EPA Intends to Revise Definition of Waters of the United States

On March 12, 2025, the U.S. Environmental Protection Agency (EPA) announced their intent to revise the definition of Waters of the United States (WOTUS) – Administrator Zeldin Announces EPA Will Revise Waters of the United States Rule | US EPA. This proposed effort includes three action items noted below.

Continuous Surface Connection Guidance

On March 12, 2025, a memorandum to the field between the U.S. Department of the Army, U.S. Army Corps of Engineers, and EPA was issued to provide guidance relative to proper implementation of “Continuous Surface Connection” under the definition of WOTUS – Memorandum to the Field Between the U.S. Department of the Army, U.S. Army Corp of Engineers and the U.S. Environmental Protection Agency Concerning the Proper Implementation of “Continuous Surface Connection” Under the Definition of “Waters of the United States” Under the Clean Water Act. Of note, the guidance memo indicates on page 5 of 6 that “… any components of guidance or training materials that assumed a discrete feature established a continuous surface connection are rescinded.”  Furthermore, approved jurisdictional determination “elevation memos” issued by EPA headquarters that relied on continuous surface connection have been rescinded based on the guidance memo issued March 12, 2025.

Listening Sessions and Recommendations Docket

EPA issued a pre-publication version of a Federal Register notice announcing opportunity for stakeholders to provide feedback on the following:

1. The scope of “relatively permanent” waters and to what features this phrase applies;
2. The scope of “continuous surface connection” and to which features this phrase applies; and,
3. The scope of jurisdictional ditches.

Stakeholders will be able to provide feedback during listening sessions or by providing written recommendations to a recommendations docket. When the notice is published in the Federal Register, registration instructions and dates will be posted at: https://www.epa.gov/wotus/public-outreach-and-stakeholder-engagement-activities.  EPA notes that they do not intend to provide a response to comments and recommendations. The pre-publication version of the notice is available here: WOTUS Notice: The Final Response to SCOTUS; Establishment of a Public Docket; Request for Recommendations.

Notice of Intent to Undertake a Rulemaking Process

In their March 12, 2025, press release (link provided above), EPA announced their intent to undertake a rulemaking process to revise the 2023 definition of WOTUS “with a focus on clarity, simplicity and improvements that will stand the test of time.”  Concurrent with this rulemaking process, EPA will provide guidance to states that are implementing the pre-2015 definition of WOTUS.

What’s Next?

The continuous surface connection guidance became effective immediately on March 12, 2025; therefore, the guidance will affect permit applications and jurisdictional determination requests currently under review. However, project proponents may request reconsideration of permit determinations (if approved impacts have not been completed) and jurisdictional determination requests based on the guidance. Projects proponents are also encouraged to participate in the forthcoming listening sessions and should monitor the rule making process to understand how forthcoming changes may impact current and planned projects.

We will continue to monitor these WOTUS activities and provide updates as additional information becomes available. CEC team members with extensive WOTUS experience are available to answer questions or assist you with projects that may be affected by these recent developments.