EPA Proposes Changes to Provide More Certainty for Clean Water Act Section 401 Water Quality Certification Review
On January 13, 2026, the U.S. Environmental Protection Agency (EPA) announced a proposed rule to revise the Clean Water Act (CWA) Section 401 water quality certification regulations (40 C.F.R. Part 121), which proposes several clarifications to enhance certainty for project applications regarding the timing and contents of applications to state certifying authorities.[1] Administrator Lee Zeldin said the proposal is intended to return Section 401 to “clear statutory boundaries” while ensuring protections are implemented “lawfully” and “efficiently.” The proposed rule would narrow the scope of Section 401 review to point source discharges, standardize what qualifies as a complete certification request and when the review clock begins, prohibit withdrawal-and-resubmittal tactics, and add transparency requirements for certification decisions and conditions.[2] The proposed rule aims to limit tactics that have become common in certain states as they attempt to gain additional time for reviewing project applications, beyond the one-year maximum provided by statute.
U.S. Army Corps of Engineers Finalizes 2026 Nationwide Permit Reissuance and Modifications
On January 8, 2026, the U.S. Army Corps of Engineers (Corps) published its final action reissuing and modifying Nationwide Permits (NWPs). This final action reissues 56 existing NWPs and issues one new NWP. The changes are modest, but include helpful clarifications for certain activities and businesses. They also include program-wide updates to certain general conditions and definitions, such as by adding “nature-based solutions,” and changes tied to recent litigation affecting certain NWPs. The new NWPs and associated conditions and definitions take effect March 15, 2026 and will expire March 15, 2031.
EPA and Army Corps Propose to Narrow Federal Jurisdiction Under the Clean Water Act
On Monday, November 17, 2025, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) (collectively, the “Agencies”) released a pre-publication proposed rule to revise the definition of “Waters of the United States” (WOTUS) under the Clean Water Act (CWA). The proposal responds to the U.S. Supreme Court’s 2023 decision in Sackett v. EPA, 598 U.S. 651 (2023), but goes further than the Biden Administration’s response to the Sackett ruling in August 2023 (the “Conforming Rule”).[1] Sidley’s blog post on the prior administration’s rule can be found here.
U.S. Army Corps of Engineers Proposes to Reissue and Modify Nationwide Permits
On June 18, the U.S. Army Corps of Engineers (Corps) published a Notice of Proposed Rulemaking that would reissue 56 of its existing Nationwide Permits (NWPs), introduce one new NWP, and make targeted modifications to the scope of certain NWPs and their terms. Key updates include a new NWP for fish passage improvements and changes to reflect recent litigation outcomes — including rescinding Florida’s program authorization and the NWPs for finfish and (in part) shellfish mariculture activities — as well as clarifying the trigger for state water quality certification under Section 401. The Corps also proposes, among other changes, an express prohibition on combining acreage limits when using more than one NWP to purportedly authorize a greater impact, and requiring restoration of areas affected by construction mats.
The Future of Environmental Review of Federal Permitting Remains Unsteady as White House Seeks to Rescind NEPA Regulations
On February 19, 2025, the Council on Environmental Quality (CEQ) submitted a proposed Interim Final Rule rescinding its regulations implementing the National Environmental Policy Act (NEPA). The Rule will become effective 45 days after its publication in the Federal Register, marking the end of nearly 50 years of CEQ regulations serving as the foundation for federal environmental reviews. This Interim Rule comes right at the deadline set by President Trump’s Executive Order (EO) 14154—Unleashing American Energy—which rescinded CEQ’s authority to issue NEPA regulations and revoked President Carter’s EO 11991, which had originally directed CEQ to promulgate implementing regulations.
EPA Publishes First-Of-Its-Kind Framework for Considering Cumulative Impacts Across Agency Actions
On November 21, 2024, the U.S. Environmental Protection Agency (EPA) published Notice of a newly developed draft framework intended to provide all EPA programs with a shared reference point for determining when and how to analyze or consider cumulative impacts—defined broadly to include the totality of exposures to combinations of environmental stressors and their effects on health and quality-of-life outcomes. Keeping pace with the Biden administration EPA’s environmental justice drive, key goals of the Interim Framework for Advancing Consideration of Cumulative Impacts include empowering EPA to (1) more fully and accurately characterize the realities communities face, (2) pinpoint the levers of decision making and identify opportunities for interventions that improve health and quality of life while advancing equity, and (3) increase meaningful engagement, improve transparency, and center actions on improving health and environmental conditions in communities.
U.S. EPA Power Plant Effluent Rule Allowed to Go Into Effect
On October 9, 2024, the Eighth Circuit refused to block new U.S. Environmental Protection Agency (EPA) wastewater limits for coal-fired power plants. In Southwestern Electric Power Co., et al v. EPA, et al, multiple states, trade groups, and utility companies challenged EPA’s May 2024 Supplemental Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category (ELG Rule).
EPA Issues Amendment to Waters of the U.S. Rule Following Sackett Decision
The U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps), on August 29, 2023, issued a direct final rule amending the scope of “Waters of the United States” as defined in Clean Water Act (CWA) regulations. The final rule implements the U.S. Supreme Court’s recent decision in Sackett v. EPA, in which the Court held that only wetlands adjacent to Waters of the U.S. with a continuous surface connection to relatively permanent waters adjoining interstate navigable waters are to be regulated as jurisdictional waters.
