New Memorandum
As of March 12th, 2025, the Environmental Protection Agency (EPA) and the Army Corps of Engineers released a new Memorandum that provides clarity and guidance on the term “continuous surface connection” as related to the definition of Waters of the United States (WOTUS) under the Clean Water Act (CWA). The Memorandum adds new limitations on the EPA’s enforcement abilities and revises older policies and interpretations.
Here is a brief overview of the Memorandum:
The EPA and the Army Corp of Engineers are stepping back from previous interpretations that allowed jurisdiction over wetlands with connections through "discrete features" not natural connectivity. Now, wetlands that are not directly connected to jurisdictional waters will no longer be considered WOTUS. The aforementioned "discrete features" cannot be utilized to claim a body of water is directly connected to a wetland.
The Memorandum also pushes a two-step test for determining adjacent wetlands status from the SCOTUS case of Sacket v. Environmental Protection Agency (2023), which goes as follows:
- The adjacent body must be a WOTUS (“water of the United States”). A body of water that is a WOTUS can be easily used and is accessible or is a permanent body of water that is connected to an easily accessible body of water.
- The wetland in question must have a “continuous surface connection” to the adjacent body of water. For the “continuous surface connection” requirement, the wetland must be seen as difficult to determine where the adjacent water begins, and the wetland ends.
What does this mean for you?
The new Memorandum will prevent previously-thought jurisdictional waters from being considered WOTUS. With the new guidelines, challenges may arise when dealing with complex water situations as the Memorandum only addresses wetlands. SSCI will closely monitor legal challenges for interpretation changes and keep you informed.
Our team at SSCI Environmental and Engineering has incorporate these changes in our wetlands assessment processes, providing you with the highest level of service and reliability for your property development and maintenance needs.
If you have questions about how the new Memorandum might affect your projects, need assistance with your environmental assessment and remediation projects, or if you need more information, please check out our service page Natural Resources.
For more information about the EPA/Corps’ Memorandum, check out the EPA’s website.
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