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By Michael Phillis

and Suman Naishadham

The Associated Press

ST. LOUIS 鈥� The Biden administration is moving to tighten oversight of projects that benefitted from Trump-era loosened water protections, but some projects 鈥� including a controversial titanium mine proposed in Georgia 鈥� will likely be able to escape new scrutiny.

It鈥檚 the latest twist in a long-running dispute over the scope of the Clean Water Act, with each new administration aiming to聽shift聽which waterways require federal protections. The new guidance aims to diminish the impact of Trump-era environmental rollbacks, which included eliminating federal protections for numerous small streams, wetlands and other waterways.

In a recently posted policy, the Biden administration said many developers would not be able to rely on favorable assessments they got under Trump.

However, the new guidance generally does not apply to developers if they were told that none of the waters on their property site were subject to federal oversight under Trump and could advance without a federal permit 鈥� even if the same waters are now protected under the tightened rules currently in place.

It鈥檚 not clear how many projects could bypass stricter scrutiny. Among them is the 600-acre Twin Pine Minerals project, which would facilitate mining of titanium and other minerals a few miles outside the Okefenokee Swamp 鈥� home to the largest U.S. wildlife refuge east of the Mississippi River. Environmental advocates have long opposed the聽project, arguing that it threatens hundreds of acres of critical wetlands.

鈥淭he Corps鈥� interpretation of its policy causes an absurd result for sites like Twin Pines,鈥� said Kelly Moser, an attorney with the Southern Environmental Law Center, a project opponent.

The project still needs permits from state regulators.

In December, a U.S. Fish and Wildlife Service official wrote to the U.S. Army Corps of Engineers and the Environmental Protection Agency seeking more oversight for Twin Pines. Leopoldo Miranda-Castro, a regional director for the USFWS, expressed concern that the project could affect wetlands that are federally regulated under tighter rules.

The mining project could dry out vegetation and increase the risk of fires 鈥� a potential threat to animals such as the endangered red-cockaded woodpecker, Miranda-Castro said.

The mine would have a 鈥渘egligible effect鈥� on Okefenokee鈥檚 water levels, according to Twin Pines President Steve Ingle. If the company sought to expand the mine, it would need to show that it had acted in an environmentally responsible way and go through a permitting process.

鈥淧rotecting the Okefenokee is not just the right thing to do from an environmental perspective; it is the only reasonable course of action from a business standpoint,鈥� Ingle stated.

Twin Pines鈥� original proposed plan would have required a permit under stricter, previous regulations. Its path forward was easier under Trump鈥檚 rollback, and the team was able to modify its proposal so the property site would not touch any federally regulated waters, according to letters provided by the Southern Environmental Law Center. The company then withdrew its permit.

Developers that apply for a federal water permit could now have their projects assessed under the interim rules.

Environmentalists are pushing federal agencies to revisit their findings on Twin Pines.

The company could face a lawsuit alleging it violated the Clean Water Act, according to Ann D. Navaro, an attorney who represents developers and a former assistant chief counsel for litigation at the Army Corps.

The federal permitting process allows the public to comment on projects, and it can force builders to reduce the harm that construction causes to waterways.

In August 2021, an Arizona federal judge who struck down the Trump-rule cited federal efforts that identified more than 300 projects that advanced under Trump that would have needed a permit under previous rules.

The Trump聽water rule聽was considered a聽victory聽for builders, oil and gas developers, farmers and others who expressed frustrations about the Obama administration鈥檚 rule and said protections of waterways are better left to states. Those groups often say that broad federal protections make their work difficult, in part because of lengthy permitting processes.

But in November, the Biden administration restored on an interim basis a 1986 rule that is broader in scope than the Trump rule, but narrower than the Obama administration鈥檚. The move formalized the earlier聽scrapping聽of Trump鈥檚 rule in federal courts.

Officials within the Biden administration have said its rewrite of the rule will be made sometime this year.

The National Association of Home Builders stated in a recent blog post that the changes amounted to 鈥渁 significant reversal鈥� of the Army Corps鈥� policy, adding that it would have 鈥渟ubstantial impacts on the ability of small companies and small landowners … to help meet the nation鈥檚 ambitious climate and infrastructure goals.鈥�

Before the Biden administration issued its recent interim guidance, Army Corps determinations were generally valid for five years, providing a level of certainty for developers, Navaro said. The new guidance undercuts that certainty and will force other developers to deal with current water protections if they want a Clean Water Act permit, she said.

鈥淭his policy will have significant timing and expense implications,鈥� she said.