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What A Difference A Single Memo Makes!

The scope of jurisdiction over wetlands under the Clean Water Act has long been debated and litigated. The Supreme Court and other courts have issued various rulings explaining and limiting the scope of such jurisdiction. The Corps of Engineers (Corps) and the Environmental Protection Agency (EPA), though, have not always strictly adhered to those rulings and have sought to expand their jurisdictional reach. Now, the Trump Administration seems determined to force compliance with those rulings.

The Supreme Court’s ruling in Sackett v. EPA was a clear statement about the limits of jurisdiction over adjacent wetlands pursuant to the Clean Water Act. In adopting Justice Scalia’s opinion in its prior Rapanos decision, the Supreme Court severely limited the Corps’ jurisdiction, holding that the Clean Water Act extends to only those wetlands that are as a practical matter indistinguishable from waters of the United States. The Corps must 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. Sackett v. EPA, 143 S.Ct. 1322, 1341 (2023).

Despite the clarity of this holding, the Corps seems to have resisted its application, seemingly seeking to assert and/or hold onto jurisdiction as much as possible. An example is found in the Fifth Circuit’s decision in Lewis v. EPA, 88 F.4th 1073 (5th Cir. 2023). In that case, it was clear that the two tracts at issue were miles away from a relatively permanent water body and connected by roadside ditches, a culvert, and a non-relatively permanent tributary. Still, the Corps clung to jurisdiction, forcing the Fifth Circuit to remark on the Corps’ “unwillingness to concede its lack of regulatory jurisdiction” and to emphatically state “enough is enough.” Lewis, 88 F.4th at p. 1076 and 1080. Ultimately, the Fifth Circuit ruled there were no jurisdictional wetlands on the two tracts.

Against this backdrop, the Trump Administration came into office in January 2025. Within 60 days, the EPA and the Corps issued a joint Memorandum to the Field on March 12, 2025 (the Memorandum). [1] The Memorandum states that it is being issued to provide “guidance on the meaning of the ‘continuous surface connection’ requirement” and noting that prior guidance on the subject was “inconsistent with … the Sackett decision.” Further, the Memorandum represented the “agencies’ views on the proper implementation of the definition of ‘waters of the United States’” and will be used “when determining if a wetland has a ‘continuous surface connection’ to a requisite jurisdictional water under the Clean Water Act.”

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.

In short, “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).” Further, “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.” Finally, 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.” Emphasis supplied; punctuation omitted.

What a difference the Memorandum has made! One specific example highlights at least one positive outcome of its application. 

An approved jurisdictional determination (AJD) was issued in December 2024 for a 120-acre site. The northern part had been placed into agricultural use years ago, but the southern portion was wooded. Various drains and ditches crossed the property, carrying water to ditches adjoining the property and eventually to roadside ditches. The roadside ditches ultimately drained to a relatively permanent waterway about a mile away. Prior to the issuance of the AJD, evidence was presented to the Corps in the form of reports and photographs establishing that the various drains and ditches, both on the property and off the property (the roadside ditches) had, at best, only intermittent or ephemeral flow.

Nevertheless, the Corps, in the AJD, described the various drains and ditches as tributaries and asserted that these drains and ditches created a continuous surface connection to the relatively permanent waterway. In fact, the Corps deemed the drains and ditches themselves as relatively permanent waterways, some with seasonal flow. The Corps then asserted jurisdiction over all the wetlands on the tract.

After an administrative appeal was requested and a suit for judicial review was filed, the Corps decided to reconsider the AJD. Applying the concepts included in the Memorandum, the Corps issued a new AJD. This time, the AJD found that the ‘tributaries’ (i.e., the drains and ditches) were not relatively permanent waterways, had only ephemeral to intermittent flow, and so lacked the required continuous surface connection. As a result, the wetlands on the tract were all deemed non-jurisdictional. Based on the application of the Memorandum, the property went from one with jurisdictional wetlands (which require a permit and mitigation to develop) to one without any jurisdictional wetlands or waters at all.

Of course, the key is that evidence was intentionally submitted to the Corps for inclusion in the administrative record showing that the drains and ditches provided only ephemeral and intermittent hydrologic connections. The submittal of that type of evidence is necessary to show the Corps that the required continuous surface connection does not exist and to ensure that the administrative record includes that evidence for any appeal.

The Memorandum is a good, practical first step to ensure adherence to the Supreme Court decisions. It is already making a difference for property owners. Hopefully, EPA and the Corps will take steps to codify these concepts into the applicable regulations.

What A Difference A Single Memo Makes!

The scope of jurisdiction over wetlands under the Clean Water Act has long been debated and litigated. The Supreme Court and other courts have issued various rulings explaining and limiting the scope of such jurisdiction. The Corps of Engineers (Corps) and the Environmental Protection Agency (EPA), though, have not always strictly adhered to those rulings and have sought to expand their jurisdictional reach. Now, the Trump Administration seems determined to force compliance with those rulings.

The Supreme Court’s ruling in Sackett v. EPA was a clear statement about the limits of jurisdiction over adjacent wetlands pursuant to the Clean Water Act. In adopting Justice Scalia’s opinion in its prior Rapanos decision, the Supreme Court severely limited the Corps’ jurisdiction, holding that the Clean Water Act extends to only those wetlands that are as a practical matter indistinguishable from waters of the United States. The Corps must 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. Sackett v. EPA, 143 S.Ct. 1322, 1341 (2023).

Despite the clarity of this holding, the Corps seems to have resisted its application, seemingly seeking to assert and/or hold onto jurisdiction as much as possible. An example is found in the Fifth Circuit’s decision in Lewis v. EPA, 88 F.4th 1073 (5th Cir. 2023). In that case, it was clear that the two tracts at issue were miles away from a relatively permanent water body and connected by roadside ditches, a culvert, and a non-relatively permanent tributary. Still, the Corps clung to jurisdiction, forcing the Fifth Circuit to remark on the Corps’ “unwillingness to concede its lack of regulatory jurisdiction” and to emphatically state “enough is enough.” Lewis, 88 F.4th at p. 1076 and 1080. Ultimately, the Fifth Circuit ruled there were no jurisdictional wetlands on the two tracts.

Against this backdrop, the Trump Administration came into office in January 2025. Within 60 days, the EPA and the Corps issued a joint Memorandum to the Field on March 12, 2025 (the Memorandum). [1] The Memorandum states that it is being issued to provide “guidance on the meaning of the ‘continuous surface connection’ requirement” and noting that prior guidance on the subject was “inconsistent with … the Sackett decision.” Further, the Memorandum represented the “agencies’ views on the proper implementation of the definition of ‘waters of the United States’” and will be used “when determining if a wetland has a ‘continuous surface connection’ to a requisite jurisdictional water under the Clean Water Act.”

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.

In short, “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).” Further, “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.” Finally, 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.” Emphasis supplied; punctuation omitted.

What a difference the Memorandum has made! One specific example highlights at least one positive outcome of its application. 

An approved jurisdictional determination (AJD) was issued in December 2024 for a 120-acre site. The northern part had been placed into agricultural use years ago, but the southern portion was wooded. Various drains and ditches crossed the property, carrying water to ditches adjoining the property and eventually to roadside ditches. The roadside ditches ultimately drained to a relatively permanent waterway about a mile away. Prior to the issuance of the AJD, evidence was presented to the Corps in the form of reports and photographs establishing that the various drains and ditches, both on the property and off the property (the roadside ditches) had, at best, only intermittent or ephemeral flow.

Nevertheless, the Corps, in the AJD, described the various drains and ditches as tributaries and asserted that these drains and ditches created a continuous surface connection to the relatively permanent waterway. In fact, the Corps deemed the drains and ditches themselves as relatively permanent waterways, some with seasonal flow. The Corps then asserted jurisdiction over all the wetlands on the tract.

After an administrative appeal was requested and a suit for judicial review was filed, the Corps decided to reconsider the AJD. Applying the concepts included in the Memorandum, the Corps issued a new AJD. This time, the AJD found that the ‘tributaries’ (i.e., the drains and ditches) were not relatively permanent waterways, had only ephemeral to intermittent flow, and so lacked the required continuous surface connection. As a result, the wetlands on the tract were all deemed non-jurisdictional. Based on the application of the Memorandum, the property went from one with jurisdictional wetlands (which require a permit and mitigation to develop) to one without any jurisdictional wetlands or waters at all.

Of course, the key is that evidence was intentionally submitted to the Corps for inclusion in the administrative record showing that the drains and ditches provided only ephemeral and intermittent hydrologic connections. The submittal of that type of evidence is necessary to show the Corps that the required continuous surface connection does not exist and to ensure that the administrative record includes that evidence for any appeal.

The Memorandum is a good, practical first step to ensure adherence to the Supreme Court decisions. It is already making a difference for property owners. Hopefully, EPA and the Corps will take steps to codify these concepts into the applicable regulations.

What A Difference A Single Memo Makes!

The scope of jurisdiction over wetlands under the Clean Water Act has long been debated and litigated. The Supreme Court and other courts have issued various rulings explaining and limiting the scope of such jurisdiction. The Corps of Engineers (Corps) and the Environmental Protection Agency (EPA), though, have not always strictly adhered to those rulings and have sought to expand their jurisdictional reach. Now, the Trump Administration seems determined to force compliance with those rulings.

The Supreme Court’s ruling in Sackett v. EPA was a clear statement about the limits of jurisdiction over adjacent wetlands pursuant to the Clean Water Act. In adopting Justice Scalia’s opinion in its prior Rapanos decision, the Supreme Court severely limited the Corps’ jurisdiction, holding that the Clean Water Act extends to only those wetlands that are as a practical matter indistinguishable from waters of the United States. The Corps must 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. Sackett v. EPA, 143 S.Ct. 1322, 1341 (2023).

Despite the clarity of this holding, the Corps seems to have resisted its application, seemingly seeking to assert and/or hold onto jurisdiction as much as possible. An example is found in the Fifth Circuit’s decision in Lewis v. EPA, 88 F.4th 1073 (5th Cir. 2023). In that case, it was clear that the two tracts at issue were miles away from a relatively permanent water body and connected by roadside ditches, a culvert, and a non-relatively permanent tributary. Still, the Corps clung to jurisdiction, forcing the Fifth Circuit to remark on the Corps’ “unwillingness to concede its lack of regulatory jurisdiction” and to emphatically state “enough is enough.” Lewis, 88 F.4th at p. 1076 and 1080. Ultimately, the Fifth Circuit ruled there were no jurisdictional wetlands on the two tracts.

Against this backdrop, the Trump Administration came into office in January 2025. Within 60 days, the EPA and the Corps issued a joint Memorandum to the Field on March 12, 2025 (the Memorandum). [1] The Memorandum states that it is being issued to provide “guidance on the meaning of the ‘continuous surface connection’ requirement” and noting that prior guidance on the subject was “inconsistent with … the Sackett decision.” Further, the Memorandum represented the “agencies’ views on the proper implementation of the definition of ‘waters of the United States’” and will be used “when determining if a wetland has a ‘continuous surface connection’ to a requisite jurisdictional water under the Clean Water Act.”

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.

In short, “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).” Further, “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.” Finally, 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.” Emphasis supplied; punctuation omitted.

What a difference the Memorandum has made! One specific example highlights at least one positive outcome of its application. 

An approved jurisdictional determination (AJD) was issued in December 2024 for a 120-acre site. The northern part had been placed into agricultural use years ago, but the southern portion was wooded. Various drains and ditches crossed the property, carrying water to ditches adjoining the property and eventually to roadside ditches. The roadside ditches ultimately drained to a relatively permanent waterway about a mile away. Prior to the issuance of the AJD, evidence was presented to the Corps in the form of reports and photographs establishing that the various drains and ditches, both on the property and off the property (the roadside ditches) had, at best, only intermittent or ephemeral flow.

Nevertheless, the Corps, in the AJD, described the various drains and ditches as tributaries and asserted that these drains and ditches created a continuous surface connection to the relatively permanent waterway. In fact, the Corps deemed the drains and ditches themselves as relatively permanent waterways, some with seasonal flow. The Corps then asserted jurisdiction over all the wetlands on the tract.

After an administrative appeal was requested and a suit for judicial review was filed, the Corps decided to reconsider the AJD. Applying the concepts included in the Memorandum, the Corps issued a new AJD. This time, the AJD found that the ‘tributaries’ (i.e., the drains and ditches) were not relatively permanent waterways, had only ephemeral to intermittent flow, and so lacked the required continuous surface connection. As a result, the wetlands on the tract were all deemed non-jurisdictional. Based on the application of the Memorandum, the property went from one with jurisdictional wetlands (which require a permit and mitigation to develop) to one without any jurisdictional wetlands or waters at all.

Of course, the key is that evidence was intentionally submitted to the Corps for inclusion in the administrative record showing that the drains and ditches provided only ephemeral and intermittent hydrologic connections. The submittal of that type of evidence is necessary to show the Corps that the required continuous surface connection does not exist and to ensure that the administrative record includes that evidence for any appeal.

The Memorandum is a good, practical first step to ensure adherence to the Supreme Court decisions. It is already making a difference for property owners. Hopefully, EPA and the Corps will take steps to codify these concepts into the applicable regulations.

What A Difference A Single Memo Makes!

The scope of jurisdiction over wetlands under the Clean Water Act has long been debated and litigated. The Supreme Court and other courts have issued various rulings explaining and limiting the scope of such jurisdiction. The Corps of Engineers (Corps) and the Environmental Protection Agency (EPA), though, have not always strictly adhered to those rulings and have sought to expand their jurisdictional reach. Now, the Trump Administration seems determined to force compliance with those rulings.

The Supreme Court’s ruling in Sackett v. EPA was a clear statement about the limits of jurisdiction over adjacent wetlands pursuant to the Clean Water Act. In adopting Justice Scalia’s opinion in its prior Rapanos decision, the Supreme Court severely limited the Corps’ jurisdiction, holding that the Clean Water Act extends to only those wetlands that are as a practical matter indistinguishable from waters of the United States. The Corps must 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. Sackett v. EPA, 143 S.Ct. 1322, 1341 (2023).

Despite the clarity of this holding, the Corps seems to have resisted its application, seemingly seeking to assert and/or hold onto jurisdiction as much as possible. An example is found in the Fifth Circuit’s decision in Lewis v. EPA, 88 F.4th 1073 (5th Cir. 2023). In that case, it was clear that the two tracts at issue were miles away from a relatively permanent water body and connected by roadside ditches, a culvert, and a non-relatively permanent tributary. Still, the Corps clung to jurisdiction, forcing the Fifth Circuit to remark on the Corps’ “unwillingness to concede its lack of regulatory jurisdiction” and to emphatically state “enough is enough.” Lewis, 88 F.4th at p. 1076 and 1080. Ultimately, the Fifth Circuit ruled there were no jurisdictional wetlands on the two tracts.

Against this backdrop, the Trump Administration came into office in January 2025. Within 60 days, the EPA and the Corps issued a joint Memorandum to the Field on March 12, 2025 (the Memorandum). [1] The Memorandum states that it is being issued to provide “guidance on the meaning of the ‘continuous surface connection’ requirement” and noting that prior guidance on the subject was “inconsistent with … the Sackett decision.” Further, the Memorandum represented the “agencies’ views on the proper implementation of the definition of ‘waters of the United States’” and will be used “when determining if a wetland has a ‘continuous surface connection’ to a requisite jurisdictional water under the Clean Water Act.”

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.

In short, “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).” Further, “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.” Finally, 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.” Emphasis supplied; punctuation omitted.

What a difference the Memorandum has made! One specific example highlights at least one positive outcome of its application. 

An approved jurisdictional determination (AJD) was issued in December 2024 for a 120-acre site. The northern part had been placed into agricultural use years ago, but the southern portion was wooded. Various drains and ditches crossed the property, carrying water to ditches adjoining the property and eventually to roadside ditches. The roadside ditches ultimately drained to a relatively permanent waterway about a mile away. Prior to the issuance of the AJD, evidence was presented to the Corps in the form of reports and photographs establishing that the various drains and ditches, both on the property and off the property (the roadside ditches) had, at best, only intermittent or ephemeral flow.

Nevertheless, the Corps, in the AJD, described the various drains and ditches as tributaries and asserted that these drains and ditches created a continuous surface connection to the relatively permanent waterway. In fact, the Corps deemed the drains and ditches themselves as relatively permanent waterways, some with seasonal flow. The Corps then asserted jurisdiction over all the wetlands on the tract.

After an administrative appeal was requested and a suit for judicial review was filed, the Corps decided to reconsider the AJD. Applying the concepts included in the Memorandum, the Corps issued a new AJD. This time, the AJD found that the ‘tributaries’ (i.e., the drains and ditches) were not relatively permanent waterways, had only ephemeral to intermittent flow, and so lacked the required continuous surface connection. As a result, the wetlands on the tract were all deemed non-jurisdictional. Based on the application of the Memorandum, the property went from one with jurisdictional wetlands (which require a permit and mitigation to develop) to one without any jurisdictional wetlands or waters at all.

Of course, the key is that evidence was intentionally submitted to the Corps for inclusion in the administrative record showing that the drains and ditches provided only ephemeral and intermittent hydrologic connections. The submittal of that type of evidence is necessary to show the Corps that the required continuous surface connection does not exist and to ensure that the administrative record includes that evidence for any appeal.

The Memorandum is a good, practical first step to ensure adherence to the Supreme Court decisions. It is already making a difference for property owners. Hopefully, EPA and the Corps will take steps to codify these concepts into the applicable regulations.

What A Difference A Single Memo Makes!

The scope of jurisdiction over wetlands under the Clean Water Act has long been debated and litigated. The Supreme Court and other courts have issued various rulings explaining and limiting the scope of such jurisdiction. The Corps of Engineers (Corps) and the Environmental Protection Agency (EPA), though, have not always strictly adhered to those rulings and have sought to expand their jurisdictional reach. Now, the Trump Administration seems determined to force compliance with those rulings.

The Supreme Court’s ruling in Sackett v. EPA was a clear statement about the limits of jurisdiction over adjacent wetlands pursuant to the Clean Water Act. In adopting Justice Scalia’s opinion in its prior Rapanos decision, the Supreme Court severely limited the Corps’ jurisdiction, holding that the Clean Water Act extends to only those wetlands that are as a practical matter indistinguishable from waters of the United States. The Corps must 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. Sackett v. EPA, 143 S.Ct. 1322, 1341 (2023).

Despite the clarity of this holding, the Corps seems to have resisted its application, seemingly seeking to assert and/or hold onto jurisdiction as much as possible. An example is found in the Fifth Circuit’s decision in Lewis v. EPA, 88 F.4th 1073 (5th Cir. 2023). In that case, it was clear that the two tracts at issue were miles away from a relatively permanent water body and connected by roadside ditches, a culvert, and a non-relatively permanent tributary. Still, the Corps clung to jurisdiction, forcing the Fifth Circuit to remark on the Corps’ “unwillingness to concede its lack of regulatory jurisdiction” and to emphatically state “enough is enough.” Lewis, 88 F.4th at p. 1076 and 1080. Ultimately, the Fifth Circuit ruled there were no jurisdictional wetlands on the two tracts.

Against this backdrop, the Trump Administration came into office in January 2025. Within 60 days, the EPA and the Corps issued a joint Memorandum to the Field on March 12, 2025 (the Memorandum). [1] The Memorandum states that it is being issued to provide “guidance on the meaning of the ‘continuous surface connection’ requirement” and noting that prior guidance on the subject was “inconsistent with … the Sackett decision.” Further, the Memorandum represented the “agencies’ views on the proper implementation of the definition of ‘waters of the United States’” and will be used “when determining if a wetland has a ‘continuous surface connection’ to a requisite jurisdictional water under the Clean Water Act.”

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.

In short, “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).” Further, “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.” Finally, 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.” Emphasis supplied; punctuation omitted.

What a difference the Memorandum has made! One specific example highlights at least one positive outcome of its application. 

An approved jurisdictional determination (AJD) was issued in December 2024 for a 120-acre site. The northern part had been placed into agricultural use years ago, but the southern portion was wooded. Various drains and ditches crossed the property, carrying water to ditches adjoining the property and eventually to roadside ditches. The roadside ditches ultimately drained to a relatively permanent waterway about a mile away. Prior to the issuance of the AJD, evidence was presented to the Corps in the form of reports and photographs establishing that the various drains and ditches, both on the property and off the property (the roadside ditches) had, at best, only intermittent or ephemeral flow.

Nevertheless, the Corps, in the AJD, described the various drains and ditches as tributaries and asserted that these drains and ditches created a continuous surface connection to the relatively permanent waterway. In fact, the Corps deemed the drains and ditches themselves as relatively permanent waterways, some with seasonal flow. The Corps then asserted jurisdiction over all the wetlands on the tract.

After an administrative appeal was requested and a suit for judicial review was filed, the Corps decided to reconsider the AJD. Applying the concepts included in the Memorandum, the Corps issued a new AJD. This time, the AJD found that the ‘tributaries’ (i.e., the drains and ditches) were not relatively permanent waterways, had only ephemeral to intermittent flow, and so lacked the required continuous surface connection. As a result, the wetlands on the tract were all deemed non-jurisdictional. Based on the application of the Memorandum, the property went from one with jurisdictional wetlands (which require a permit and mitigation to develop) to one without any jurisdictional wetlands or waters at all.

Of course, the key is that evidence was intentionally submitted to the Corps for inclusion in the administrative record showing that the drains and ditches provided only ephemeral and intermittent hydrologic connections. The submittal of that type of evidence is necessary to show the Corps that the required continuous surface connection does not exist and to ensure that the administrative record includes that evidence for any appeal.

The Memorandum is a good, practical first step to ensure adherence to the Supreme Court decisions. It is already making a difference for property owners. Hopefully, EPA and the Corps will take steps to codify these concepts into the applicable regulations.

What A Difference A Single Memo Makes!

The scope of jurisdiction over wetlands under the Clean Water Act has long been debated and litigated. The Supreme Court and other courts have issued various rulings explaining and limiting the scope of such jurisdiction. The Corps of Engineers (Corps) and the Environmental Protection Agency (EPA), though, have not always strictly adhered to those rulings and have sought to expand their jurisdictional reach. Now, the Trump Administration seems determined to force compliance with those rulings.

The Supreme Court’s ruling in Sackett v. EPA was a clear statement about the limits of jurisdiction over adjacent wetlands pursuant to the Clean Water Act. In adopting Justice Scalia’s opinion in its prior Rapanos decision, the Supreme Court severely limited the Corps’ jurisdiction, holding that the Clean Water Act extends to only those wetlands that are as a practical matter indistinguishable from waters of the United States. The Corps must 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. Sackett v. EPA, 143 S.Ct. 1322, 1341 (2023).

Despite the clarity of this holding, the Corps seems to have resisted its application, seemingly seeking to assert and/or hold onto jurisdiction as much as possible. An example is found in the Fifth Circuit’s decision in Lewis v. EPA, 88 F.4th 1073 (5th Cir. 2023). In that case, it was clear that the two tracts at issue were miles away from a relatively permanent water body and connected by roadside ditches, a culvert, and a non-relatively permanent tributary. Still, the Corps clung to jurisdiction, forcing the Fifth Circuit to remark on the Corps’ “unwillingness to concede its lack of regulatory jurisdiction” and to emphatically state “enough is enough.” Lewis, 88 F.4th at p. 1076 and 1080. Ultimately, the Fifth Circuit ruled there were no jurisdictional wetlands on the two tracts.

Against this backdrop, the Trump Administration came into office in January 2025. Within 60 days, the EPA and the Corps issued a joint Memorandum to the Field on March 12, 2025 (the Memorandum). [1] The Memorandum states that it is being issued to provide “guidance on the meaning of the ‘continuous surface connection’ requirement” and noting that prior guidance on the subject was “inconsistent with … the Sackett decision.” Further, the Memorandum represented the “agencies’ views on the proper implementation of the definition of ‘waters of the United States’” and will be used “when determining if a wetland has a ‘continuous surface connection’ to a requisite jurisdictional water under the Clean Water Act.”

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.

In short, “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).” Further, “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.” Finally, 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.” Emphasis supplied; punctuation omitted.

What a difference the Memorandum has made! One specific example highlights at least one positive outcome of its application. 

An approved jurisdictional determination (AJD) was issued in December 2024 for a 120-acre site. The northern part had been placed into agricultural use years ago, but the southern portion was wooded. Various drains and ditches crossed the property, carrying water to ditches adjoining the property and eventually to roadside ditches. The roadside ditches ultimately drained to a relatively permanent waterway about a mile away. Prior to the issuance of the AJD, evidence was presented to the Corps in the form of reports and photographs establishing that the various drains and ditches, both on the property and off the property (the roadside ditches) had, at best, only intermittent or ephemeral flow.

Nevertheless, the Corps, in the AJD, described the various drains and ditches as tributaries and asserted that these drains and ditches created a continuous surface connection to the relatively permanent waterway. In fact, the Corps deemed the drains and ditches themselves as relatively permanent waterways, some with seasonal flow. The Corps then asserted jurisdiction over all the wetlands on the tract.

After an administrative appeal was requested and a suit for judicial review was filed, the Corps decided to reconsider the AJD. Applying the concepts included in the Memorandum, the Corps issued a new AJD. This time, the AJD found that the ‘tributaries’ (i.e., the drains and ditches) were not relatively permanent waterways, had only ephemeral to intermittent flow, and so lacked the required continuous surface connection. As a result, the wetlands on the tract were all deemed non-jurisdictional. Based on the application of the Memorandum, the property went from one with jurisdictional wetlands (which require a permit and mitigation to develop) to one without any jurisdictional wetlands or waters at all.

Of course, the key is that evidence was intentionally submitted to the Corps for inclusion in the administrative record showing that the drains and ditches provided only ephemeral and intermittent hydrologic connections. The submittal of that type of evidence is necessary to show the Corps that the required continuous surface connection does not exist and to ensure that the administrative record includes that evidence for any appeal.

The Memorandum is a good, practical first step to ensure adherence to the Supreme Court decisions. It is already making a difference for property owners. Hopefully, EPA and the Corps will take steps to codify these concepts into the applicable regulations.