EPA revises WOTUS rule, reduces burden on PFAS reporting

The Environmental Protection Agency (EPA) made two announcements this month with the potential to impact the asphalt pavement industry:

On Nov 17, EPA released its Final (Proposed) Rule on defining Waters of the United States (WOTUS). Relying on the Supreme Court’s 2023 Sackett Decision, this Administration’s EPA agreed that WOTUS must be narrowly construed and defined, based almost entirely on a continuous water flow and connection, regardless of the type of water body, including a ‘wetland’ or tributary. NAPA strongly supports EPA’s current rulemaking, which is good news for all industries because the agency is finally providing more clarity and certainty on what constitutes a WOTUS.

EPA’s Final Rule must still undergo a formal 45-day comment period with public hearings, consistent with all Rulemaking requirements. EPA is expecting the rule to be challenged.

However, as identified by Bloomberg Law, “If finalized, the new rule would reverse the Biden administration’s definition . . . continuing a nearly two-decade tradition of each new president updating the terms of federal waterway protections.”

“This action by the Trump Administration is a victory for common sense. Farmers, infrastructure builders, small businesses, manufacturers, home builders, local communities, and property owners will be able to function under a more reasonable regulatory environment without having to worry about the federal government constantly breathing down their necks. We can and will continue to ensure water quality throughout our nation under the Clean Water Act, but this proposed rule also protects the rights of states, individuals, and businesses to produce our food and goods, build infrastructure projects, and grow the economy.”

Transportation and Infrastructure Committee Chairman Sam Graves (R-MO)

Industry gains PFAS reporting clarity

Earlier in the month, EPA also proposed clarifying PFAS reporting rules, further reducing regulatory burden and making implementation of the prior Administration’s PFAS reporting requirements more practical.

PFAS is shorthand for per-and polyfluoroalkyl substances, sometimes called “forever chemicals.”

EPA’s Proposed Rulemaking would now explicitly exempt (actually, not include) reporting PFAS impurities in materials at concentrations below 0.1% (1,000 ppm), among other exemptions. Given current understanding of even PFAS-contaminated pavements, once the Rule is promulgated, the asphalt pavement mix industry will not need to worry about these PFAS reporting requirements, at least from a federal perspective.