions of some of these wetlands extend beyond the permit boundary (Figure 1).
The seven wetlands within the proposed 232 ha mining area were judged to have no connection to intermittent or perennial streams, although three of these wetlands, totalling 106.55 ha, are connected to downstream waters via drains determined to be either ditches or ephemeral swales. Under the NWPR, direct surface connection of a wetland to an intermittent or perennial stream, or location on the floodplain of a perennial stream, is necessary to fall under CWA jurisdiction. Under the NWPR, ditches and ephemeral swales are not jurisdictional connections of wetlands to downstream waters. Field inspection of the ditch and swale flowing south on May 29, 2021 found no standing or flowing water but did find hydric soils at the surface, indicating seasonal saturation of extended duration. Even at the top of the ridge, groundwater levels are very near the ground surface according to the hydrogeologic investigation done by the applicant (Holt et al. 2020), so it is logical that groundwater excess flow would move through the drains in the wet season. The swale to the southeast featured a bed of exposed mineral soil, with vegetation wrested by the normal flow of water, and thus met the definition of a stream in the State of Georgia. The ditch that flows east from the proposed mining area is mapped as a stream on historical highway maps of the area and in the National Hydrography Database (Figures 1 and 2).
As the applicant and the USACE negotiated a mining proposal under the provisions of §404 of the CWA, seven other depressional wetlands outside the current mining proposal were also reassessed under the NWPR following earlier jurisdictional determination under the CWR. These seven wetlands, totaling 15.3 ha, were also judged to be unconnected to intermittent or perennial streams and thus unprotected by the CWA (Figure 1). Three of these wetlands are connected to an identifiable drainage path, but this drainage path was deemed to be a ditch, although it is not straight and does not follow a road or other utility (Figure 2). Silvicultural ditching to reduce groundwater levels is an acceptable practice under the CWA, but silvicultural ditches are typically straight and regularly-spaced. This ditch does not appear to be a historical silvicultural ditch.
The history of titanium sands mining on Trail Ridge illustrates how environmental laws and regulations affect land management. Titanium mining on Trail Ridge south of Interstate 10 in Florida began in the late 1940s, decades before passage of the Clean Water Act. The density of depressional wetlands did not pose a permitting, compensatory wetland mitigation, or reclamation problem for mining companies prior to the CWA.
Passage and implementation of the CWA has deterred titanium mining of Trail Ridge in Georgia near the Okefenokee Swamp on several occasions. In the 1990s, Dupont Corporation proposed to mine titanium on 38,000 acres of Trail Ridge east of the Okefenokee and north of the presently proposed operation. Then Secretary of Interior Bruce Babbitt toured the swamp and publicly proclaimed Federal government opposition to the project. Given the public opposition and difficulties of permitting the project under the rules of that time, Dupont abandoned the proposal, donated 16,000 acres of land to The Conservation Fund, of which 7000 acres were then added to the Okefenokee National Wildlife Refuge, and then sold the rest of the land.
Prior to the NWPR, Twin Pines had submitted an application for a larger mining project of 973 ha, but it would have required extensive mitigation, and USACE had recommended that an EIS be required for the project. In addition, USEPA and USFWS both wrote letters indicating opposition or serious reservations about the project (USEPA 2019; USFWS 2019). The USFWS letter pointed out that this area of Trail Ridge provides habitat for several ESA threatened or candidate species including the gopher tortoise (Gopherus polyphemus), the indigo snake (Drymarchon couperi), and the flatwoods salamander (Ambystoma cingulatum). Under the CWR, it appears that permitting a titanium mine in this wetland-rich location would have been difficult.
At this site, the regulatory consequences of replacing the CWR with the NWPR were large and consequential. Under the CWR, all 131 ha of depressional wetlands on the 232 ha proposed for mining were deemed to be jurisdictional, but under the NWPR, none of these wetlands were deemed jurisdictional. Thus, no Federal review or permitting is required for the 232 ha mining proposal.
The NWPR represents a major shift in US wetland policy, essentially abandoning the “no net loss” of wetlands policy of the George H.W. Bush administration. This case study vividly illustrates that the NWPR provides no protection for depressional wetlands that lack irrefutable surface connection to intermittent and perennial streams. This is not a policy glitch, reducing the scope of wetland and stream protections is an intended consequence of the NWPR rule as evidenced by the press release that accompanied the publication of the rule (USEPA 2020). In this press release, EPA Administrator Andrew Wheeler is quoted, “EPA and the Army are providing much needed regulatory certainty and predictability for American farmers, landowners and businesses to support the economy and accelerate critical infrastructure projects.” In the same press release, R.D. James, Assistant Secretary of the Army for Civil Works says “This rule also eliminates federal overreach and strikes the proper balance between federal protection of our Nation’s waters and state autonomy over their aquatic resources. This will ensure that land use decisions are not improperly constrained, which will enable our farmers to continue feeding our Nation and the world, and our businesses to continue thriving.” Internal to these agencies, this rule change was controversial. Prior to publication of the NWPR, EPA’s Science Advisory Board (SAB) “concluded that the proposed WOTUS rule does not incorporate best available science and as such we find that a scientific basis for the proposed Rule, and its consistency with the objectives of the Clean Water Act, is lacking.” (USEPA SAB 2020).
Without Federal jurisdiction over the wetlands and streams in the proposed mining area, all permitting responsibilities fall to the state and the county. The State of Georgia has no laws protecting freshwater wetlands, nor does Charlton County, so in this case the wetlands have no legal protections and thus their destruction will require no mitigation. Only 24 of the 50 states in the US have laws protecting freshwater wetlands (though the level of protection varies widely), so in the majority of the country, protection of freshwater wetlands comes only from the CWA (Kusler and Christie 2006).
Under the NWPR, classification of the type and flow status of surface drainage features is crucial to the determination of wetland jurisdiction (Fesenmeyer et al. 2021; Golden et al. 2017). Unfortunately, determination of flow status of surface drainage features by short field inspections is very difficult (e.g. Svec et al. 2005; Nadeau et al. 2015; Fritz et al. 2013). Streams that have been classified as ephemeral by the USGS often flow for over half of the year (Svec et al. 2005). Research is needed to guide estimation of the flow status of drains in flat topography (e.g. Epting et al. 2018; Jones et al. 2019). The NWPR defines ephemeral streams as “surface water flowing or pooling only in direct response to precipitation (e.g., rain or snow fall).” By this definition, even a stream that flows continuously for just a few weeks a year during the wet season is an intermittent stream. Drainages that flow only in response to precipitation will not be saturated long enough to develop hydric soils in the bed. At this site, however, at least two drainages with hydric soil conditions were not judged to be intermittent streams. Without scientific guidance and standards for judging flow conditions during short site visits, there is a high degree of arbitrariness in jurisdictional determinations.
Ecosystem Service Implications
Headwater streams and small wetlands provide an assortment of ecosystem services (Millennium Ecosystem Assessment 2005), at both local and regional (watershed) scales (Colvin et al. 2019). Most interactions between uplands in a watershed, and the main channel of a stream or river occur through headwater streams and wetlands (Golden et al. 2017). While rivers have been called the arteries of a landscape, headwater streams and wetlands are considered the capillaries (USGS 2021), and are where uplands and aquatic systems functionally interact (Freeman et al. 2007; Liebowitz et al. 2018). Rainfall that falls within a watershed filters through wetlands, soils, and headwater streams (Cohen et al. 2016; Golden 2016). These habitats contribute materials essential to downstream river functions (Freeman et al. 2007; Meyer et al. 2007; Wipfli et al. 2007; Liebowitz et al. 2018), while simultaneously filtering out unwanted contaminants entering from uplands (Marton et al. 2015). Headwater streams and small wetlands are connected to surficial groundwater aquifers, and both groundwater discharge and recharge functions operate at these locations (Jackson et al. 2014). In Coastal Plain watersheds, small depressional wetlands comprise a large portion of the active storage feeding the stream system (Jones et al. 2018; Lee et al. 2020). From a hydrological perspective, the entire landscape is connected to navigable waters, and consequently actions that affect water quality anywhere in the landscape affect water quality in navigable waters. The jurisdictional boundary used in the application of the CWA is largely arbitrary. In north Florida, near the Twin Pines project, small depressional wetlands have been empirically shown to provide important water storage services across the landscape (Lane and D’Amico 2010). If headwater streams or wetlands are eliminated, as proposed by the Twin Pines project, water quality and quantity will be affected locally and downstream (Golden et al. 2016).
Small headwater streams (Meyer et al. 2007; Colvin et al. 2019) and small depressional wetlands (Semlitsch and Bodie 1998; Cohen et al. 2016; Kirkman et al. 2016; Biggs et al. 2017) support a biodiversity (plants, invertebrates, fishes) not found in larger habitats, and some of this biodiversity is threatened. Across the Southeastern Coastal Plain, Edwards and Weakley (2001) found that 200 plant species of special concern were associated with depressional wetlands, with 69 of these species labeled as being threatened. Depressional wetlands of the Southeastern US Coastal Plain also support amphibians of special concern, with flatwoods salamanders (Ambystoma cingulatum and Ambystoma bishopi) being Federally protected (Gorman et al. 2009), the striped newt (Notophthalmus perstriatus) being listed as threatened in Georgia and Florida (Johnson 2002), and the gopher frog (Rana capito) being considered for listing (Gregoire and Gunzburger 2008). These amphibians find the fishless status of many depressional wetlands conducive to breeding success (Gregoire and Gunzburger 2008). In the southeastern US, an important nexus exists between larger streams and rivers and nearby small wetlands via gravid female alligators (Alligator mississippiensis) seeking out depressional wetlands to nest and raise their young until the hatchlings are large enough to return to the larger aquatic habitats (Subulasky et al. 2009). Again, if headwater streams or wetlands are eliminated, as proposed by the Twin Pines project, ecosystem services provided by biodiversity will be impaired. As mentioned by USFWS (USFWS 2019), upland biodiversity may also be imperiled.