Corps Permitting Developments Under a Second Trump Term
Just two months into President Trump’s second term, project applicants are navigating a series of changes to U.S. Army Corps of Engineers’ (Corps) Clean Water Act (CWA) Section 404 permitting. Upon his inauguration, President Trump issued a suite of Executive Orders (EOs) targeted at permit streamlining, particularly for traditional energy projects, with multiple EO sections focused on the CWA 404 permitting program that cuts across the permitting needs of many industry sectors. Section 4(a) of Trump’s EO entitled “Declaring a National Energy Emergency” specifically directs the Corps to identify within 30 days permit actions that would facilitate the Nation’s energy supply for expedited permitting under the nationwide permit program and emergency provisions of the CWA. In support, Section 5(d) of the EO “Unleashing American Energy”, titled Unleashing Energy Dominance through Efficient Permitting, directs the Secretary of Defense (and peer resource agencies) to “undertake all available efforts to eliminate all delays within their respective permitting processes, including through, but not limited to, the use of general permitting and permit by rule,” i.e., the general permit approach of the nationwide permit (NWP) program.
What have we seen thus far and what can we expect to come in the next few months? This alert touches on a few of the notable developments associated with energy-related EOs issued by the Trump administration during the past 30 days and notes on what may be to come, including:
- What could happen to the definition of WOTUS?
- How the Corps may use emergency provisions under the CWA to expedite energy projects?
- How reissuance of nationwide permits could benefit this administration’s energy agenda?
WOTUS… Again
Importantly, and as a shock to no one, a shift in the federal jurisdictional scope of “Waters of the U.S.” (WOTUS) is on the horizon. On March 14, 2025, EPA Administrator Lee Zeldin announced the availability of a guidance memorandum providing clarity on how the U.S. Supreme Court’s (SCOTUS) decision in Sackett v. EPA (Sackett) should be applied in determining whether a given wetland should be considered jurisdictional (Guidance). In Sackett, SCOTUS held, among other things, that an adjacent wetland will only be considered a WOTUS where there is a “continuous surface connection” to a jurisdictional WOTUS. The Guidance rescinds all previous guidance and training materials that assume a “discrete feature” (e.g., non-jurisdictional ditch, swale, pipe, or culvert) will establish a continuous surface connection, including several memos to the field that were removed from the Corps’ jurisdictional resource webpage. Citing to Sackett, the Guidance establishes the following two-part test to determine whether an adjacent wetland is jurisdictional:
- Is the water body adjacent to the subject wetland a traditional navigable water or relatively permanent water connected to a traditional navigable water?
- If yes, does the wetland have a continuous surface connection to that water body (i.e., does the wetland directly abut the water where it is difficult to determine where the water ends and the wetland begins)?
The Guidance recognizes there are circumstances where there will be temporary interruptions to surface connections (e.g., drought and low tide events), and indicates the Agencies will resolve these circumstances on a case-by-case basis.
The same day EPA released the Guidance, the EPA and the Corps (collectively, Agencies) made available a prepublication version of a Federal Register notice titled “The Final Response to SCOTUS; Establishment of a Public Docket; Request for Recommendations” in which the Agencies announced forthcoming listening sessions and solicitation of public input on “key topics” relating to implementation of the definition of WOTUS in light of Sackett. Following these listening sessions and analysis of any public comments received, the Agencies will determine additional administrative actions (e.g., guidance, trainings, rulemakings) that are necessary to further clarify the definition of WOTUS. We should not rule out the possibility that the Agencies may move to publish a final rule without first publishing a proposed rule and receiving public comment, under the Administrative Procedure Act’s “good cause” exception to the usual rulemaking process. Under that exception, an agency may depart from typical rulemaking procedures where the agency has good cause to find the usual rulemaking process would be “impracticable, unnecessary, or contrary to public interest.”
In addition to the new Guidance and plans by the Agencies to potentially take further administrative action, there currently are at least four separate, ongoing challenges to the WOTUS rule and/or the implementation of the WOTUS definition following Sackett. Several U.S. District Courts have stayed proceedings on implementation of the Biden administration’s “Conforming Rule” for 60 days at the request of the Trump administration. In the meantime, the Corps is still implementing the pre-2015 regulatory framework in states that were named as plaintiffs in those suits (approximately half of the country), while the Conforming Rule is being implemented in the rest of the country. It is possible that the stays will be extended to allow the Trump administration additional time to take action with respect to WOTUS.
No matter the ultimate approach taken by the Agencies with respect to the definition of WOTUS and its implementation, and as we’ve learned over the years, we can expect any action taken with respect to WOTUS to be challenged in court. We’ll be watching closely for an update on litigation and the status of jurisdictional determination guidance in mid-April.
Expediting Projects Using CWA Emergency Permitting Provisions
Corps’ CWA regulations define an emergency as “a situation which would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship if corrective action requiring a permit is not undertaken within a time period less than the normal time.” In practice, the emergency permitting procedures of the CWA are typically invoked following extreme weather or public safety events (i.e., prior Fort Worth District guidance gives hurricanes and bridge collapses as examples) rather than for instances of economic hardship. The relevant regulations outline requirements for a reasonable public notice and comment attempt with the division engineer ultimately instructing the district engineer on the emergency permit processing procedures.
In the first few weeks of February, the Corps identified nearly 700 projects that could be subject to fast-tracking under the emergency permitting provisions. Reacting quickly, on February 20, 2025 the Center for Biological Diversity (CBD) filed a 60-day Notice of Intent (NOI) to sue the Corps over the agency’s emergency permit reclassifications, alleging that the Corps failed to comply with their notice requirements, failed to reasonably apply the defined term “emergency,” and that the Corps’ emergency permitting regulations are beyond the scope of the limited emergency authority explicitly referenced in the statutory text of the CWA. This last claim follows SCOTUS’ decision in Loper Bright . Page 13 of the NOI identifies the projects the Corps allegedly identified as being eligible for emergency treatment. The same day, reports indicated the Corps had rescinded the list and planned to spend more time to determine which projects meet the criteria set forth in the declaration of a National Energy Emergency.
Permitting Pause and Reclassification
In response to the EO Unleashing American Energy, the Corps temporarily paused permitting on February 5, 2025, for all “green energy” projects. “Green energy” projects seemed to be broadly interpreted with reports indicating renewable projects ranging from wind, solar, hydropower, and battery energy storage (BESS), and electric transmission serving such facilities as being impacted by the freeze. The short-lived pause was lifted the next day for most projects except for wind energy facilities, which continue to be subject to a permitting pause.
NWP 2026 Reissuance
The current NWPs and their general conditions issued in 2021 are set to expire in March 2026. Historically, the Corps will publish a proposed rule to reissue NWPs more than a year in advance of the expiration date in order to get through the CWA 401 certification and administrative rulemaking requirements. The outgoing Biden administration signaled that it would publish a Notice of Public Rulemaking this month, as well as their intent to address prior comments received on NWP-12, which was the subject to much litigation. As noted above, the Trump administration is eager to fully leverage the NWP program for streamlining traditional energy development. While the White House and Corps have not yet published any specifics on their intentions for the 2026 NWP reissuance, we can anticipate their review of how the NWPs for energy and related transmission might be expanded to cover a broader swath of actions with fewer notice requirements. Moreover, agencies with NWP-adjacent jurisdiction, such as the U.S. Fish and Wildlife Service, may likewise alter their regulatory frameworks to accomplish the Trump administration’s objectives. For example, the U.S. Fish and Wildlife Service may narrow the set of circumstances that would require pre-construction notification under General Condition 18.
Looking Ahead
As during President Trump’s first 30-days, we expect permitting to remain a top priority for reform and developments, which means a fluid situation for project proponents. We recommend that permittees monitor agency alerts, Federal Register notices, and all related litigation closely, while staying in regular contact with the federal resource agencies overseeing your project permitting. While the highlights covered above directly implicate CWA 404 permitting, we could also see incidental delays to 404 permitting as a result of other administration actions that disrupt the usual federal consultation process. For example, a significant reduction in the federal workforce as a result of the efforts of the Department of Government Efficiency could slow review of permit applications, jurisdictional delineations, and verification of pre-construction notifications, while a pause in the U.S. Fish and Wildlife Service’s consultations under section 7 of the Endangered Species Act for renewable energy would also pause issuance of 404 permits or NWP verifications while the Corps waits for clearance from their peer agency.
