The U.S. Environmental Protection Agency (EPA) recently clarified the definition of Waters of the U.S.(WOTUS) and announced its intention to redefine the regulation with the U.S. Army Corps of Engineers (USACE). Watch for more changes to how the EPA will interpret WOTUS.
Defining WOTUS: “Continuous Surface Connection”
On March 12, 2025, the EPA and USACE released a memorandum addressing requests for clarification of the interpretation of adjacent wetlands under the Clean Water Act following the May 2023 Sackett v. EPA Supreme Court decision. The memorandum aimed to clarify the definition of “continuous surface connection” and, by extension, what qualifies as an adjacent jurisdictional wetland for implementation under the WOTUS Rule, as applied under the two active regulatory frameworks currently in effect in the U.S. (“amended 2023 rule” and “pre-2015 regulatory regime”). This memorandum presents a narrower interpretation of several of the issues posed under the Sackett decision, much narrower than how the EPA has interpreted the decision in the past months.
Examining The Waters Of The U.S. Rule
EPA Administrator Lee Zeldin announced on March 12 that the EPA will work with the USACE to review and revise the definition of WOTUS. The EPA and USACE plan to revise the rule as quickly as possible.
On March 12, the EPA issued a Formal Public Notice to be published in the Federal Register titled “WOTUS Notice: The Final Response to SCOTUS." The notice outlines a plan to collect feedback on the meanings of key terms related to the Sackett decision and ultimately inform future rulemaking.
Informational Listening Sessions
The EPA and USACE will gather information from the public via Listening Sessions. Topics on which EPA will request input include:
- Scope of ‘relatively permanent’ waters
- Scope of ‘continuous surface connection’
- What it means to ‘abut’ a jurisdictional water
- Temporary interruptions in surface connection (as referenced in the Sackett decision)
- Scope of jurisdictional ditches
How & When To Submit Remarks
According to the pre-publication in the Federal Register, listening sessions will be held in person and via virtual conferences in late April and early May. Registration instructions and dates will be forthcoming at the following website: https://www.epa.gov/wotus/public-outreach-and-stakeholder-engagement-activities. Verbal feedback can be provided in the meetings, and written feedback can be provided via the website's portal. Registration is now open for listening sessions for Industrial and Agricultural Stakeholders on May 1 from 9:30 a.m. to 12 p.m. and Environmental and Conservation Stakeholders on May 1 from 1 to 3 p.m. Listening sessions for the public have yet to be announced.
What Does This Mean for Existing Projects?
USACE guidance on abutting and "continuous surface connection" was published on March 12, 2025, and became effective immediately. This guidance may affect USACE projects with pending or previously approved jurisdictional determinations and permit applications*.
This is a change in federal policy and does not impact what a state considers jurisdictional. As such, state agency authority will not change. Please reach out to your local DRG team for state-level regulatory updates.
Stay Tuned!
DRG will continue to monitor changes and share information as it is received. If you have questions about this information or any potential impact on your projects, please contact your project manager or one of the staff listed below.
Article Contributors:
Heather Bobich, Area Manager, Davey Resource Group Indiana Office
Sarah Domanick, Senior Associate Consultant, Davey Resource Group Northern Ohio Office
* Please see the list of EPA/HQ Memorandum determinations issued over the last year to assist in implementing the amended 2023 Rule that are still active or rescinded per the March 12th memo. The invalidated/rescinded ones correlate with the March 12th rescinding of the CSC via “non-jurisdictional” discrete features such as ditches/culverts/swales/pipes:
- NWO-2003-60436-Active
- LRB-2021-01386-Active
- MVS-2023-00288-Active
- LRL-2023-00466-Active
- SAS-2001-13740-Active
- NWP-2023-00602-invalidated/rescinded
- NAP-2023-01223-invalidated/rescinded
- NWK-2022-00809-invalidated/rescinded
- SWG-2023-00284-invalidated/rescinded
- LRB-2023-00451-invalidated/rescinded
- POH-2023-00187-invalidated/rescinded
- NWK-2024-00392-invalidated/rescinded
- NWS-2023-00923-Active
- MVR-2023-0828-invalidated/rescinded
