The U.S. Environmental Protection Agency has proposed limiting the scope of challenges by states and tribes under Section 401 of the U.S. Clean Water Act, rolling back a 2023 Biden administration rule that officials say has slowed approvals for infrastructure projects.
Federal law requires certification before a US agency can issue a permit or license to discharge waste into federally protected bodies of water, described as “waters of the United States” or WOTUS. The first regulations implementing Section 401 were enacted in 1971 during the Nixon administration and remained in place until 2020, when the first Trump administration issued new ones to speed up approval of projects.
Environmental groups challenged the new rules in federal court, but were ultimately unsuccessful.
The Biden administration in 2023 rescinded the 2020 regulations and issued new ones that focused on expedited project approvals, but also encouraged stakeholder involvement early in development to avoid litigation.
The new proposal, published on January 15 in the Federal Registersays Biden’s rules are “fundamentally flawed” because they expand the scope of how states and other entities can challenge infrastructure projects. The rules issued in 2023 expanded the reach of Section 401, which “allowed certain states to abuse this provision, creating substantial regulatory burdens that unnecessarily delayed or blocked energy, infrastructure, and development projects critical to the economic and national security of the United States,” the EPA said in its announcement.
But environmental groups argue that the agency’s action is just the latest in a long line of efforts by the current administration to roll back environmental protections. Moneen Nasmith, Earthjustice’s director of national climate and fossil fuel infrastructure, said in a statement that the EPA’s effort “is solving a problem that doesn’t exist… States and tribes that take [their] seriously they are not abusing their authority, they are following the law”.
Trump’s proposal includes provisions that would limit the certification process to only determining whether one-off discharges meet “applicable and appropriate water quality requirements” rather than broader impacts, and would prohibit a certifying authority from requiring an applicant to withdraw and resubmit a certification application to ensure the process does not extend beyond a year.
The state and other certifying agencies have traditionally used their ability to request withdrawals to allow infrastructure owners and developers to move forward with projects in a way that would not only allow them to be built, but also be built in a way that meets applicable water quality standards.
In some cases, states have imposed conditions as part of their certifications. In October 2025, after a lengthy legal battle spanning several years, the Maryland Department of the Environment reached an agreement with Constellation Energy (formerly Exelon) to provide it with a water quality certification to continue operating a hydroelectric dam on the condition that the company install $340 million in operational improvements and environmental improvement projects at the site.
Robin Broder, acting executive director of Waterkeepers Chesapeake, which was involved in discussions leading to the agreement by the state and Constellation, worries that the Trump administration’s proposal will limit the ability of environmental groups to ensure that property owners and infrastructure developers have projects that do not degrade water quality.
Once all parties, including the Lower Susquehanna Riverkeeper, “were able to meet with the state and the dam owner, and look at all the issues together, we reached a water quality certification and settlement agreement that will protect [it]Broder told ENR. “I don’t see this kind of exercise happening in a very compressed pro-industry environment.”
