Army Corps resumes jurisdiction over proposed strip mine site near Okefenokee Swamp 2022-06-03

Update 2022-06-05: WWALS Press Release, Army Corps resumes oversight; miners have to reapply for strip mine too near Okefenokee Swamp.

The U.S. Army Corps of Engineers (USACE) has reversed its October 2022 abdication of oversight over the proposed titanium strip mine site too near the Okefenokee Swamp. That puts Twin Pines Minerals back to re-applying for a USACE permit, in addition to its permit applications to the Georgia Environmental Protection Division (GA-EPD).

[Michael Connor. Photo: Indianz.com 2022-02-14--indianz-michael-connor]
Michael Connor. Photo: Indianz.com 2022-02-14

Russ Bynum, Associated Press, June 3, 2022, Agency ruling delivers big setback to Okefenokee mining plan: A federal agency has delivered a big setback to a company’s controversial plan to mine at the edge of the Okefenokee Swamp’s vast wildlife refuge,

…A government memo said the Army Corps of Engineers is reasserting jurisdiction over Twin Pines Minerals’ proposal to mine minerals just outside the Okefenokee, home to the largest U.S. wildlife refuge east of the Mississippi River.

Michael Connor, the assistant Army secretary for civil works, said in the Friday memo that prior decisions waiving the Army Corps’ jurisdiction over the Georgia mining plan and another proposed mine outside Tucson, Arizona, had been reversed.

Connor wrote that both projects would have to start over with new applications for federal permits. He said the prior decisions allowing them to bypass federal regulators “are not valid” because tribal governments with ancestral ties to the proposed mining sites had not been consulted.

The Twin Pines project in Georgia will require consultation with the Muscogee Creek Nation before it can move forward, the memo said.

“We have said from the day we announced our plans that we would follow the regulations before us at any given time,” Steve Ingle, president of Twin Pines, said in a statement. He added: “We intend to move forward with our application and fulfill all requirements.”

Marisa Mecke, Savannah Morning News, June 3, 2022, Army Corps blocks mine near Okefenokee, cites failure to consult Muscogee Creek Nation,

The decision came after a request from Georgia Sen. Jon Ossoff to restore federal protections of the wetlands in the country’s largest blackwater swamp due to its cultural and historical importance to the Muscogee (Creek) Nation.

Alabama-based Twin Pines Minerals, as previously reported by Savannah Morning News, submitted applications in late 2020 for multiple permits from the Georgia Environmental Protection Division to mine titanium oxide, often used in whitening products, as well as other heavy metals on more than 500 acres of ancient beach dunes called Trail Ridge in Charlton County. The dunes, which border the swamp and help contain it, are within 3 miles of the Okefenokee National Refuge, a U.S. Forest Service property.

“My whole team and I are exhilarated and thrilled to announce this restoration of protection for the Okefenokee Wildlife Refuge and surrounding wetlands,” Ossoff said in an interview with Savannah Morning News.

According to Ossoff, at his request the U.S. Fish and Wildlife Service redoubled its efforts to analyze the potential damage and found that the risk the mine posed to the swamp was extreme.

“The Okefenokee is precious for all Georgians and it is sacred land for the Muscogee Creek Nation,” Ossoff said. In addition to working with a range of government agencies, Ossoff said he worked with tribal leadership.

The corps concluded it did not properly consult with the Muscogee Creek Nation when initially granting mining rights.

Connor pointed to a Jan. 26, 2021 memorandum from President Joe Biden, who directed all federal agencies to engage in “regular, meaningful, and robust consultation with Tribal Nations on Federal actions that have Tribal implications.”

He also noted an April 20, 2021 memo from the acting assistant secretary of the Army for Civil Works, which changed a policy that previously stated tribal nations didn’t need to be consulted in the Army Corps of Engineers’ decisions about whether waters are, or are not, under its jurisdiction for protection and management.

According to the memorandum, the Muscogee Creek Nation sent a letter dated April 10, 2020, stating they had not been officially consulted on the Twin Pines mine, and later they asked the Savannah District of the Corps in a March 2021 email about the process to be consulted on the decision as to whether the wetlands are under the auspices of the Army Corps of Engineers.

The Savannah District of the Corps concluded that 556 acres of wetlands were excluded under the Navigable Waters Protection Rule, leaving them outside the Army Corps of Engineers’ federal protections for wetlands and under the jurisdiction of Georgia to decide how to protect them, although this didn’t include the Muscogee Creek Nation’s input.

[Site Locations & Topographic Map]
Site Locations & Topographic Map: Twin Pines Minerals’ own map of their Alternative 2, which is 400 feet from the Swamp.

Since then, the fate of the Okefenokee has been awaiting the issuance of permits from the Georgia EPD. In the meantime, environmentalists have shared their concerns over the environmental and hydrological impacts of the mining facility.

After dilatory and insuffient respones for years, Twin Pines Minerals finally responded May 25, 2022, to Georgia EPD’s latest request for information of February 7, 2022, after a February 23, 2022 meeting between those two parties. But it’s back to square one for TPM, namely back to USACE permit applications, in addition to GA-EPD permit applications.

Savannah Morning News again:

“I just want to thank everyone that joined in this effort,” Ossoff said, including people of all political persuasions, environmentalists and conservationists. “This is a wonder of the world, and we’ve averted disaster by restoring these protections.”

Jon Ossoff, U.S. Senator for Georgia, June 3, 2022, Sen. Ossoff Secures Restored Protection of Okefenokee National Wildlife Refuge,

Washington, D.C. — U.S. Senator Jon Ossoff has successfully secured restored protection of the Okefenokee National Wildlife Refuge.

Today, following Sen. Ossoff’s year-long efforts, the U.S. Army Corps of Engineers heeded Sen. Ossoff’s call to restore key Federal protections over the wildlife refuge by reversing their previous decision that allowed for mining near the Okefenokee, which the U.S. Fish and Wildlife Service warned threatened the water quality and health and safety of precious wildlife in the area.

Since his initial inspection of the wildlife refuge, Sen. Ossoff has pressured multiple government agencies to assess the environmental, cultural, and economic risks of mining near the Okefenokee, emphasizing the wildlife refuge’s significant historical connection to the Native American community, particularly the Muscogee (Creek) Nation.

The Army Corps cited a lack of consultation with the Muscogee (Creek) Nation during the initial review process as the key reasoning for vacating the approved jurisdictional determination. This decision will stop the potential destruction of the Okefenokee from the proposed mining project and will require any mining company wishing to proceed with a project to start the Federal review process over from the very beginning.

Apparently the Okefenokee Swamp is still Indian Country, despite Andy Jackson removing Native Americans two centuries ago to Oklahoma, where the Muscogee Creek Nation is currently based. Just because they don’t live there anymore does not mean they don’t have deep historical roots there.

Perhaps Sec. Connor is an attorney and an engineer. Perhaps he is also motivated by being a Native American himself.

U.S. Senate Committee on Energy & Natural Resources, September 17, 2013, Statement of Michael Connor Nominee for the Position of Deputy Secretary of the United States Department of the Interior,

As I noted to this Committee during my 2009 confirmation hearing, I grew up in New Mexico, a state rich in natural resources (with the exception of water) and which has a land base that is slightly over one-third in federal ownership. It is a state where approximately ten percent of the population is Native-American and I am proud that my maternal grandfather was a leader within the Taos Pueblo. My childhood home, where my parents still live, is located across the street from a major irrigation canal that serves agricultural land within the Elephant Butte Irrigation District. It has been said that if you don’t know where you are, you don’t know who you are. I would like to think that knowing and understanding where I am from has helped me better understand the responsibilities of the Department of the Interior and the people we serve.

He said something similar on July, 13, 2021, in his confirmation hearing before the Senate Armed Services Committee as Nominee to be Assistant Secretary of the Army for Civil Works.

Mark Macarro, Indianz.com, February 15, 2022, Assistant Secretary of the Army for Civil Works Michael Connor addresses the National Congress of American Indians on February 14, 2022.

Connor’s work includes oversight of the U.S. Army Corps of Engineers, whose record in Indian Country has been negative, both historically and more recently, most notably with the illegal operation of the Dakota Access Pipeline.

Connor spoke during NCAI’s executive council winter session, which took place virtually due to COVID-19. He took questions from participants following his remarks.

“We want to do more work in Indian Country. We want to improve relationships,” said Connor, who is a citizen of the Pueblo of Taos, a federally recognized tribe in New Mexico.

USACE Memo

See also PDF.

DEPARTMENT OF THE ARMY
OFFICE OF THE ASSISTANT SECRETARY
CIVIL WORKS
108 ARMY PENTAGON
WASHINGTON DC 20310-0108

3 June 2022

SACW

MEMORANDUM FOR COMMANDING GENERAL, U.S. ARMY CORPS OF ENGINEERS

SUBJECT: Approved Jurisdictional Determinations (AJDs) for the Rosemont and Twin Pines Parcels

1. References:

a. Memorandum for the Heads of Executive Departments and Agencies dated January 26, 2021 from President Joseph R. Biden, subject: Tribal Consultation and Strengthening Nation-to-Nation Relationships.

b. Memorandum for Commanding General, U.S. Army Corps of Engineers dated April 20, 2021, from the Acting Assistant Secretary of the Army (Civil Works), subject: Rescission of Previous Guidance – Tribal Consultation Associated with a Draft Approved Jurisdictional Determination (AJD).

c. Letter to Mr. Stuart Gillespie of Earthjustice dated January 8, 2021, from the Los Angeles District Commander of the U.S. Army Corps of Engineers, subject: Tribal Consultation Concerning HudBay Mineral’s Approved Jurisdictional Determination Requests (AJDs) Relating to the Rosemont Copper Mine.

d. Letter to Col. Daniel Hibner, Savannah District Commander of the U.S. Army Corps of Engineers dated April 10, 2020, from Mr. Turner Hunt, Muscogee Creek Nation (MCN) Historic and Cultural Preservation Department.

2. Background. The U.S. Army Corps of Engineers (Corps) makes formal determinations stating the presence or absence of “waters of the United States” on a parcel through the issuance of an AJD. See 33 CFR 331.2. The Corps applies the criteria set forth in the rule defining “waters of the United States” when determining whether a parcel contains jurisdictional waters. See 33 CFR 328.3. The Navigable Waters Protection Rule (NWPR) was issued on April 21, 2020, to define “waters of the United States.” (85 FR 22250). On August 30, 2021, the NWPR was vacated nationwide (Pascua Yaqui Tribe v. U.S. Environmental Protection Agency).

In his January 26, 2021 memorandum, President Biden reaffirmed the Federal government’s enduring commitment to consultation as a means of strengthening the sovereign relationship between the United States and our Tribal Nations (reference 1.a.). The memorandum directs all Federal agencies to engage in regular, meaningful, and robust consultation with Tribal Nations on Federal actions that have Tribal implications. The Army’s Civil Works program has a long history of consultation with Tribal Nations on its projects, rules, and regulatory permit actions, and the Army Civil Works program is committed to maintaining and enhancing its record on consultation.

The Acting Assistant Secretary of the Army for Civil Works issued a memorandum on April 20, 2021 (reference 1.b.). The April 20 memorandum rescinded a previous memorandum that precluded tribal consultation associated with a draft AJD.

3. Rosemont Parcels AJD. On January 8, 2021, the Los Angeles District (LA District) of the Corps sent a letter to Mr. Stuart Gillespie of Earthjustice which rescinded the offer of government-to-government consultation with the Tohono O’odham Nation, the Pascua Yaqui Tribe, and the Hopi Tribe on the AJD requests received for the Rosemont parcels pursuant to the memorandum rescinded by reference 1.b. (reference 1.d.). On March 14, 2021, the LA District issued an AJD for the Rosemont parcels which determined that all ephemeral waters present on the site were excluded per regulation codified by the NWPR.

4. Twin Pines Parcel AJDs. In a letter dated April 10, 2020, MCN stated that they had not been officially consulted on the Twin Pines parcel AJD as required (reference 1.e.). Additionally, the MCN later asked the Savannah District of the Corps (Savannah District) in a March 2021 email about the process to consult on JDs. The Savannah District provided a copy of the memo dated January 4, 2021, which had precluded tribal consultation associated with a draft AJD and was later rescinded on April 20, 2021 (reference 1.b.). The Savannah District provided two AJDs on October 15, 2020, and March 24, 2021. These two AJDs concluded that 556 acres of wetlands were excluded under the NWPR.

5. This memorandum directs the Corps to immediately notify the AJD recipients for the Rosemont and Twin Pines parcels that they cannot rely on those AJDs to accurately delineate jurisdictional waters under the current regulatory regime and that their NWPR AJDs are not valid because the government-to-government consultations for the Federal actions regarding the determinations of jurisdictional status of waters on the parcels were not conducted as requested by the Tribes. As noted earlier, the Corps previously determined that the government-to-government consultation request for the Rosemont AJD was to be honored and the MCN previously inquired about government-togovernment consultation for the Twin Pines AJDs. Given the specific circumstances associated with these AJDs, it is my policy decision that the Corps should have honored these government-to-government consultation requests.

The Corps is also directed to notify the Rosemont and Twin Pines project proponents of their option to request a new AJD. Any newly issued AJD must follow the applicable regulatory regime for the definition of “waters of the United States” at the time of AJD issuance. With the vacatur of the NWPR, AJD requests are currently being completed consistent with the pre-2015 regulatory regime. If a new AJD request is received, the Corps shall extend government-to-government consultation requests to the Tohono O’odham Nation, the Pascua Yaqui Tribe, and the Hopi Tribe for the Rosemont parcels and the MCN for the Twin Pines parcel, as well as any other Tribal Nations who may be implicated by the respective AJDs. If consultation is initiated, no new AJD will be issued until the conclusion of such consultation.

6. Upon conclusion of any tribal consultations that may occur, and prior to the District making any decisions on the path forward for any AJD requested, the Corps shall provide an update to the ASA(CW) in the form of a briefing on the consultation process conducted with the Tribes.

7. These circumstances are unique to the Rosemont and Twin Pines parcels AJDs. Accordingly, the direction in this memorandum is limited to these AJDs and is not intended to establish or rescind any separate, nationwide policy guidance.

8. Questions regarding this matter may be directed to Stacey Jensen, Assistant for Regulatory and Tribal Affairs, Office of the Assistant Secretary of the Army (Civil Works), at (703) 459-6026 or stacey.m.jensen.civ@army.mil.

[signed]
MICHAEL L. CONNOR
Assistant Secretary of the Army
(Civil Works)

cf: DCG-CEO
DCW

 -jsq, John S. Quarterman, Suwannee RIVERKEEPER®

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