U.S. Fish and Wildlife invokes federal water rights to protect huge swamp in Georgia

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The Okefenokee Swamp in South Georgia is larger than all of New York City. Parts of it are a national wildlife refuge. Now, the state of Georgia is on the cusp of permitting a controversial mine right next to it, and federal officials are fighting to stop it. Marisa Mecke of member station WABE reports.

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MARISA MECKE, BYLINE: Matt Rouse glides along the reflective water of the Okefenokee Swamp in a wide tour boat. Cypress trees tower over the old canal path once used for logging, and alligators cut through the waterway.

MATT ROUSE: We are entering the largest completely freshwater swamp in North America.

MECKE: Rouse leads tours with nonprofit Okefenokee Adventures. He says people realize this place is unique. Right now it's in the running to be listed as a UNESCO World Heritage site.

ROUSE: You almost have to go to the Amazon basin in South America to find an area this big with this kind of biodiversity.

MECKE: Which is why there's been major outcry since 2019. That's when Alabama-based Twin Pines Minerals proposed building a titanium dioxide mine right next to the swamp. It's a mineral mostly used to whiten products like toothpaste and the cream in Oreos, and opposition to the project has been swift.

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MELISSA MARTIN: What in the hell are you thinking?

VIRGINIA WILLIS: It's nothing but unbridled greed.

MEGAN HUYNH: The idea of compromising the integrity of this wildlife refuge for the color of toothpaste is inconceivable.

MECKE: That's Melissa Martin, Virginia Willis and Megan Huynh, an attorney with the Southern Environmental Law Center at a public hearing. They were among over 70,000 people who submitted their comments - the most Georgia environmental officials have ever seen for a single project. That didn't stop Georgia from issuing draft permits for the mine in February. State officials say a final decision will come once they've gone through all the public comments. Just a few years ago, Georgia wouldn't have been in this position, says attorney Huynh.

HUYNH: Nearly half of the project site was protected under the Clean Water Act.

MECKE: She says Trump-era rollbacks of the Clean Water Act and a Supreme Court decision last year affected federal wetlands.

HUYNH: And, unfortunately, all of the protections on the proposed mine site were lost.

MECKE: Twin Pines says its studies show the mine will have no impact on the swamp. But the federal government did its own modeling, and its scientists have major concerns that the mine will decrease water levels in the swamp and increase wildfire threats. So the U.S. Fish and Wildlife Service is resorting to a tool it's never employed in the East. It's called federal reserved water rights.

RYAN ROWBERRY: I think this is a bellwether.

MECKE: Georgia State University law professor Ryan Rowberry specializes in water law. He says this is a doctrine that gives the U.S. government the right to the water it needs to operate federal lands like national parks or monuments. It's used in the West, where water is really carefully parceled out. But it'll be new in the East, where water has usually been considered plentiful by law.

ROWBERRY: With climate change, I do think this might be another tool that the Fish and Wildlife Service would like to sharpen in their toolbox.

MECKE: Rowberry says federal reserved water rights can apply to places like the Okefenokee. So if Georgia issues permits and doesn't account for federal reserved water rights, Rowberry says the U.S. government can sue the state. An attorney for Twin Pines calls the federal government's claim a publicity stunt with no future. Georgia officials say they have met with U.S. Fish and Wildlife but wouldn't speak on the water rights issue.

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MECKE: Back at the swamp, national wildlife refuge manager Michael Lusk says, right now, the Okefenokee has the water it needs. It's a balanced system.

MICHAEL LUSK: And the fact that it's an entire fully functioning ecosystem on a gigantic scale is what makes it unique.

MECKE: And he hopes federal reserved water rights can keep it that way should the state of Georgia decide to allow mining next to the swamp.

For NPR News, I'm Marisa Mecke in the Okefenokee Swamp.

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