On March 12, 2025, the U.S. Environmental Protection Agency and Department of the Army announced a joint memorandum issuing guidance to field staff on implementation of “continuous surface connection” consistent with the U.S. Supreme Court’s May 25, 2023, decision in the case of Sackett v. Environmental Protection Agency. The agencies also announced a Federal Register notice publicizing a series of six listening sessions and a 30-day recommendations docket to solicit feedback on key aspects of the definition of “waters of the United States.”
Read the joint guidance on continuous surface connection (pdf).
Read the Federal Register notice (pdf).
Questions can be directed to wotus-outreach@epa.gov
Jurisdictional Determinations
An approved jurisdictional determination ("AJD") is a document provided by the Corps stating the presence or absence of “waters of the United States” on a parcel or a written statement and map identifying the limits of “waters of the United States” on a parcel. See 33 C.F.R. § 331.2. Under existing Corps’ policy, AJDs are generally valid for five years unless new information warrants revision prior to the expiration date. See U.S. Army Corps of Engineers, Regulatory Guidance Letter No. 05–02, § 1(a), p. 1 (June 2005) (Regulatory Guidance Letter (RGL) 05–02).
As a general matter, the agencies’ actions are governed by the definition of "waters of the United States" that is in effect at the time the Corps completes an AJD, not by the date of the request for an AJD. AJDs completed after signature of the joint agency memorandum on continuous surface connection will be finalized consistent with that guidance. However, the guidance does not invalidate AJDs issued prior to the signature of the joint memorandum. Likewise, AJDs completed under the 2020 Navigable Waters Protection Rule (NWPR) prior to the U.S. District Court for the District of Arizona’s decision in Pascua Yaqui Tribe v. U.S. Environmental Protection Agency to vacate the 2020 NWPR (D. Ariz. August 30, 2021) and not associated with a permit action (also known as "stand-alone" AJDs under RGL 16-01) will not be reopened until their expiration date, unless one of the criteria for revision is met under RGL 05-02. AJDs completed under the January 2023 Rule, the Amended 2023 Rule, or the pre-2015 regime and not associated with a permit action will also not be reopened until their expiration date, unless one of the criteria for revision is met under RGL 05-02. Previously issued AJDs that have not expired could also be reopened if the recipient of such an AJD requests that a new AJD be provided pursuant to the current regulatory regime (i.e., the January 2023 Rule, as amended by the conforming rule announced on August 29, 2023, or the pre-2015 regulatory regime implemented consistent with Sackett).
In these cases, the Corps will honor such requests. Note that a recipient of a NWPR AJD who intends to discharge into waters identified as non-jurisdictional under a NWPR AJD, but which may be jurisdictional under the current regulatory regime, may want to discuss their options with the Corps. Corps permit decisions may be modified, suspended, or revoked per 33 C.F.R. § 325.7 where the regulatory criteria are met. Permit decisions made prior to the Arizona court's decision that relied on a NWPR AJD will not be reconsidered in response to the NWPR vacatur. However, due to the vacatur, the Corps will not rely on a NWPR AJD in making a new permit decision. Therefore, for any currently pending permit action that relies on a NWPR AJD, or for any future permit application received that intends to rely on a NWPR AJD for purposes of permit processing, the Corps will discuss with the applicant, as detailed in RGL 16-01, whether the applicant would like to receive a new AJD completed under the current regulatory regime to continue their permit processing or whether the applicant would like to proceed in reliance on a preliminary JD or no JD whatsoever.
Permit decisions that relied on an AJD completed under the January 2023 Rule or the pre-2015 regulatory regime will also not be reconsidered. The Corps may rely on an AJD completed prior to the March 12, 2025 joint agency memorandum on continuous surface connection and issued under the January 2023 Rule, the Amended 2023 Rule, or the pre-2015 regulatory regime to support pending or new permit decisions where the requestor wishes to do so. However, in these circumstances, the Corps will discuss with the applicant, as detailed in RGL 16-01, whether the applicant would like to receive a new AJD completed under the current regulatory regime to continue their permit processing or whether the applicant would like to proceed in reliance on the existing AJD, a preliminary JD, or no JD whatsoever.
Information about Clean Water Act approved jurisdictional determinations that have been finalized can be found on EPA's AJD webpage or on the Corps' JD public interface.