February 08, 2022 | E&E News | 1 minute read

Bracewell’s Ann Navaro spoke with E&E News how the proposed Twin Pines titanium mine near the Okefenokee National Wildlife Refuge in Georgia is caught in the crosshairs of a fight over just how far the federal government’s reach extends under the Clean Water Act and what determines a “water of the US” or WOTUS.

“If Twin Pines moves forward under the Trump administration WOTUS definition, they could be vulnerable to a citizen suit action alleging they are filling wetlands, as currently defined, in violation of the act,” said Navaro. “EPA could also decide to attempt an enforcement action based on the current WOTUS definition.”

The Army Corps in an October 2020 “jurisdictional determination” found that the roughly 400-acre area protected under the Obama administration did not, in fact, contain a WOTUS. That determination means the developer doesn’t have to — and isn’t — pursuing a permit to fill or dredge federally protected waters, a situation that some experts warn will leave the company legally vulnerable.

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