Biden Clean Water Rules Vulnerable in New Trump Administration

A host of EPA clean water and drinking water regulations stand to be re-evaluated in the second Trump administration, with wetlands and PFAS regulations among the most likely to get a closer look.

Many water lawyers and advocates believe that the Heritage Foundation’s Project 2025 may provide a possible water deregulation road map for the new administration, though President-elect Donald Trump has disavowed the document.

A second Trump administration will almost certainly return to the water policies pursued in 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 Neal McAliley, a shareholder at Carlton Fields LLP in Miami.

Project 2025 calls for the Environmental Protection Agency to repeal the Biden administration’s waters of the US, or WOTUS, rule, its Clean Water Act Section 401 state certification rule, and to “revisit” the designation of per- and polyfluoroalkyl substances (PFAS) as “hazardous substances” under federal law, and revise PFAS groundwater cleanup regulations.

The Section 401 rule effectively gives states veto power over large interstate infrastructure projects that could pollute waters within their borders.

“My general view is that there will be broad implications for the programs under the Office of Water with the Trump administration,” especially Biden’s WOTUS, 401, and PFAS regulations, said Steven Miano, shareholder at Hangley Aronchick Segal Pudlin & Schiller in Philadelphia.

One of the first rules expected to be on the chopping block is the WOTUS rule, which the Biden administration finalized last year as a replacement for an earlier Trump-era rule and to account for the Supreme Court’s 2023 ruling in Sackett v. EPA, which lifted Clean Water Act jurisdiction on many wetlands. That rule is being challenged in court by 27 states.

“I think at the very least the Trump administration will restore its WOTUS rule,” said Jeff Porter, chair of the environmental law practice at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo PC.

If Republicans retain control of the US House of Representatives, Congress can be expected to narrow the scope of WOTUS to more clearly delineate what’s a protected wetland and what’s not, he said.

PFAS and Lead Pipes

Alan Roberson, executive director of the Association of State Drinking Water Administrators, said he believes the Biden administration’s new Lead and Copper Rule Improvements regulation, which was finalized last month and mandates all lead drinking water pipes to be removed by 2027, and the PFAS drinking water regulations to be vulnerable in the second Trump administration.

The EPA set the country’s first drinking water standards for six types of PFAS in April after determining that almost no level of exposure to the substances is safe.

“States are most concerned about funding for their programs—there is a significant funding gap today that is increasing due to the PFAS and LCRI,” Roberson said. “How federal funding for states shakes out of the budget debate is anyone’s guess.”

The new administration can be expected to prioritize devolving water regulation to the states, possibly including Clean Water Act Section 404 dredge-and-fill permitting, said Mark Sudol, a former Army Corps of Engineers official who’s now an adviser to environmental permitting firm Dawson & Associates.

Only three states have assumed control of federal Section 404 permitting, including Florida, New Jersey, and Michigan. Florida’s assumption of the program, granted in the final days of the first Trump administration, is being challenged in Center for Biological Diversity v. EPA in US 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 is going to be viewed negatively by the water quality folks,” Sudol said.