In March of this year, the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency issued new guidance concerning the proper implementation of the term “continuous surface connection” under the definition of the “Waters of the United States” in the Clean Water Act.  The guidance is expected to be an interim measure while the Trump Administration analyzes new regulations to be adopted pursuant to the administrative rulemaking procedures.

Consistent with the Supreme Court’s 2023 decision in Sackett v. Environmental Protection and a prior Supreme Court case, the guidance confirmed that the “Waters of the United States” include only those adjacent wetlands that have a continuous surface connection because they directly abut the requisite jurisdictional water.  The guidance rescinded any previous directive that assumed a discrete feature (like a ditch, swale or pipe) established a continuous surface connection.  The guidance states “…the wetland…must have a continuous surface connection to a requisite covered water making it difficult to determine where the water ends and the wetland begins.”

In August of this year, it was reported by Greenwire, through an anonymous source, that EPA is discussing a proposed new wetlands regulation that would require that “wetlands” would need to contain surface water throughout the “wet season” and also need to abut a waterbody that flows throughout the wet season.  True or not, it is expected that any new regulation will further liberalize the regulation of wetlands by the Federal government. State and local wetland regulations should not be impacted, but may cause some conservative states to reevaluate their regulations.