USA – TEXAS Trends and Developments Contributed by: Gerald J. Pels, Elizabeth E. Mack, Gerald D. Higdon, Susan Rainey, Elizabeth Corey and Brett A. Miller, Troutman Pepper Locke LLP
651 (2023), marked a recent turning point in wetlands regulation. The Court ruled that wetlands lacking a “continuous surface connection” to another body of water in the US are no longer protected under the CWA. The EPA is now poised to propose a new rule that goes even further and is expected to eliminate federal protections for even more wetlands. Under the soon-to-be proposed rule, which is expected to be final by year-end 2025, the federal government will only regulate wetlands if the wetlands meet a two-part test: first, they must contain surface water through- out the wet season, and second, they must abut and touch a river, stream, or other waterbody that also flows through the wet season. The upshot? We expect that far fewer wetlands will require permitting in advance of impacts. When wet- lands permits are not required, no review under the Endangered Species Act takes place, eliminating another potential barrier for business or private prop- erty interests. (Section 7 of the Endangered Species Act requires interagency cooperation to ensure that other agencies’ authorisations are “not likely to jeop- ardise the continued existence of any endangered or threatened species or result in the destruction or adverse modification of habitat of such species…”). Is it wrong for a nation to prioritise business and pri- vate property interests over the environment? Not necessarily. The US is not alone in making such choic- es. Still, wherever and whenever possible, we should strive to be responsible stewards of our land, waters, and native species – not just for ourselves, but for Over the last several years, EPA has been at the centre of a whirlwind of regulatory activity for the emerging contaminants per- and polyfluoroalkyl substances (PFAS). The current administration is holding the line on some rules, while tweaking or possibly abandoning others, and the landscape is changing rapidly. In a major milestone in April 2024, the EPA set drinking water standards for six PFAS compounds under the Safe Drinking Water Act. Although the Trump adminis- tration emphasised deregulation, the EPA announced in May 2025 that it would keep the drinking water generations of Americans to come. The Changing Landscape for PFAS
standards for perfluorooctanoic acid (PFOA) and per- fluorooctanesulfonic acid (PFOS). The EPA plans to give public water systems a break and extend the regulatory deadlines for meeting these standards. EPA anticipates issuing a proposed rule for this extension in late 2025. As a bigger change, EPA announced that it plans to rescind and reconsider the determinations for the remaining four PFAS compounds and mixtures regulated under the April 2024 rule (PFHxS, PFNA, HFPO-DA (GenX), and the Hazard Index mixture of these three PFAS plus PFBS). In ongoing litigation, the EPA argues that the prior administration should have allowed two separate comment periods regarding these four mixtures, to allow the public to comment first on whether the substances should be regulated, and then on the standards. As a result, EPA asks that the rule be vacated for these four PFAS mixtures. This may be a tactic to eliminate the standards for these PFAS, as the EPA has placed rescinding the rule for these mixtures on its planned agenda for upcoming regulatory proposals. Another 2024 Biden administration headline was the EPA finalising its designation of PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). During the current administration, the Department of Justice (DOJ) has claimed EPA might walk back this rule. In early September 2025, the DOJ even asked for a pause in a CERCLA cost recovery case, citing the potential that the EPA would rescind the hazardous substance designation. However, by 17 September 2025, in its filings in litigation directly challenging the hazardous substance determination, the EPA stated that it planned to retain these as haz- ardous substances and defend the rule. The CERCLA PFAS story doesn’t end there. Along with its 17 September announcement, EPA said it would create a “framework rule” to govern how addi- tional chemicals may be designated as hazardous substances. Administrator Zeldin has also spotlight- ed the plight of “passive receivers” – entities such as municipal wastewater treatment facilities and landfills that handle PFAS-impacted materials but didn’t create or use PFAS themselves. Zeldin has called for fed- eral legislation to address their unique challenges and pledged EPA’s support for such efforts.
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