Bill Newlon

This article was written by Kleinfelder Senior Environmental Scientist Bill Newlon
(Mount Dora, FL)

Understanding the New EPA Guidance on Field Implementation of a Continuous Surface Connection

On March 12, 2025, the U.S. Environmental Protection Agency (EPA) issued a memorandum (the memo) to provide guidance that would create national consistency and eliminate confusion about the meaning of a “continuous surface connection” as it relates to jurisdictional determinations of adjacent wetlands under the Clean Water Act (CWA).

Essentially, the memo explains how the EPA and U.S. Army Corps of Engineers will decide which wetlands are protected under the CWA and sets the rules for what counts as federally protected waters — which helps shape environmental policies and land use decisions nationwide.

What Do These Terms Mean?

Adjacent wetlands generally refer to wetlands (like swamps or marshes) that abut rivers, streams, lakes, or other bodies of water which are Waters of the U.S. (WOTUS).

A continuous surface connection means a wetland abuts, or in other words is physically contiguous with a nearby water body in such a way that water flows between them — even if only at certain times of the year, such as during rainy seasons.

What is the Confusion?

The phrase “continuous surface connection” has been utilized in association with key decisions by the Supreme Court of the U.S. (SCOTUS) in interpreting Waters of the U.S. (WOTUS) — the most important of which include Rapanos v. United States (Rapanos) in 2006 and Sackett v. Environmental Protection Agency (Sackett) in 2023.

The earlier Rapanos ruling established the “significant nexus” test. This allowed for the assertion of jurisdiction over adjacent wetlands of traditional navigable waters (TNWs, or water bodies that people use for transportation) or non-navigable (i.e., smaller water bodies that don’t support transportation), relatively permanent tributaries to TNWs, including those without a continuous surface connection if they had a “significant nexus” —in other words, if they were determined to significantly affect the chemical, physical, and/or biological integrity of the downstream TNWs.

The subsequent Sackett ruling rejected the “significant nexus” test and narrowed the definition of adjacent wetlands to those with a continuous surface (water) connection to WOTUS so that they are indistinguishable from those WOTUS.

What’s the Current Situation?

Following the publication of the Amended 2023 Rule (which refers to changes made to conform with the Sackett ruling), lawsuits were filed in 26 states challenging its validity. The ongoing litigation resulted in the use of two regulatory regimes within the U.S. under which jurisdiction of WOTUS is being determined:

The Amended 2023 Rule: As of September 23, 2024, there are 24 states plus the District of Columbia and the U.S. territories that abide with this rule.

The Pre-2015 Regulatory Regime: This refers to the way WOTUS was defined and regulated before the 2015 Clean Water Rule, and there are 26 states that abide with this pre-2015 regulatory regime and Sackett decision.

Why was Clarification Needed?

Neither the Amended 2023 Rule nor the Pre-2015 Regulatory Regime provide adequate direction related to the meaning of a “continuous surface connection,” specifically as it relates to adjacent wetlands. As such, the EPA issued the March 12, 2025 guidance memo to align interpretation of adjacency by the EPA and U.S. Army Corps of Engineers with Sackett.

The memo indicates wetlands must abut covered waters to be considered adjacent and specifies that wetlands which are physically removed from, and not directly abutting, covered waters, do not have a “continuous surface connection” under Sackett. Thus, wetlands where there is a “continuous surface connection” via what are identified as “discrete features” (pipes, culverts, non-jurisdictional ditches, and swales). For example, a wetland which is connected to covered waters through a culvert under a road or pipe through a berm are no longer jurisdictional.

In instances where determination and the implementation of a “continuous surface connection” is ambiguous, such as during drought, low tide, or where there may be temporary interruptions in the surface connection, the agencies will resolve these scenarios on a case-by-case basis and provide further clarity when appropriate to guide future implementation.

Is Further Guidance Needed?

Some areas where further guidance might be needed regarding implementation of a “continuous surface connection” could include connections to WOTUS via ditches and ephemeral streams.

Based on the definition of non-jurisdictional ditches in the Amended 2023 Rule, clarification will likely be needed for wetlands that do not directly abut covered waters, but which are connected to relatively permanent tributaries or other wetlands which do directly abut covered waters via ditching that is upland-cut but drains wetlands or is relatively permanent (contains an ordinary high water mark).

Additionally, it appears that ephemeral streams (not relatively permanent because they do not flow year-round or have continuous flow at least seasonally) would not be interpreted as covered waters under Sackett. Thus, it would appear they would not be considered jurisdictional WOTUS in and of themselves, or a “continuous surface connection” that would maintain jurisdiction over adjacent wetlands. Findings associated with Approved Jurisdictional Determinations in some states have indicated this; however, it remains to be seen if this will be implemented nationwide.

Conclusion

While the March 12, 2025 memo is solely for informative purposes and does not represent a final determination by the agencies, application of the guidance by the agencies is intended to be effective immediately.

Final determination will be forthcoming in the form of a Federal Register publication and a notice with a 30-day recommendations docket for public input to identify challenges with implementation and address them as needed through additional guidance or rulemaking.