April 2026 Vol. 81 No. 4
Features
Trump EPA wants to remove restraints on infrastructure permitting
STEPHEN BARLAS, WASHINGTON D.C. EDITOR
The Trump administration is clearing the way for quicker approval of infrastructure projects by states and local governments. The Environmental Protection Agency (EPA) has published a proposed rule which sweeps away some of the restrictions the Biden administration had implemented with regards to Section 401 of the Clean Water Act (CWA). That regulation gives states the authority to stop an infrastructure project if there is evidence the construction would degrade the water quality of a wetland or covered body of water categorized under the CWA as “Waters of the U.S. (WOTUS).”
At the same time, the Army Corps of Engineers reissued nationwide permits (NWP), which companies can obtain under Section 404 of the CWA when a construction project involves limited discharge of dredged or fill material into the WOTUS. Key NWPs include:
- Number 12: Oil or Natural Gas Pipeline Activities
- Number 57: Electric Utility Line and Telecommunications Activities
- Number 58: Utility Line Activities for Water and Other Substances
The Biden administration had considered tightening requirements for many NWPs. But the Trump administration made only what appear to be minimal changes.
In addition, the Trump administration is narrowing the need for permits under both programs by refining WOTUS to include fewer bodies of water. That effort is a response to a Biden final rule on WOTUS in 2023 that was meant to comply with a Supreme Court decision Sackett v. Environmental Protection Agency. Infrastructure industries complained that the Biden rule did not comply with the court’s decision.
SECTION 401 CHANGES
The Section 401 changes proposed by the EPA also represent significant changes from Biden rules. The EPA’s action provoked an outcry from some groups and states including New York, which has been in the vanguard of using water quality concerns to stop projects such as the proposed Constitution Pipeline.
In announcing the proposed rule, the EPA explained it was correcting “a fundamentally flawed 2023 Biden EPA rule that allowed delay tactics and protracted certification timelines inconsistent with the Clean Water Act.” Administrator Lee Zeldin said, “Today’s proposal restores the Clean Water Act to its intended purpose, protecting America’s water quality and ending the weaponization of the law that has been obstructing infrastructure and energy projects vital to our nation’s economy.”
A key irritant for the infrastructure industry was the Biden extension of state scrutiny beyond the “activity” at issue to any water quality effects the construction might have somewhere downstream. “As a result, Section 401 review has extended well beyond discrete discharges to encompass broader project‑level impacts,” the EPA said. The EPA’s proposed rule narrows the definition of “discharge,” to one from a “point source.”
That and other proposed changes do not sit well with Amanda Lefton, New York’s commissioner of the Department of Environmental Conservation (DEC).
In her comments to the agency, she wrote: “By restricting the scope of WQC (water quality certification) review to point source discharges alone, EPA attempts to prevent certifying authorities from considering a myriad of potential water-quality impacts related to a waterbody's physical, chemical, biological and hydrological characteristics on account of thermal discharges, placement of fill, resuspension of sediment and non-point source discharges, such as erosion and runoff, which may not originate from a point source but nevertheless could be inextricably linked to the project activity itself.
“The foreseeable outcome, again, is increased pollutants in waterbodies with particular harm to smaller waterbodies and wetlands. In fact, this unduly narrow limitation of the definition of ‘discharge’ may take certain projects outside the scope of state Section 401 review altogether.”
But infrastructure industries support the changes. Joan Dreskin, vice president and general counsel, Interstate Natural Gas Association of America (INGAA), told the EPA, its “analysis and conclusions are sound, legally durable and would better align the agency’s regulations with the text, structure and legislative history of Section 401.”
404 MODIFICATIONS
Like Section 401, Section 404, regulated by the Army Corps of Engineers, also grants states the authority to stop or delay a project by denying a permit because of concerns about dredged and filled material. The nationwide permits (NWP) at issue each include a discrete list of “notes” which a permit applicant must adhere to.
The Corp’s 404 final rule, which took effect March 15, 2026, nibbles around the edge of some important NWPs, each of which dictates such things as requirements on preconstruction notification (PCN) and a district engineer’s determination on project compliance with the National Historic Preservation Act, for example.
NWP12 and 58 covering pipelines and utilities, including new carbon dioxide pipelines, have been controversial since the Biden administration opened the door to comments on the next reissuance of all NWPs, which the Trump administration has now finalized.
The Corps received around 200 individual comment letters on NWP12 for gas pipelines when it opened a docket in the spring of 2025. Many of these comments called for elimination of NWP12: Oil or Natural Gas Pipeline Activities. Number 58: Utility Line Activities for Water and Other Substances, was also under attack. For example, Erin Doran, senior staff attorney, Food & Water Watch, wrote to the Corps in July 2025 complaining about “…the Corps’ abject failure to consider the potential for NWP58 to be used to authorize massive carbon dioxide (CO2) pipelines without any meaningful environmental or public interest review.”
A coalition of environmental groups singled out the proposed Summit, Navigator and Wolf carbon dioxide pipeline projects, whose sponsors were already using NWP58 or would be doing so. The Aug. 18, 2023, letter to the Corps urged it “to require the developers of these pipelines to apply for individual permits; and prepare an environmental impact statement for each project.”
Navigator CO2 Ventures canceled its $3.5-billion "Heartland Greenway" project on Oct. 20, 2023, due to "unpredictable" regulatory processes. The 1,300-mile pipeline aimed to capture 15 million metric tons, annually, from over 30 Midwest ethanol plants across five states for underground storage in Illinois.
The Corps ignored pressure to make significant changes to either NWP12 or NWP58. Minor changes included modifying existing notes to require new information be sent to both the National Ocean Service and U.S. Coast Guard. Of more significance in the case of NWP12, the Corps resisted pressure to restore a PCN for mechanized land clearing, which had been eliminated in 2021 when the Trump administration last reissued NWPs.
Again, permits under both Section 401 and 404 are only required where construction touches WOTUS. In its proposed changes to WOTUS, the Trump EPA and Army Corps want, among other things, to delete the interstate waters category and delete “intrastate” lakes and ponds. There will be a new exclusion for groundwater.
But the proposal stimulated thousands of comments, many of them unfavorable. “This proposed rule, if finalized, would unlawfully restrict the protections afforded by the Clean Water Act to numerous water bodies and undermine public health and safety as a result,” wrote Jon Devine, director of Freshwater Ecosystems, Natural Resources Defense Council.
“The agencies propose to eliminate interstate waters as an independent category of protected waters, such that an interstate stream or lake would not be automatically protected, nor would impoundments of, tributaries to, or wetlands adjacent to, such waters. The agencies propose that, if there is a less than relatively permanent tributary segment in a watershed, features upstream of that segment would generally no longer qualify as tributaries.”
Comments