September 2007, Vol. 19, No.9


U.S. EPA, Army Corps Issue Joint Guidance To Sustain Wetlands Protection

On June 5, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers issued joint guidance for their field offices to ensure that America’s wetlands and other waterbodies are protected under the Clean Water Act (CWA), according to an EPA news release.

“This interagency guidance will enable the agencies to make clear, consistent, and predictable jurisdictional determinations,” said John Paul Woodley, assistant secretary of the Army (Civil Works). “The results, once posted on agency Web sites, will document how the scope of the Clean Water Act jurisdiction is being determined.”

EPA and Army Corps staff also will use the guidance when taking enforcement actions under CWA. The guidance clarifies those circumstances in which a person may have to obtain a CWA Sec. 404 permit before conducting activities in wetlands, tributaries, and other waters, EPA states. Individual tribal, state, and local laws, regulations, or policies may further protect aquatic water resources.

The guidance is consistent with the U.S. Supreme Court’s decision in the consolidated cases Rapanos v. United States and Carabell v. United States regarding the scope of the agencies’ jurisdiction under CWA. Specifically, EPA states, this guidance discusses the agencies’ protection of three classes of waters by

  • continuing to regulate “traditionally navigable waters,” including all rivers and other waters that are large enough to be used by boats that transport commerce and any wetlands adjacent to such waters;
  • continuing to regulate “non-navigable tributaries that are relatively permanent and wetlands that are physically connected to these tributaries”; and
  • continuing to regulate based on case-by-case determinations for other tributaries and adjacent wetlands that have certain characteristics that significantly affect traditionally navigable waters.

The guidance supports a strong regulatory program that ensures no net loss of wetlands, which is one of three key elements to the George W. Bush administration’s wetlands policy. The other two elements include an active management program that will result in the restoration, enhancement, and protection of 1.2 million ha (3 million ac) of wetlands by 2009 and a commitment to conserve isolated wetlands, such as prairie potholes.

During the first 6 months of implementing the guidance, the agencies are inviting public comments on case studies and experiences applying the guidance. Upon publication of the notice of availability in the Federal Register, comments can be submitted to docket EPA-HQ-OW-2007-0282 through The agencies will more broadly consider jurisdictional issues, including additional clarification and definition of key terminology, through rulemaking or other appropriate policy practice. For more information, see

Water Infrastructure Financing Tool Helps Borrowers

A new financial comparison tool developed by the U.S. Environmental Protection Agency (EPA) was designed to help states, municipalities, utilities, and other borrowers identify the most cost-effective method to fund water quality projects, according to an EPA news release. The Financing Alternatives Comparison Tool (FACT) calculates and compares costs associated with financing options for infrastructure projects. FACT can help prospective borrowers select the most appropriate financing option, whether it is a state revolving fund, a local bank, or another financing program, EPA said.

Potential borrowers can enter project information and data from multiple self-selected financing options, and FACT will produce a comprehensive analysis that incorporates financing, regulatory, and other important cost factors. It will also create a variety of useful reports and graphs, including a summary report that compares various financing options using key financial figures, the news release notes.
FACT also can generate graphical comparisons of annual and total costs of various financing options over time. The software is available on CD-ROM or may be downloaded free from the Clean Water Financing Web site at

U.S. EPA Takes Step Forward On Cleaning Up Abandoned Mines

New policies and administrative tools released in early June by the U.S. Environmental Protection Agency (EPA) will enable public and private parties to take voluntary cleanup actions at orphaned mine sites across the western United States, according to an EPA news release. These tools provide for the use of “Good Samaritan Settlement Agreements” to remove long-standing legal uncertainties associated with the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as the Superfund law.

Under a set of policies and model tools announced in June, EPA and volunteer parties will now be able to enter into Good Samaritan Settlement Agreements, the release notes. These agreements provide key legal protections to good Samaritans as nonliable parties, including a federal covenant not to sue under CERCLA and protection from third-party contribution suits. Other tools include a model comfort letter intended for good Samaritan parties, according to EPA.

The liability clarification that these tools provide will allow good Samaritans to proceed with qualified projects, such as efforts to remove and cap waste rock, tailings piles, and soils contaminated with high levels of lead, arsenic, zinc, and other metals in areas where they threaten human health and water quality.

There are an estimated 500,000 orphan mines in the United States, EPA notes, most of which are former hardrock mines located in the West. Thousands of watersheds and stream miles are impacted by drainage and runoff from these mines, one of the largest sources of water pollution in the region.
For more information, see

U.S. EPA Considering New Vessel Discharge Regulation

The U.S. Environmental Protection Agency (EPA) is seeking information as it considers how to develop a water permit program for pollutant discharges incidental to the normal operation of commercial vessels and recreational boats. Vessel owners or operators whose discharges previously have been exempt from Clean Water Act requirements will require a permit beginning Sept. 30, 2008, according to an EPA news release.

Regulated discharges may include ballast water, bilge water, deck runoff, and gray water. Approximately 143,000 commercial vessels and potentially more than 13 million state-registered recreational boats and more than 25 different types of vessel discharges could be affected.

For more information on this topic and to read the Federal Register notice, see