There are currently more than 50 issued nationwide 404 permits—some of which still require pre-construction notifications—which are renewed once every five years. Many of those exemptions are for agricultural activities, like cranberry harvesting and constructing ponds for farms, or ecosystem and scientific services like surveying and soil maintenance. Some types of coal mining and oil and gas activity are also included in the program.
Buildings like stores, restaurants, hospitals, and schools currently have their own nationwide permit, which some data centers fall under. However, the permit requires a more in-depth, individual analysis if the project impacts more than half an acre of protected water.
The DCC in its March comment recommended the creation of a nationwide permit with “robust notification and coverage thresholds” and argued that “lengthy timelines for the approvals are not consistent with other national permits that have higher or no limits or have a threshold where a PCN is not needed, which allows immediate action.” Meta, which has announced its intent to build massive data centers across multiple states and is currently developing a 2,250-acre data center in Louisiana, also asked for a nationwide permit in its comment and suggested that the federal government further “streamline” the 404 permitting process.
Meta’s chief global affairs officer Joel Kaplan posted on X last week that the AI Action Plan “is a bold step to create the right regulatory environment for companies like ours to invest in America,” and that Meta is “investing hundreds of billions of dollars in job-creating infrastructure across the US, including state-of-the-art data centers.” Meta declined to comment further for this article through a spokesperson.
Environmental lawyers aren’t so sure that a nationwide permit for data centers, regardless of their size, would follow the intent of the Clean Water Act. “What makes [a blanket data center exemption] a little bit tricky is that the impacts are gonna differ quite a bit depending on where these are,” McElfish says. While one data center may impact just a “fraction of an acre,” he says, by rebuilding a stream crossing or filling in a wetland, other data centers in different areas of the country may have much larger impacts to local waterways during their construction.
Hannah Connor, a senior attorney at the Center for Biological Diversity, agrees. “What we’re seeing here is an attempt to expand the 404 nationwide permitting program so that it goes through this much reduced regulatory review outside of the intention of why [the permitting] program was created,” she says. “There’s much reduced regulatory review to kind of literally speed along the paving of wetlands.”
There are some data center projects in development today that have run into significant issues with federally protected waters. In Indiana, Amazon is currently galvanizing local opposition as it attempts to fill in nearly 10 acres of wetland and more than 5,000 streams to build a massive data center. In Alabama, environmentalists caution that the water footprint from a proposed data center could have serious impacts on local waterways and cause the possible extinction of a species of fish.
