U.S. Army Corps of Engineers Expedites Clean Water Act Section 404 Dredge-and-Fill Permit For Line 5 Oil Pipeline

The U.S. Army Corps of Engineers (USACE), St. Paul District in Minnesota recently issued a controversial Clean Water Act (CWA) Section 404 Dredge-and-Fill individual permit on October 29, 2025, to Enbridge Inc. for the construction-related impacts to Waters of the United States (WOTUS) resulting from the Line 5 Reroute project (Line 5) in northern Wisconsin. This is the first such permit issued after President Trump’s Inauguration Day “Declaring a National Energy Emergency” and “Unleashing American Energy” executive orders (EO).

What powers do these EO grant?

Described in the “Unleashing American Energy” EO 14154 (Unleashing American Energy EO), the heads of relevant agencies are encouraged to undertake all available efforts to streamline permitting processes for projects deemed essential by the agency head to the United States’ economy or national security, to expedite the adjudication of Federal permits, including through emergency authorization. It also facilitates the permitting and construction of interstate energy transportation and other critical energy infrastructure, to “unleash America’s affordable and reliable energy and natural resources” and “restore American prosperity.” Similarly, the “Declaring a National Energy Emergency” EO 14156 (National Energy Emergency EO) states that emergency approvals can be granted to approved agencies to facilitate the President’s energy agenda.

What is a CWA Section 404 Permit?

Section 404 of the CWA establishes a program for regulating the discharge of dredged or fill material into WOTUS, including wetlands. This includes activities from projects which include fill for development, water resource projects, infrastructure development, and mining projects. In accordance with Section 404, a permit is required before any dredged or fill material may be discharged into WOTUS. Individual permits are reviewed by the USACE or other state or tribal Section 404(g) program meeting the guidelines promulgated by the U.S. Environmental Protection Agency (U.S. EPA). As part of the authority granted by the EO, the USACE may fast-track the permitting process for projects which are found to meet the requirements for “emergency” status.

Why is the Line 5 Section 404 permit significant?

According to the USACE, the permit request for the Line 5 project “meets the terms of EO 14156 and is therefore subject to special emergency permitting procedures to address an energy supply 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 needed to process the application under standard procedures.” However, environmental groups have vowed to challenge the approval, with ongoing legal complaints challenging the legality of the National Energy Emergency EO. One key component of these environmental reviews is the National Environmental Policy Act (NEPA), which requires federal agencies to assess environmental impacts of their major actions, and the streamlined process limits those environmental reviews and public involvement.

Section 401 of the CWA regulates water quality certifications, giving states and tribes the authority to confirm that a proposed activity will comply with state water quality standards before a federal permit can be issued. On November 5, 2025, U.S. EPA advanced a CWA action to the White House Office of Management and Budget (OMB) for review to revise the Section 401 rule. While the proposed revised rule was expected by U.S. EPA later in 2025, as the end of the year quickly approaches this may get shifted to early 2026 with a final rule expected by mid-2026.

The local state authority for the Line 5 relocation project is the Wisconsin Department of Natural Resources (DNR), which is subject to an ongoing legal challenge for water quality certification. The Wisconsin DNR issued a water quality certification for the project; however, the decision is under a legal challenge, so until a final decision has been made by the courts, the water quality certification cannot be considered final. Due to the legal challenge and the final water quality certification pending, environmental groups are denouncing the USACE decision to prematurely issue the Section 404 permit for the Line 5 project as violating the CWA.

What this means looking forward:

ALL4 will continue to monitor the USACE fast-tracking of emergency permits in Wisconsin and the Midwest region and we’ll track any changes to states’ Section 401 authority as U.S. EPA is expected to propose a revised rule. Facilities in the Midwest, those looking to pursue a CWA Section 404 permit or who may be affected by CWA Section 401 water quality certifications, or those who may be affected by such permitting actions should continue to monitor the outcomes of the proposed rulemaking and ongoing legal challenges.

For inquiries about ALL4’s services or follow-up questions regarding the proposed Part 253 regulations, please contact ALL4 Technical Manager Cody Fridley at cfridley@all4inc.com and/or Consulting Engineer Corey Prigent at cprigent@all4inc.com.