On March 12, 2025, EPA and the Army Corps of Engineers issued a joint memorandum providing guidance to field staff on implementing the definition of "waters of the United States" (WOTUS) as it pertains to "adjacent wetlands."1 The memorandum represents a new iteration of the decades-old debate on the extent of Clean Water Act (CWA) authority over wetlands adjacent to jurisdictional navigable WOTUS. The previous iteration took place under the Biden Administration after the Supreme Court announced a two-part test in Sackett v. EPA. There, the Supreme Court held that CWA authority over WOTUS extends only to wetlands when: (1) the adjacent body of water is a "relatively permanent body of water connected to traditional interstate navigable waters" and (2) the wetland has "a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins." The new guidance narrows the scope of WOTUS by clarifying the current administration's interpretation of when a wetland has a "continuous surface connection."
The new guidance states that CWA authority will not extend to wetlands that are connected to jurisdictional waters by discrete features like non-jurisdictional ditches, swales, pipes, or culverts. It also explicitly rescinds any components of guidance or training materials that assumed a non-jurisdictional discrete feature established a continuous surface connection, citing materials compiled under the Biden Administration. The new guidance from the Trump Administration takes issue with such prior implementation, finding the "discrete features" language in tension with the "continuous surface connection" standard that Sackett set forth. EPA and the Army Corps now state that WOTUS includes "only those adjacent wetlands that have a continuous surface connection because they directly abut the [requisite jurisdictional water] (e.g., they are not separated by uplands, a berm, dike, or similar feature)."
In addition to the new guidance, EPA and the Army Corps issued a notice in the Federal Register regarding their intent to engage with stakeholders and gather recommendations on the meaning of key terms from Sackett, such as "relatively permanent" and "continuous surface connection," to inform any potential future administrative actions to clarify the WOTUS definition and to ensure transparent, efficient, and predictable implementation.2 Stakeholders have challenged Biden-era implementation of CWA authority over adjacent wetlands in ongoing litigation, and the listening sessions are aimed at ensuring any potential, future action "will reflect consideration of the experiences of, and input received from, landowners, industry groups, the agricultural community, States, Tribes, local governments, community organizations, environmental groups, and the general public."
The agencies will hold at least six listening sessions, with two open to all stakeholders, one open to States, one open to Tribes, one open to industry and agricultural stakeholders, and one open to environmental and conservational stakeholders. 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 here.
The listening sessions may lead to a more robust form of administrative action, such as a rulemaking to amend the existing regulations defining WOTUS, which would be more difficult for a future administration to reverse.
Footnotes
2 WOTUS Notice: The Final Response to SCOTUS.
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