Trump EPA Wants to Remove Restraints on Infrastructure Permitting
S. BARLAS, Contributing Editor, Washington, D.C. (U.S.)
(P&GJ) — U.S. President Trump’s administration is clearing the way for quicker approval of infrastructure projects by states and local governments. The U.S. Environmental Protection Agency (EPA) has published a proposed rule that sweeps away some of the restrictions the Biden administration had implemented, with regard 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:
- NWP 12: Oil or natural gas pipeline activities
- NWP 57: Electric utility line and telecommunications activities
- NWP 58: Utility line activities for water and other substances
The Biden administration had considered tightening requirements for many NWPs, while the Trump administration has made what appear to be only 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 Supreme Court decision Sackett v. Environmental Protection Agency. Infrastructure industries complained that the Biden rule did not comply with the court’s decision.
The Section 401 changes proposed by the EPA also represent significant changes to the 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 hand 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.”
These 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.”
However, infrastructure industries support the changes. Joan Dreskin, VP 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.”
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 due to concerns about dredged and filled material. The NWPs at issue each include a discrete list of “notes” to which a permit applicant must adhere.
The Corps’ 404 final rule, which took effect on 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.
NWP 12 and NWP 58—covering pipelines and utilities, including new carbon dioxide (CO₂) 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 some 200 individual comment letters on NWP 12 for gas pipelines when it opened a docket in the spring of 2025. Many of these comments called for the elimination of NWP 12 (Oil or natural gas pipeline activities).
NWP 58 (Utility line activities for water and other substances) was also under attack. For example, Senior Staff Attorney Erin Doran, Food & Water Watch, wrote to the Corps in July 2025 complaining about “…the Corps’ abject failure to consider the potential for NWP 58 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 CO₂ pipeline projects whose sponsors were already or would be using NWP 58. An Aug. 18, 2023 letter to the Corps urged it “to require the developers of these pipelines to apply for individual permits; and (b) prepare an environmental impact statement for each project.”
Navigator CO₂ Ventures canceled its $3.5-B "Heartland Greenway" project on Oct. 20, 2023, due to "unpredictable" regulatory processes. The 1,300-mi pipeline aimed to capture 15 metric MMtpy of CO₂ from more than 30 Midwest ethanol plants across five states for underground storage in Illinois.
The Corps ignored pressure to make significant changes to both NWP 12 and NWP 58. Minor changes included modifying existing notes to require that new information be sent to both the National Ocean Service and U.S. Coast Guard. Of more significance in the case of NWP 12, the Corps resisted pressure to restore a PCN for mechanized land clearing that 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 would also be a new exclusion for groundwater.
However, 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.”