A host of EPA clean water and drinking water regulations are set to be reevaluated in the second Trump administration, with wetlands and PFAS regulations likely to be taken a closer look.
Many water lawyers and advocates believe the Heritage Foundation’s Project 2025 may provide a potential road map for water deregulation for the new administration, even though President-elect Donald Trump has disavowed the document.
A second Trump administration will almost certainly return to the water policies of the first Trump administration, with less federal regulation based on the Clean Water Act and fewer opportunities for people to oppose construction projects that affect wetlands and waterways, said contributor Neil McAlele. At Carlton Fields LLP in Miami.
Project 2025 calls on the EPA to rescind the Biden administration’s Waters in the United States, or WOTUS, rule, the Clean Water Act Section 401, and the state certification rule, and to “reconsider” classifying perfluoroalkyl and polyfluoroalkyl substances (PFAS) as “substances “hazardous” under federal law, and to review PFAS groundwater cleanup regulations.
The Section 401 rule effectively gives states veto power over large interstate infrastructure projects that could pollute water within their borders.
“My general view is that there will be broad impacts on programs under the water office with the Trump administration,” especially Biden’s WOTUS, 401 and PFAS regulations, said Steven Miano, a shareholder at Hangley Aronchick Segal Pudlin & Schiller in Philadelphia.
One of the first rules expected to be on the chopping table is the WOTUS rule, which the Biden administration finalized last year as a replacement for a previous Trump-era rule and to account for the Supreme Court’s 2023 ruling in Sackett v. EPA, which lifted the Clean Water Act’s authority over many From wetlands. This rule is being challenged in court by 27 states.
“I at least think the Trump administration will reinstate the WOTUS rule,” said Jeff Porter, head of the environmental law practice at Mintz, Levin, Cohn, Ferris, Glovsky and Popoo PC.
If Republicans retain control of the U.S. House of Representatives, Congress is expected to narrow the scope of WOTUS to more clearly define what wetlands are protected and what are not, he said.
PFAS and lead pipes
Alan Roberson, executive director of the Association of State Drinking Water Directors, said he believes the Biden administration’s new regulation to improve lead and copper rules, which was finalized last month and mandates the removal of all lead drinking water pipes by 2027, will remove PFAS from drinking water. Water regulations will be at risk in a second Trump administration
The Environmental Protection Agency set the nation’s first drinking water standards for six types of PFAS in April after determining that there is almost no safe level of exposure to the substances.
“States are the most interested in funding their programs — there is a significant funding gap today that is growing because of PFAS and LCRI,” Roberson said. “How federal funding to states emerges from the budget discussion is anyone’s guess.”
The new administration is expected to prioritize devolving water regulation to the states, perhaps including Clean Water Act Section 404, which allows drilling and filling, said Mark Sudol, a former Army Corps of Engineers official who is now a consultant for the environmental permitting firm Dawson & Co. partners.
Only three states have assumed control of the federal Section 404 permit, including Florida, New Jersey and Michigan. Florida’s takeover of the program, which was granted in the waning days of the first Trump administration, faces challenge in Center for Biological Diversity v. EPA in the U.S. District Court for the District of Columbia.
But Sudol said the EPA’s PFAS drinking water standards would be difficult for the new administration to roll back in part because doing so would be complex and controversial.
“Any change in PFAS regulations would be viewed negatively by people concerned with water quality,” Sudol said.
