EPA/Corps Clarify the Continuous Surface Connection

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers issued a Memorandum to the Field on March 12, 2025 (the Memorandum) which seeks to clarify the meaning of the phase “continuous surface connection” as it relates to jurisdiction over adjacent wetlands under the Clean Water Act in the wake of the U.S. Supreme Court’s ruling in Sackett v. EPA. [1] By doing so, the EPA and the Corps seek to provide “national consistency and eliminate confusion.”

Sackett was clear enough. The Supreme Court held:

In sum, we hold that the CWA extends to only those wetlands that are as a practical matter indistinguishable from waters of the United States. This requires the party asserting jurisdiction over adjacent wetlands to establish: first, that the adjacent body of water constitutes waters of the United States (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins. [2]

Sackett relied and drew on two prior Supreme Court decisions. In Riverside Bayview, the Supreme Court upheld jurisdiction over wetlands abutting hydrographic features identifiable as waters, “principally due to the difficulty of drawing any clear boundary between the two,” but “nowhere did we suggest that ‘the waters of the United States’ should be expanded to include … entities other than hydrographic features more conventionally identifiable as waters.” [3] In Justice Scalia’s plurality opinion in Rapanos, the Supreme Court stated:

Therefore, only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right, so that there is no clear demarcation between waters and wetlands, are adjacent to such waters and covered by the Act. Wetlands with only an intermittent, physically remote hydrologic connection to ‘waters of the United States’ do not implicate the boundary-drawing problem of Riverside Bayview. [4]

Under these cases, then, adjacent wetlands are those that physically or directly abut covered waters. However, the EPA and the Corps had their own, more expansive interpretations of these cases, which, not surprisingly, allowed for broader assertions of jurisdiction.

In the Rapanos Guidance issued in 2008, EPA acknowledged that adjacent means ‘physically abutting’ but also stated: “A continuous surface connection does not require surface water to be continuously present between the wetland and the tributary.” Further, in relation to the January 2023 rule-making, EPA stated a wetlands can be connected to a covered water “by a discrete feature like a non-jurisdictional ditch, swale, pipe, or culvert.” [5] This point was re-iterated in the November 2023 guidance issued in the wale of Sackett. [6]

Based on the Corps’ more expansive views of its jurisdiction, the Memorandum was needed. The Memorandum makes clear that “adjacent” means “physically abutting.” Thus, adjacent wetlands are “those that directly ‘abut’ covered waters.’” It goes on to state that “unless a wetland has a continuous surface connection – directly abutting a requisite jurisdictional water – it cannot be determined to be jurisdictional as an adjacent wetland.”

Importantly, the Memorandum firmly rejected language in prior guidance documents related to “a discrete feature like a non-jurisdictional ditch, swale, pipe, or culvert” because it is “in tension with the pre-2015 regime and Sackett and the purpose of this memo is to align the agencies’ interpretation of adjacency with Sackett.” The Memorandum further states:

Therefore, an interpretation of continuous surface connection which allows for wetlands far removed from and not directly abutting covered waters to be jurisdictional as adjacent wetlands has the potential to violate the direct abutment requirement for adjacent wetlands under the plurality’s standard and now Sackett’s endorsement of that standard. Therefore, any components of guidance or training materials that assumed a discrete feature established a continuous surface connection are rescinded.

The Memorandum also makes the following points:

• “The agencies are interpreting waters of the United States to include 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).”
• “Pursuant to the Rapanos plurality, wetlands with only an intermittent, physically remote hydrologic connection to waters of the United States do not implicate the boundary-drawing problem of Riverside Bayview and thus do not have the necessary connection to covered waters that triggers CWA jurisdiction.”
• The wetland “must have a continuous surface connection to a requisite covered water making it difficult to determine where the water ends and wetland begins.” [7]

The Memorandum is “effective immediately.”