MEMORANDUM TO THE FIELD BETWEEN

THE U.S. DEPARTMENT OF THE ARMY, U.S. ARMY CORPS OF ENGINEERS

March 12, 2025

PURPOSE

This memorandum provides guidance to the U.S. Army Corps of Engineers and the U.S. Environmental
Protection Agency regarding the implementation of the definition of “waters of the United States”
under both regulatory regimes currently operative across the country: the “Revised Definition of
‘Waters of the United States,’” as amended by the final rule “Revised Definition of ‘Waters of the
United States’; Conforming” (the amended 2023 rule; 40 C.F.R. 120.2 and 33 C.F.R. 328.3) and the “pre-
2015 regulatory regime” 1 consistent with the Supreme Court’s decision in Sackett v. Environmental
Protection Agency, 598 U.S. 651 (2023). 2

This memorandum is being issued in response to requests for clarification on the implementation of
the Federal Water Pollution Control Act, also known as the Clean Water Act, with respect to adjacent
wetlands in light of the Supreme Court’s decision in Sackett v. Environmental Protection Agency.
Specifically, the preamble to the 2023 Rule (“Revised Definition of ‘Waters of the United States,’” 88 FR
3004 (January 18, 2023)) and the preamble to the conforming rule (“Revised Definition of ‘Waters of
the United States’; Conforming,” 88 FR 61964, September 8, 2023) did not include adequate direction
or guidance on the meaning of the “continuous surface connection” requirement, and the agencies’
case-specific policy memoranda issued post-Sackett neither provided national guidance on the topic
nor clear and transparent direction for the public or the agencies. The case-specific policy memoranda
also contain conclusions which are inconsistent with the discussion of “continuous surface connection”
as described in the pre-2015 regulatory regime guidance documents and the Sackett decision. In order
to provide national consistency and eliminate confusion about the scope of “adjacent wetlands,” and

1
The “pre-2015 regulatory regime” refers to the agencies’ definition of “waters of the United States” set forth in pre-2015
Corps and EPA regulations (the Corps’ 1986 regulations and the EPA’s 1988 regulations, inclusive of the exclusion for prior
converted cropland, which both agencies added in 1993), implemented consistent with relevant case law, including Solid
Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), and Rapanos v. United States,
547 U.S. 715 (2006). It also refers to longstanding practice, as informed by applicable guidance, including “Clean Water Act
Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States” (Dec. 2,
2008) (2008 Rapanos Guidance), available at https://www.epa.gov/sites/default/files/2016-
02/documents/cwa_jurisdiction_following_rapanos120208.pdf. Additionally, the agencies interpret the phrase “waters of
the United States” consistent with the Supreme Court’s decision in Sackett v. Environmental Protection Agency.
2
For more information about the operative definition of “waters of the United States” for specific geographic areas in light
of litigation, please visit https://www.epa.gov/wotus/definition-waters-united-states-rule-status-and-litigation-update.
specifically the phrase “continuous surface connection” as used in the Rapanos and Sackett decisions
across both currently operative regulatory regimes, we are providing the following direction. This will
provide for more effective and efficient approved jurisdictional determinations, permitting actions and
other relevant actions consistent with Sackett. 3

In addition, the agencies plan to issue a public notice imminently in the Federal Register to establish a
docket on “WOTUS Notice: The Final Response to SCOTUS,” outlining a process to gather
recommendations on the meaning of key terms in Sackett to inform future administrative actions that
will seek to conform the definition of “waters of the United States” to Supreme Court precedent.

This guidance represents the agencies’ views on the proper implementation of the definition of “waters
of the United States” and is effective immediately. The EPA and the Department of the Army will apply
this guidance when determining if a wetland has a “continuous surface connection” to a requisite
jurisdictional water under the Clean Water Act.

BACKGROUND

Sackett and Rapanos

While the U.S. Supreme Court has issued numerous key decisions interpreting the phrase “waters of
the United States,” the two cases that are of particular importance for purposes of this memorandum,
especially as they relate to the “continuous surface connection” requirement for adjacent wetlands, are
Sackett v. Environmental Protection Agency, 598 U.S. 651 (2023), and Rapanos v. United States, 547 U.S.
715 (2006).

On May 25, 2023, the Sackett Court “conclude[d] that the Rapanos plurality was correct” and rejected
Justice Kennedy’s “significant nexus” standard, calling it a “particularly implausible” “theory” and
stating that “the CWA never mentions the ‘significant nexus’ test, so the EPA has no statutory basis to
impose it.” Sackett, 598 U.S. at 680. As a result, the agencies can apply only the Rapanos plurality
standard as informed by Sackett in determining when adjacent wetlands are subject to CWA
jurisdiction. As explained by the plurality in Rapanos, this standard is also consistent with prior
Supreme Court precedent interpreting “waters of the United States,” including the Court’s opinion in
Riverside Bayview. See Rapanos, 547 U.S. at 734-35, 740-42, 746-48 (Scalia, J., plurality).

Sackett makes reference to the relationship between adjacent wetlands and covered waters on multiple
occasions. The Sackett Court clarified that:
In Rapanos, the plurality spelled out clearly when adjacent wetlands are part of covered waters.
It explained that “waters” may fairly be read to include only those wetlands that are “as a
practical matter indistinguishable from waters of the United States,” such that it is “difficult to
determine where the ‘water’ ends and the ‘wetland’ begins.” That occurs when wetlands have
“a continuous surface connection to bodies that are ‘waters of the United States’ in their own

3
The Clean Water Act and the EPA and Corps regulations, interpreted consistent with the Sackett decision, contain legally
binding requirements. This guidance does not substitute for those provisions or regulations, nor is it a regulation itself. Thus,
it does not impose legally binding requirements on the EPA, the Corps, Tribes, states or the regulated community.
2
 right, so that there is no clear demarcation between ‘waters’ and wetlands.” . . . We agree with
this formulation of when wetlands are part of “the waters of the United States.
Id. at 678 (internal citations omitted).

The Sackett Court also found that “[w]etlands that are separate from traditional navigable waters
cannot be considered part of those waters, even if they are located nearby,” id. at 678, and that
“‘adjacent’ cannot include wetlands that are not part of covered ‘waters,’” id. at 682. The Court also
recognized that in determining the jurisdictional status of wetlands, the Riverside Bayview Court
“need[ed] to focus so extensively on the adjacency of wetlands to covered waters” to adhere to the
proper interpretation of the Clean Water Act. Id. at 674.

This is why the plurality in Rapanos rejected the Corps’ practice of asserting jurisdiction over wetlands
adjacent to features that themselves were not “waters of the United States” in their own right based on
a hydrologic connection theory. The Rapanos plurality instead concluded:
[O]nly 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, and thus lack the
necessary connection to covered waters that we described as a “significant nexus” in
SWANCC . . . . Thus, establishing that wetlands . . . are covered by the Act requires two
findings: first, that the adjacent channel contains a “wate[r] 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.
Rapanos, 547 U.S. at 742 (Scalia, J., plurality) (emphasis in original).

Additionally, the plurality said that “adjacent” means “physically abutting,” and used “abutting” and
“adjacent” interchangeably. Id. at 748; see also id. at 742 (“Riverside Bayview rested upon the inherent
ambiguity in defining where water ends and abutting (“adjacent”) wetlands begin[.]”). Most
importantly, the plurality clarified that “the statutory definition [of ‘navigable waters’ at 33 U.S.C.
§1362(7)] can be read to include some wetlands – namely, those that directly ‘abut’ covered waters.”
Id. at 747, footnote 12 (emphasis in original).

2008 Rapanos Guidance in the Pre-2015 Regulatory Regime

Following Rapanos, on June 6, 2007, the agencies issued joint guidance entitled “Clean Water Act
Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States and Carabell v.
United States” to address the waters at issue in that decision. The guidance was reissued with minor
changes on December 2, 2008, and a review of that guidance reveals how the agencies interpreted the
Rapanos plurality’s “continuous surface connection” construct. “[O]nly those adjacent wetlands that
have a continuous surface connection because they directly abut the [relatively permanent] tributary
(e.g., they are not separated by uplands, a berm, dike, or similar feature) are considered jurisdictional
under the plurality standard.” 2008 Rapanos Guidance at 7, footnote 29.

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Additionally, the 2008 Rapanos Guidance applies the Rapanos plurality’s standard to assert jurisdiction
over “[w]etlands that directly abut” “[n]on-navigable tributaries of traditional navigable waters that
are relatively permanent where the tributaries typically flow year-round or have continuous flow at
least seasonally (e.g., typically three months).” Id. at 1.

The Corps’ pre-2015 Jurisdictional Determination Form Instructional Guidebook, which contained
instructions to aid field staff in completing the associated Approved Jurisdictional Determination Form
prior to Sackett, states “[t]he [Rapanos] decision provides two new analytical standards for
determining whether water bodies that are not traditional navigable waters (TNWs), including
wetlands adjacent to those non-TNWs, are subject to CWA jurisdiction: (1) if the water body is
relatively permanent, or if the water body is a wetland that directly abuts (e.g., the wetland is not
separated from the tributary by uplands, a berm, dike, or similar feature) a relatively permanent water
body (RPW), or (2) if a water body, in combination with all wetlands adjacent to that water body, has a
significant nexus with TNWs.” 4

With significant nexus having been struck down by the Court in Sackett, we are left to determine what
the pre-2015 regulatory regime’s approach to adjacency looked like without that evaluation. The
Corps’ pre-2015 regulatory regime provides clarity on this point in the previously used Rapanos
“Approved Jurisdictional Determination Form,” which states, “[a] wetland that is adjacent to but that
does not directly abut an RPW requires a significant nexus test.” 5 Removing the significant nexus
portion from that statement leaves the simple fact 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.

2023 Rule

On January 18, 2023, the agencies issued the 2023 Rule to revise the definition of “waters of the
United States.” The preamble to the 2023 Rule included limited guidance on the implementation of
“continuous surface connection,” and stated: 6
Under the relatively permanent standard for adjacent wetlands, wetlands meet the continuous
surface connection requirement if they physically abut, or touch, a relatively permanent
paragraph (a)(2) impoundment or a jurisdictional tributary when the jurisdictional tributary
meets the relatively permanent standard, or if the wetlands are connected to these waters by a
discrete feature like a non-jurisdictional ditch, swale, pipe, or culvert.
The agencies’ “discrete features” language 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.

4
U.S. ARMY CORPS OF ENGINEERS JURISDICTIONAL DETERMINATION FORM INSTRUCTIONAL GUIDEBOOK, 6 (May 30, 2007),
available at https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll11/id/2310.
5
U.S. ARMY CORPS OF ENGINEERS, APPROVED JURISDICTIONAL DETERMINATION FORM, 2, available at
https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll11/id/2314.
6
88 FR 3004, 3090 (Jan. 18, 2023).
4
Guidance on Wetlands with a Continuous Surface Connection

Under either the amended 2023 regulatory definition of “waters of the United States” or the pre-2015
regulatory regime consistent with Sackett, 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).” 2008 Rapanos Guidance at 7, footnote 29; see also 88 FR 3090 (Jan. 18, 2023)
(“wetlands meet the continuous surface connection requirement if they physically abut, or touch, a
[requisite jurisdictional water]”). Additionally, pursuant to the Rapanos plurality, “[w]etlands 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. Rapanos, 547 U.S. at 742 (Scalia, J.,
plurality). The plurality was even more clear that the CWA definition of “navigable waters” includes
“some wetlands – namely, those that directly ‘abut’ covered waters.” Id. at 747, footnote 12 (Scalia, J.,
plurality) (emphasis in original).

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.7 Therefore, any components of guidance or
training materials that assumed a discrete feature established a continuous surface connection are
rescinded. 8

In summary, the Supreme Court in Sackett provided a clear two-part test for determining CWA
jurisdiction over adjacent wetlands. First, the adjacent body of water must be a “water of the United
States,” which generally means traditional navigable waters, or a relatively permanent body of water
connected to a traditional navigable water. Second, the wetland, assuming it satisfies the agencies’
longstanding regulatory definition of “wetlands” at 33 C.F.R. 328.3 and 40 C.F.R. 120.2, must have a
continuous surface connection to a requisite covered water making it difficult to determine where the
water ends and wetland begins. The Sackett Court recognized that there may be some instances where
that line drawing problem is difficult, such as during periods of drought or low tide or in those

7
The same is true for any reliance on United States v. Cundiff, 555 F.3d 200 (6th Cir. 2009) to evaluate wetlands that do not
directly abut an otherwise covered water. Such reliance could create conflict with Sackett’s two-part test for jurisdiction over
adjacent wetlands.
8
This recission encompasses the relevant portions of the agencies’ “September 24, 2024, Presentation: Updates on ‘Waters
of the United States’” (“[w]etlands also have a continuous surface connection when they are connected to a jurisdictional
water by a discrete feature like a non-jurisdictional ditch, swale, pipe, or culvert…”). Id. at slide 47, available at
https://www.epa.gov/system/files/documents/2024-09/wotus-overview_9-24-24_508c.pdf, and the agencies’
“Presentation – November 15, 2023, Updates for Tribes and States on ‘Waters of the United States’” (“[w]etlands also have
a continuous surface connection when they are connected to a jurisdictional water by a discrete feature like a non-
jurisdictional ditch, swale, pipe, or culvert…”). Id. at slide 48, available at
https://www.epa.gov/system/files/documents/2023-11/wotus-overview_tribes-and-states_11-15-23_508.pdf. This directive
also serves to rescind the following case-specific memoranda to the Field implementing the pre-2015 regulatory regime
consistent with Sackett that apply the same “discrete features” test as the two trainings listed herein: “Memorandum on
NWK-2022-00809,” “Memorandum on SWG-2023-00284,” “Memorandum on LRB-2023-00451” and “Memorandum on
NWK-2024-00392,” as well as the following case-specific memoranda addressing continuous surface connection under the
amended 2023 rule: “Memorandum on NWP-2023-602,” “Memorandum on NAP-2023-01223,” “Memorandum on POH-
2023-00187” and “Memorandum on MVR-2023-0828.”
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instances where there may be temporary interruptions in surface connection. The agencies will work
to resolve these scenarios on a case-by-case basis and provide further clarity when appropriate to
guide future implementation.

The agencies will use a forthcoming Federal Register notice and recommendations docket on “WOTUS
Notice: The Final Response to SCOTUS” as well as other stakeholder engagement opportunities to
identify areas of implementation challenges to be later addressed either through additional guidance
or rulemaking.

Dated: March 12, 2025

Robyn S. Colosimo, P.E.

Digitally signed by
BENITA BENITA BEST-WONG
BEST-WONG 16:11:05 -04'00'
Date: 2025.03.12

Benita Best-Wong,
Deputy Assistant Administrator performing the non-exclusive duties and functions
of the Assistant Administrator for Water, U.S. Environmental Protection Agency