Redefining Waters of the US: a Case Study from the Edge of the Okefenokee Swamp

Abstract

Defining the upslope extent of Federal Clean Water Act jurisdiction over wetlands and streams has been contentious since the passage of the Act but has large effects on the type, number, and area of wetlands that are protected by legislation. Federal jurisdictional guidance in the US has changed and evolved in response to scientific knowledge, US Supreme Court decisions, and policy goals of Presidential Administrations. In 2020, the Trump administration replaced the Obama administration Clean Water Rule with the Navigable Waters Protection Rule with the goal of reducing jurisdiction over so-called isolated depressional wetlands (wetlands with no connections to obvious stream channels) and ephemeral streams. Here we use a case study of a titanium sands mining proposal on Trail Ridge southeast of Okefenokee Swamp to illustrate the large reduction in wetland and stream protection engendered by this policy change. Under the Navigable Waters Protection Rule, all seven wetlands within the 232 ha mining area, totaling 131 ha or 56 % of the project area, were deemed non-jurisdictional and thus the project required no federal review or permitting. Under an earlier mining application under the Clean Water Rule, all of these same wetlands were declared jurisdictional. Trail Ridge is located on the Atlantic Coastal Plain, an ecological province rich in depressional wetlands and ill-defined surface drainages. This case study shows that in such environments, application of the Navigable Water Protection Rule allows destruction of large numbers and areas of ecologically significant wetlands.

Full text

Vol.:(0123456789)
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Wetlands (2021) 41:106
https://doi.org/10.1007/s13157-021-01512-8
APPLIED WETLAND SCIENCE
Redefining Waters oftheUS: aCase Study fromtheEdge
oftheOkefenokee Swamp
C.RhettJackson1 · CalebSytsma1· LoriA.Sutter1 · DaroldP.Batzer2
Received: 6 July 2021 / Accepted: 27 October 2021
© The Author(s), under exclusive licence to Society of Wetland Scientists 2021
Abstract
Defining the upslope extent of Federal Clean Water Act jurisdiction over wetlands and streams has been contentious since the
passage of the Act but has large effects on the type, number, and area of wetlands that are protected by legislation. Federal
jurisdictionalguidance in the US has changed and evolved in response to scientific knowledge, US Supreme Court decisions,
and policy goals of Presidential Administrations. In 2020, the Trump administration replaced the Obama administration
Clean Water Rule with the Navigable Waters Protection Rule with the goal of reducing jurisdiction over so-called isolated
depressional wetlands (wetlands with no connections to obvious stream channels) and ephemeral streams. Here we use a case
study of a titanium sands mining proposal on Trail Ridge southeast of Okefenokee Swamp to illustrate the large reduction
in wetland and stream protection engendered by this policy change. Under the Navigable Waters Protection Rule, all seven
wetlands within the 232ha mining area, totaling 131ha or 56 % of the project area, were deemed non-jurisdictional and thus
the project required no federal review or permitting. Under an earlier mining application under the Clean Water Rule, all of
these same wetlands were declared jurisdictional. Trail Ridge is located on the Atlantic Coastal Plain, an ecological province
rich in depressional wetlands and ill-defined surface drainages. This case study shows that in such environments, application
of the Navigable Water Protection Rule allows destruction of large numbers and areas of ecologically significant wetlands.
Keywords Wetlands· Streams· Clean Water Act· Policy
Introduction
Since the Clean Water Act (CWA) (33 U.S.C. §1251 et
seq., 1972) was passed in the 1970s, interpretations of the
extent of Federal jurisdiction over wetlands and streams in
the US have evolved in response to political considerations,
US Supreme Court decisions, changes in direction from
each Presidential Administration, and changes in technical
guidance from regulatory agencies (Downing etal. 2003).
The CWA, under Federal authority granted by the Interstate
Commerce Clause of the Constitution, seeks to protect the
physical, chemical, and biological integrity of the Nation’s
Waters. Section404 of the CWA requires that projects that
will fill or drain waters of the United States, including wet-
lands, must go through a permit process that stresses avoid-
ance, minimization, and mitigation of wetland impacts.
What constitutes the Nation’s Waters, however, has been
open to considerable interpretation.
In January 2020, the US Environmental Protection
Agency (USEPA) under the Trump Administration, headed
by Andrew Wheeler, enacted the “Navigable Waters Protec-
tion Rule” (NWPR, Federal Register 85 FR 22,250) which
contracted the physical extent of federal jurisdiction over
wetlands and streams. It has been predicted that the NWPR
would leave unprotected a substantial fraction of the nation’s
wetlands and streams, in particular isolated wetlands and
This article belongs to the Topical Collection: Applied Wetland
Science.
* C. Rhett Jackson
rjacks@uga.edu
Caleb Sytsma
caleb.sytsma25@uga.edu
Lori A. Sutter
lsutter@uga.edu
Darold P. Batzer
dbatzer@uga.edu
1 Warnell School ofForestry andNatural Resources,
University ofGeorgia, Athens, GA30602-2152, USA
2 Department ofEntomology, University ofGeorgia, Athens,
GA30602, USA

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small stream channels. Estimates of the fraction of aquatic
features that would no longer receive protection include
50 % of wetlands and 20 % of streams (Sullivan etal. 2019)
and 43-56 % of stream channels (Fesenmyer etal. 2021).
The NWPR replaced the Clean Water Rule (CWR, Federal
Register 80 FR 37,053) previously developed and imple-
mented during the Obama Administration, and the result-
ing change was expected to have substantial effects on the
scope of Federal wetland protection. However, the NWPR
was in effect for only 14 months, because, on August 30,
2021, Judge Marquez of the US District Court for Arizona
vacated the NWPR (Pasqua Yaqui Tribe v. U.S. EPA, No.
CV-20-00266-TUC-RM), finding that the development of
the rule was arbitrary and capricious and did not consider
the CWA’s “statutory objective.” This court decision forces
federal agencies to return to the pre-2015 regulatory regime
for wetland protections, but higher court decisions and rule-
making by the Biden administration may shift the regulatory
regime again (The National Law Review 2021). Here we
use a single case study – a proposed titanium sands mining
operation on Trail Ridge between the Okefenokee Swamp
and the Atlantic coast in the lower Coastal Plain of Georgia
– to illustrate how the types and amounts of aquatic features
of the Coastal Plain protected by the CWA can vary under
different agency rules defining the extent of Federal juris-
diction, specifically by examining the change in jurisdiction
for the same project area assessed under the CWR and the
NWPR.
Evolution ofCWA Jurisdiction andthePath
totheNavigable Waters Protection Rule:
anOverview
The 1972 amendments to the Federal Water Pollution Con-
trol Act (now known as the Clean Water Act) created federal
jurisdiction over waters of the United States. This legisla-
tion regulates the discharge of pollutants (dredge and fill
are defined as pollutants) into navigable waters, specifically
“waters of the United States, including the territorial seas”
(U.S.C. § 1362). Defining this phrase has been the subject
of debate and interpretation for five decades and is the sub-
ject of many books and legal and policy analyses (Gardner
2011; Sutter etal. 2015; Mihelcic and Rains 2020). The US
Corps of Engineers (USACE) specified that these waters
include “wetlands adjacent to [other] waters’’ (33 CFR §
328.3(a)(7)) and further defined wetlands as “those areas
that are inundated or saturated by surface or ground water at
a frequency and duration sufficient to support…a prevalence
of vegetation typically adapted for life in saturated condi-
tions. Wetlands generally include swamps, marshes, bogs,
and similar areas’’ (33 CFR § 328.3(b)). Traditional inter-
pretations of navigable waters stemming from the Rivers
and Harbors Act of 1899 have included that a waterway be
presently navigable in fact, or was in the past, or could be in
the future with reasonable improvements, or subject to tidal
ebbing and flooding.
Between 1987 and 2004, regulatory interpretations of
Waters of the United States (WOTUS) stabilized somewhat,
but since 2004 WOTUS interpretations have swung widely
in response to Federal Court decisions about jurisdictional
limits as well as changes in policy priorities by presidential
administrations. Highlights of key US Supreme Court deci-
sions that are most important to CWA jurisdiction follow.
In 1985, the US Supreme Court began exploring the regu-
latory extent of the CWA. The United States had sued Riv-
erside Bayview Homes, Inc. for filling wetlands adjacent to
Lake St. Clair (Michigan). The defendant argued that denial
of the ability to fill the property constituted a taking without
just compensation. The 1985 US Supreme Court decision
(474 U.S. 121 (1985)) led to the inclusion of wetlands as
WOTUS if they are adjacent to traditional navigable waters
as wetlands are “inseparably bound up’’ with navigable
waters and ‘‘in the majority of cases’’ these wetlands hold
‘‘significant effects on water quality and the aquatic eco-
system’’. These conditions would be found in areas such as
those adjacent to lakes and estuaries as WOTUS and subject
to regulatory regulations regarding polluting US waters.
Following the Riverside Bayview case, agencies involved
in wetlands regulation (e.g. USACE and USEPA) took part
in rulemaking to implement the CWA, where they inter-
preted the Code of Federal Regulations to hold jurisdic-
tion over all waters used by migratory birds that cross state
lines. This effort resulted in the “Migratory Bird Rule”
that they promoted as a clarification to the definition of
WOTUS, rather than a re-definition of it. Because migra-
tory birds cross state borders, they fall under the Interstate
Trade clause in the Constitution (i.e. waters that are or may
be used as habitat for migratory birds are an example of
waters who use, degradation, or destruction could affect
interstate or foreign commerce and therefore are “waters of
the United States” 51 Fed Reg 41,217 (1986) l 53 Fed Reg
20,765 (1988)). A case having nothing to do with wetlands
(US v Lopez) challenged the limits of interstate commerce
and resulted in that rule being narrowed to “(1) regulation
of channels of commerce, (2) regulation of instrumentali-
ties of commerce, and (3) regulation of economic activities
which not only affect but “substantially affect” interstate
commerce.” (USCRS 2014).
The Solid Waste Agency of Northern Cook County
(SWANCC), a consortium of Illinois municipalities, sued
the USACE for denying SWANCC a permit to build a land-
fill in areas containing small, isolated ponds and wetlands.
The USACE argued that these abandoned pits had since
naturally filled with water and consequently supported
migratory birds, thus invoking the Migratory Bird Rule.

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In the 5-4 decision of 2001 (531 U.S. 159 (2001)), the US
Supreme Court rejected the argument that the USACE held
jurisdiction over these isolated wetlands for bird use, sug-
gesting that invoking it overextended federal authority on
non-federal lands. Congress, the Court held, in its use of
navigable waters “has at least the import of showing us what
Congress had in mind for enacting the [Act]: its traditional
jurisdiction over waters that were or had been navigable in
fact or which could reasonably be made so” (SWANCC, 531
U.S. at 172-4). The ponds that had formed after pits were
abandoned were, in fact, not connected to navigable waters
because they lacked a “significant nexus” to traditionally
navigable waters. Significant nexus became a critical term in
determining whether wetlands are waters of the US.
In Michigan, a developer named Rapanos wished to fill
wetlands for a shopping center, but the state Department of
Environmental Quality informed him that these areas were
protected from fill under protective laws. Rapanos contin-
ued to fill the wetlands and then ignored a cease and desist
order from the USEPA. The US government brought suit
against him, but Rapanos argued that these wetlands were
not waters of the US because they were not navigable. The
US Supreme Court decision of 2006 (547 U.S. 715) con-
sisted of a 4-4-1 vote, with the plurality suggesting that
only permanent waters that were actually navigable were
WOTUS. Justice Kennedy partly agreed but suggested that
these wetlands might be under jurisdictional authority if
there were evidence of a significant nexus between them
and navigable waters. Justice Scalia’s opinion (siding with
the plaintiff) posited that water permanence should guide
jurisdictional authority. Justice Stevens led the dissenting
opinion and noted that either water permanence or a sig-
nificant nexus would lead to a water becoming a WOTUS
(Creed etal. 2017).
Agencies followed the Rapanos ruling to then determine
that a tributary or non-adjacent wetland would be juris-
dictional if the body holds water permanently or contains
a significant nexus. Differing interpretations of this rul-
ing led to the disparate rules of different administrations.
The Obama administration CWR emphasized Kennedy’s
“significant nexus” position and the Trump administration
NWPR emphasized the Scalia permanent water presence. A
major difference between the CWR and the NWPR is that
the NWPR removes protections that the CWR afforded to
many wetlands that do not hold water permanently, such as
depressional wetlands, ephemeral streams, and some flood-
plain wetlands (Fesenmyer etal. 2021). The NWPR applied
jurisdiction only to wetlands with close and obvious connec-
tion to intermittent (seasonal) and perennial streams. The
NWPR went into effect June 22, 2020, but was vacated and
remanded on August 20, 2021 (above), and agency interpre-
tations of jurisdictional boundaries returned to those prior to
either NWPR or CWR.
Case Study Description
A recent proposal to mine titanium-rich sands on Trail
Ridge to the southeast of the Okefenokee National Wildlife
Refuge in Georgia (USA) provides a case study of how the
shift from the CWR to the NWPR reduced the scope of
Federal wetland jurisdiction, particularly over depressional
wetlands high in the landscape. This case study will also
illustrate how the uncertain determination of flow status
of surface drains can be critical to CWA jurisdiction. Twin
Pines LLC, a mining company, first applied for permits
for mining approximately 973ha on Trail Ridge in 2017,
while the CWR was in effect. After the NWPR was pub-
lished in January 2020, Twin Pines LLC retracted the ear-
lier and larger application that had been reviewed under
the CWR, and they submitted a new mining application to
be reviewed under the NWPR. Correspondence between
the USACE and the applicant indicates the two parties
worked to refine the mining proposal to minimize wetland
impacts, as is appropriate in CWA permitting. Finally, in
the fall of 2020, Twin Pines submitted a first phase per-
mit application for a contiguous mining area of 232ha
including 131ha of wetlands and the headwaters of several
water courses (Fig.1). The total operations area covered
298ha, including areas for processing and handling of
the titanium sands. The USACE re-determined wetland
jurisdiction under the NWPR for the wetlands within and
adjacent to the new project boundaries. By comparing the
CWR and NWPR determinations, we can characterize and
quantify the effects of this rule change on jurisdictional
determinations in this landscape.
Trail Ridge was formed (144Ma) as a barrier island
complex during higher sea levels (Force and Rich 1989;
Adams etal. 2010). It runs 160km parallel to the coast-
line from near Hoboken, Georgia to the vicinity of Starke,
Florida. The formation of Trail Ridge blocked several
small rivers flowing to the Atlantic, causing a backwater
effect until waters flowed either south through a gap in
Trail Ridge (in what is now the St. Marys River) or west
to the Gulf Coast through the Suwannee River. This dam-
ming effect of Trail Ridge created the Okefenokee Swamp
and partly motivates the particular concern for this area of
the ridge. The Ridge is typically 1-2km wide and 20-50m
higher than the surrounding landscape. Slopes are very
gentle, and one does not sense being on a ridge at the
top (less than 2 % slopes). Rivers passing from the Upper
Coastal Plain to the Atlantic bisect the ridge in several
places. Trail Ridge is composed largely of marine sands
that are high in titanium oxide (Force and Rich 1989), and
this is the reason the ridge is attractive for mining. The
ridge has been extensively mined for decades farther south
in Florida, from Interstate 10 down to Starke, FL.

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The soils of Trail Ridge are spodosols, meaning they
have a humic B horizon. 20 % of the soils in the proposed
mining area are mapped as either Lynn Haven, Allanton, or
Kingsferry, ponded, series that are very poorly drained and
estimated to be ponded for 2-6 months annually (Soil Sur-
vey Staff Web Soil Survey n.d.). Frequently ponded Leon
fine sands cover another 2 % of the site, and these are also
considered very poorly drained. Depressional wetlands on
these uplands tend to be wettest in the winter, when evapo-
transpiration is low, water tables are high, and soils are
saturated near the surface. These wetlands often overflow
through swales and enter streams for weeks to months at
a time during wet periods (Wilcox etal. 2011; Lee etal.
2020). The US Geological Survey (USGS) and USEPA
online hydrography maps depict an intermittent or peren-
nial stream starting in the wetlands in the southeastern
portion of the site and draining east into Boone Creek and
then the St. Marys River (Fig.2).
Trail Ridge acts as an internal drainage divide in the St.
Marys River basin. Water from the mine site drains in part
through the river’s headwaters in the Okefenokee Swamp
Wilderness Area to the west (A Ramsar Convention wetland
of international importance), and also to other tributaries
of the St. Marys River to the east and south. The St. Marys
River forms part of the Georgia-Florida border and drains
into Cumberland Sound of the Atlantic Ocean, past Cum-
berland Island National Seashore.
Waters in the St. Marys River basin are currently clas-
sified as having values for fishing, recreation, drinking
water, or wild and scenic uses (GA DNR 2002). Thus, the
proposed project has the potential to impact a range of
resources of considerable local, state, national and even
Fig. 1 Current Twin Pines mining proposal tract and setting, includ-
ing US Army Corps of Engineers (USACE)-verified wetlands and
streamlines. Inset map shows the proposal location at a larger scale.
All wetlands shown were assessed under the Clean Water Rule
(CWR) and ruled as jurisdictional wetlands. Wetlands reassessed
under the Navigable Waters Protection Rule (NWPR) are shown in
blue; wetlands that changed to non-jurisdictional after reassessment
are crosshatched. Wetland areas are shown on the map in hectares.
National Hydrography Database (NHD) flowlines shown on the map
are DEM-derived and do not necessarily reflect actual streamlines.
Base imagery is Google satellite image sourced with QuickMapSer-
vices plugin for QGIS; flown April 2021. Map created using the Free
and Open Source QGIS, version 3.18.1

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international interest. Concern for the ecological integrity
of the Okefenokee Swamp and its margins has also moti-
vated opposition to past mining proposals in this area.
The US Fish and Wildlife Service (2019) has noted that
this portion of Trail Ridge provides habitat for gopher
tortoises (Gopherus polyphemus, an Endangered Species
Act candidate species), indigo snakes (Drymarchon cou-
peri, a threatened species), and several amphibian spe-
cies of concern. The USFWS letter expressed concern
that the reconstituted soils created after mining would not
provide habitat for these species and recommended that
an Environmental Impact Study (EIS) be required for the
earlier, larger mining application. Similarly, the USEPA
determined that the previously proposed project would
“have a substantial and unacceptable impact on aquatic
resources of national importance” (USEPA 2019).
Methods forIdentifying, Classifying,
andQuantifying Wetlands andStreams
Analysis relied upon publicly-available USACE-verified
maps created by Twin Pines LLC as well as public GIS
databases. Most permitting documents were publicly avail-
able, and the remainder were sourced from the Southern
Environmental Law Center, which obtained the documents
through Freedom of Information Act requests. Principal
documents cited and used are provided in the supplemen-
tary information.
The mining tract polygon, USACE-verified wetland
polygons, and USACE-verified stream lines shown in
Fig.1 were created by georeferencing PDFs of TTL maps
with the FreehandRasterGeoreferencer plugin (Vellut and
Fig. 2 Larger scale map of current mining proposal tract to show
surrounding hydrology. National Hydrography Database (NHD)
flowlines are DEM-derived and do not necessarily reflect actual
streamlines. National Wetland Inventory (NWI) wetlands are
imagery-derived and do not necessarily reflect actual wetlands’ loca-
tions or extent under USACE definitions. Base imagery is Google sat-
ellite image sourced with QuickMapServices plugin for QGIS; flown
April 2021. Map created using the Free and Open Source QGIS, ver-
sion 3.18.1

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Mizutani 2021) for QGIS version 3.18.1 (QGIS Devel-
opment Team 2021). TTL is the consulting firm used by
Twin Pines LLC in the permit process. Map PDFs were
added to QGIS as raster files and adjusted with the fol-
lowing 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 south-
east 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 by tracing them from the georeferenced raster.
Digitizing the wetlands from the PDFs of permitting
documents inherently introduces errors into the wetland
boundaries and acreages (Gong etal. 1995). As such, Figs.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 Fig.1 as “Jurisdictional under CWR”
were traced from USACE-verified TTL maps dated Novem-
ber 2019. Wetlands shown in Fig.1 as “Non-Jurisdictional
under NWPR” were traced from USACE-verified TTL
maps dated October 2020. Flowlines shown in Fig.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. Flowlines delineated by TTL in 2019 and determined
to be non-jurisdictional ditches and wetland swales during
the first stage of USACE verification are included in Fig.1
as “Field-Delineated Flowlines”. Additional USGS stream-
lines labelled “NHD Streamlines” are National Hydrography
Dataset (NHD) line features added from the NHDPlus HR
geodatabase for HUC-0307 (USGS 2021a). Imagery-derived
wetland polygons in Fig.2 are from the National Wetlands
Inventory (NWI) (USFWS 2020). USACE-verified stream
and wetland extents shown on Fig.1 are more accurate than
imagery and digital elevation model- (DEM) derived stream
and wetland extents sourced from the NHD and NWI (Fritz
etal. 2013).
Findings
The relatively flat surface of the ridge features numerous
depressional wetlands (Figs.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
permit under Section §404 of the CWA requiring mitigation
for eliminating all of 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 permit-
ting was necessary. Considering only the currently pro-
posed 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 (Fig.1).
Portions of some of these wetlands extend beyond the per-
mit boundary (Fig.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,
totaling 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 dura-
tion. Even at the top of the ridge, groundwater levels are
very near the ground surface according to the hydrogeo-
logic 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 veg-
etation 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 (Figs.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 follow-
ing 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 (Fig.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 util-
ity (Fig.2). Silvicultural ditching to reduce groundwater
levels is an acceptable practice under the CWA, but silvi-
cultural ditches are typically straight and regularly-spaced.
This drain does not have the characteristics of a historical
silvicultural ditch for reducing groundwater levels. Past
straightening of an intermittent or perennial stream should
not change its jurisdictional status.

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Policy Implications
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 juris-
dictional, but under the NWPR, none of these wetlands
were deemed jurisdictional. Thus, no Federal review or
permitting was required for the 232ha mining proposal
under the NWPR.
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 1940s, decades
before passage of the Clean Water Act. The density of
depressional wetlands did not pose permitting, compensa-
tory wetland mitigation, or reclamation problems for min-
ing companies prior to the CWA.
Passage and implementation of the CWA has deterred
titanium mining of Trail Ridge in Georgia near the Okefe-
nokee 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 pres-
ently proposed operation. Then Secretary of Interior Bruce
Babbitt toured the swamp and publicly proclaimed Fed-
eral government opposition to the project (USFWS 2019).
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 Conser-
vation Fund, of which 7000 acres were then added to the
Okefenokee National Wildlife Refuge, and then sold the
rest of the land (Georgia Recorder 2019).
Prior to the NWPR, Twin Pines had submitted an appli-
cation for a larger mining project of 973ha, but it would
have required extensive mitigation, and USACE had rec-
ommended that an EIS be required for the project (USACE
memorandum 2019). In addition, USEPA and USFWS
both wrote letters indicating opposition or serious reser-
vations 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 (G. polyphemus), the
indigo snake (D. 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.
The NWPR represented a major shift in US wetland
policy, essentially abandoning the “no net loss” of wet-
lands policy of the George H.W. Bush administration
adopted in 1989. This case study vividly illustrates that
the NWPR provided no protection for depressional wet-
lands that lack obvious surface connection to intermittent
and perennial streams. This was not a policy oversight -
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 Adminis-
trator Andrew Wheeler is quoted, “EPA and the Army are
providing much needed regulatory certainty and predicta-
bility 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 thriv-
ing.” Internal to these agencies, this rule change was con-
troversial. Prior to publication of the NWPR, EPA’s Sci-
ence 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). The SAB
consists of independent scientists from academia, industry,
and NGOs who review the quality of technical information
used to justify agency policies and actions.
Without Federal jurisdiction over the wetlands and
streams in the proposed mining area, all permitting respon-
sibilities fall to the state and the county. The State of Georgia
has no laws protecting freshwater wetlands, nor does Charl-
ton County, so in this case the wetlands have no legal protec-
tions and thus their destruction would require no mitigation.
In 2017, only 27 of the 50 states in the US had laws pro-
viding substantial protection for small freshwater wetlands
(though the level of protection varies widely), so in much of
the country, protection of freshwater wetlands comes only
from the CWA (Creed etal. 2017).
Under the NWPR, classification of the type and flow sta-
tus of surface drainage features is crucial to the determina-
tion 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 precipi-
tation (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

Wetlands (2021) 41:106
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106 Page 8 of 10
that flow only in response to precipitation will not be satu-
rated long enough to develop hydric soils in the bed. At this
site, however, at least two drainages with hydric soil condi-
tions 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 arbitrari-
ness in jurisdictional determinations. This arbitrariness is a
symptom of a categorical view of hydrologic connections
to navigable waters. From a hydrological perspective, the
entire landscape is connected to navigable waters, and con-
sequently actions that affect water quality anywhere in the
landscape affect water quality in navigable waters (Freeman
etal. 2007).
Ecosystem Service Implications
Headwater streams and small wetlands provide an assort-
ment of ecosystem services (Millennium Ecosystem Assess-
ment 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 2021b) and are where uplands and
aquatic systems functionally interact (Freeman etal. 2007;
Leibowitz etal. 2018). Rainfall that falls within a water-
shed 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; Leibowitz
etal. 2018) while simultaneously filtering out unwanted con-
taminants entering from uplands (Marton etal. 2015). Head-
water 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 wet-
lands comprise a large portion of the active storage feeding
the stream system (Jones etal. 2018; Lee etal. 2020). In
north Florida, near the Twin Pines project, small depres-
sional 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. 2012; 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 suc-
cess (Gregoire and Gunzburger 2008). In the southeastern
US, an important nexus exists between larger streams and
rivers and nearby small wetlands via gravid female alliga-
tors (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 (Sub-
alasky etal. 2009). Again, if headwater streams or wetlands
are eliminated, as proposed by the Twin Pines project, eco-
system services provided by biodiversity will be impaired.
As mentioned by USFWS (USFWS 2019), upland biodiver-
sity may also be imperiled.
Conclusions
This case study shows that in geologic environments rich in
depressional wetlands and ill-defined surface drainages, the
Navigable Water Protection Rule would allow destruction of
large numbers and areas of ecologically significant wetlands.
Consequently, protection for upland depressional wetlands
would fall to the states, many of which do not have specific
laws prohibiting destruction of such wetlands. Under the
NWPR, the determination of jurisdiction depends upon the
assessment of whether connecting drains flow ephemerally
or at least intermittently. Such a determination is difficult
based on short visits unsupported by stream monitoring, and
thus the determination of CWA jurisdiction over headwa-
ters and adjacent depressional wetlands under the NWPR is
somewhat capricious in practice.
Supplementary Information The online version contains supplemen-
tary material available at https:// doi. org/ 10. 1007/ s13157- 021- 01512-8.
Acknowledgements The Southern Environmental Law Center assisted
us with understanding the timeline of this permitting process and pro-
vided us with copies of relevant documents from the permitting pro-
cess. Darold Batzer is supported by the USDA Hatch Program. This
work was partly supported by the USDA McEntire-Stennis program.
Authors’ Contributions CRJ, CS, LAS, and DPB together scoped this
analysis, interpreted the data together, and contributed to the writing
and editing. CS did the GIS work and mapping.

Wetlands (2021) 41:106
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Page 9 of 10 106
Funding This work was not supported by a specific grant, but par-
tial support was provided by the USDA Hatch and McEntire-Stennis
programs.
Data Availability Most of the records used in this analysis are publicly
available. Some of the permitting correspondence was obtained by the
Southern Environmental Law Center through the Freedom of Informa-
tion Act. The corresponding author can be contacted for the GIS files
used in Figs.1 and 2 and files that can’t be found in the public record.
The agency letters and memos cited in the text are included in the sup-
plementary materials.
Code Availability Not applicable.
Declarations
Conflicts of Interest/Competing Interests None.
Ethics Approval Not applicable.
Consent to Participate Not applicable.
Consent for Publication Not applicable.
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