It is a busy time for Waters of the U.S (WOTUS)! The U.S. Environmental Protection Agency (EPA) announced clarification in the definition of Waters of the U.S. and announced their intention to redefine WOTUS alongside the U.S. Army Corps of Engineers. Wetland Studies and Solutions, Inc. (WSSI) has reviewed the available information and provides this wrap up along with next steps.
Defining Waters of the U.S.: “Continuous Surface Connection”
The EPA and the Corps published a memorandum on March 12 in response to requests for clarification on the interpretation of adjacent wetlands under the Clean Water Act related to the May 2023 Sackett v. EPA Supreme Court decision. The memorandum intends to clarify the term “continuous surface connection” and thereby clarify what counts as an adjacent jurisdictional wetland for implementation under the Waters of the U.S. Rule as implemented by the two currently operative regulatory regimes in effect within 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 EPA will work with the Corps to review and revise the definition of WOTUS. As stated in the press release, the EPA and Corps plan to “move quickly” to revise the WOTUS rule.
Also on March 12 the EPA provided a Formal Public Notice to be published in the Federal Register entitled “WOTUS Notice: The Final Response to SCOTUS,” a plan to collect feedback on the meanings of key terms as related to the Sackett decision and ultimately inform future rulemaking.
Listening Sessions
The EPA and Corps are gathering information from the public via Listening Sessions. Topics on which EPA is requesting 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 and When to Submit Remarks
As noted in the March 12, 2025 pre-publication published in the Federal Register, “The listening sessions will be held as web and in-person conferences in late March-April 2025. 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 portal that will be accessible at the link above.”
We will update our Field Notes readers when the schedule is available.
What Does This Mean for Existing Projects?
The guidance on “continuous surface connection” and interpretation of abutting was effective immediately upon publication on March 12. It could impact projects with pending approved jurisdictional determinations, previous approved jurisdictional determinations, and/or permit applications with the Corps.
This is a change in federal policy, and does not impact what a state considers jurisdictional, so state agency authority will not change.
Stay Tuned!
WSSI will continue to monitor changes and will share information in Field Notes. If you have questions about this information or the impact on your projects, please contact your project manager or one of the staff listed below.
Resources
- Memorandum to the Field Between the U.S. Department of the Army, U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency Concerning the Proper Implementation of “Continuous Surface Connection” Under the Definition of “Waters of the United States” Under The Clean Water Act, March 12, 2025
- Administrator Zeldin Announces EPA Will Revise Waters of the United States Rule, March 12, 2025
- WOTUS Notice: The Final Response to SCOTUS; Establishment of a Public Docket; Request for Recommendations, March 12, 2025 pre-publication notice