On May 14, 2025, the U.S. Environmental Protection Agency announced via press release that it will reduce the scope of its April 10, 2024 National Primary Drinking Water Regulation to the two most prevalent per- and polyfluoroalkyl (PFAS) compounds, PFOA and PFOS, and extend the compliance timeline for public water systems by two years, from 2029 to 2031.

The 2024 Rule, which Kaplan Kirsch detailed here, required public drinking water providers nationwide to monitor public drinking water supplies for six PFAS compounds. If detections revealed concentrations above the new maximum contaminant levels (MCLs), providers would be required to treat drinking water supplies to meet the MCLs to protect public health. The 2024 Rule established MCLs of 4 parts per trillion (ppt) for PFOA and PFOS, individually, 10 ppt for PFNA, PFHxS, and PFPO-DA, and Hazard Index MCL of 1 for mixtures of PFHxS, PFNA, HFPO-DA, and PFBS.

Now EPA plans to retain the 2024 MCLs of 4 ppt for PFOA and PFOS, but halt regulation of the other four PFAS. EPA also plans to push back the compliance timeline by two years, allowing public water systems until 2031 to comply with the MCLs. The agency stated this was necessary to allow public water providers, especially in rural and small communities, to meet the new regulatory requirements, which in some cases require construction, installation, and operation of complex and costly treatment systems.

EPA intends to issue a proposed rule this fall and finalize it in the spring of 2026. It is clear from this announcement and another just weeks ago that EPA Administrator Lee Zeldin intends to move ahead with at least some actions to regulate PFAS during the Trump Administration.

For more information about PFAS, or how PFAS regulations or liability may impact your organization, please contact Thomas A. Bloomfield, Polly B. Jessen, Sara V. Mogharabi, or Timothy Roth.

We are pleased to share Kaplan Kirsch’s Colorado Energy & Environmental Legislation – 2025 Year in Review Digest.

In 2025, the Colorado General Assembly continued efforts to decarbonize the State’s economy, with particular focus on distributed energy resources, buildings, and transportation, while also aiming to protect vulnerable populations and consumers. The 2025 digest covers the following topics:

• Distributed Energy and Building Decarbonization
• Electric Transmission
• Thermal and Nuclear Energy
• Battery Disposal
• Water Use & Funding
• Utility Rates, Meters & Consumer Protection
• Just Transition & Environmental Justice
• Electric Vehicles, Vehicle Emissions & Transit
• Public Lands
• Oil & Gas

We hope you find this Digest useful in your efforts to remain current in the always-evolving legal and regulatory framework that governs Colorado energy and environmental landscape. If you have questions about any of the materials in this Digest, please contact Sarah Keane, Samantha Caravello, Polly Jessen, Tom Bloomfield, Bob Randall, or Nate Hunt.

On April 28, 2025, EPA Administrator Lee Zeldin outlined the agency’s plans for continued federal regulation of Per- and Polyfluoroalkyl Substances (PFAS) under the Trump Administration, which are summarized in a Press Release from EPA. Administrator Zeldin announced a lengthy list of agency actions, including designating an agency lead for PFAS, creating effluent limitations guidelines for some PFAS compounds to help keep them from entering drinking water systems, and programs designed to more clearly identify liability for PFAS polluters and protect “passive receivers.” EPA emphasizes that these actions are just the start of decisions and actions that EPA will take to address PFAS contamination. The announcement and Press Release did not provide details on the proposals or clear time frames for their implementation; nonetheless, it is still a significant development amidst other environmental regulatory rollbacks, indicating that the Trump Administration intends to expand upon previous agency efforts to study, regulate, and attempt to fairly allocate liability and costs related to PFAS.

For more information about PFAS, or how PFAS regulations or liability may impact your organization, please contact Thomas A. Bloomfield, Polly B. Jessen, Sara V. Mogharabi, or Timothy Roth.

The United States Department of Transportation (DOT), Federal Transit Administration (FTA), and Federal Railroad Administration (FRA) have taken measures to implement Trump administration policy directives through grantmaking activities. A recent Executive Order suggests that additional measures may follow.

First, the Secretary of Transportation issued a letter to all recipients of DOT funding on April 24, 2025 “to clarify and reaffirm pertinent legal requirements, to outline [DOT’s] expectations, and to provide a reminder of [recipients’] responsibilities and the consequences of noncompliance with Federal law and the terms of your financial assistance agreements.” The letter highlighted two particular purported responsibilities. The first is nondiscrimination on the basis of race, color, national origin, sex, or religion, which the letter asserts prohibits any practices designed to achieve diversity, equity, and inclusion. The second is cooperation with the Department of Homeland Security (DHS), including U.S. Immigration and Customs Enforcement (ICE), in the enforcement of federal immigration law. The letter asserts that grant recipients may expose themselves to civil and criminal liability if they decline to cooperate with DHS and ICE. It further states that grant recipients can face similar liability if they do not “ensure that the Federal financial assistance . . . is provided only to subrecipients, business, or service providers that” are allowed to do business in the United States and do not have employees who are unlawfully present in the United States.

Second, FRA has updated the General Terms and Conditions it uses in funding agreements. Pursuant to updates to the Standard Terms and Conditions published on March 28, 2025 and April 25, 2025, an FRA funding recipient must certify that “it does not operate any programs promoting diversity, equity, and inclusion (DEI) initiatives that violate any applicable Federal anti-discrimination laws” and agree that it its compliance with federal anti-discrimination law is material to the government’s payment decisions, thereby potentially exposing the recipient to civil liability under the False Claims Act if it violates those laws. The recipient must also agree to cooperate with and not impede ICE and DHS in the enforcement of immigration law.

Future DOT actions may target the implementation of Title VI of the Civil Rights Act. An Executive Order issued on April 23, 2025, directs the Attorney General to repeal or amend regulations implementing Title VI to eliminate the regulations’ use of disparate-impact liability. The Attorney General must also coordinate with the heads of other agencies, including DOT, to report all existing regulations, guidance, and orders that impose disparate-impact liability and detail steps for their amendment or repeal.

If you have questions or wish to discuss communications you have received from DOT, please contact Allison Ishihara Fultz, Ayelet Hirschkorn, John Putnam, Chuck Spitulnik, Christian Alexander, or Grant Glovin.

Within the past few days, the FAA and U.S. DOT took several significant steps toward aligning federal grant programs with the Trump administration’s policy priorities and objectives, especially as set forth in a series of Executive Orders issued early in this administration. The following documents are of considerable importance to airport sponsors and their compliance with federal law. We recommend that airport sponsors review these materials closely and expediently.

• Today, the FAA issued Notice of Intent to modify the standard Airport Improvement Program (AIP) Grant Assurances, which would be applicable to all grants issued in FY25 and beyond. The proposed modifications would implement several mandates contained in the FAA Reauthorization Act of 2024, as well as require compliance with certain Executive Orders issued by the administration (while eliminating the obligation to comply with others). A complete copy of the proposed revisions to the Grant Assurances is available on the FAA’s website. In accordance with statutory requirements, the FAA will accept comments on the proposed revisions for 14 days; however, we understand the agency is effectively implementing the new Assurances immediately. The FAA has not addressed whether sponsors would be relieved of obligations existing under already executed grant agreements that are inconsistent with the proposed modifications to the Grant Assurances.

• The Secretary of Transportation has issued a letter to all grant recipients reminding them of their obligation to comply with federal law. The Secretary’s letter emphasizes compliance with federal anti-discrimination laws, and asserts the Department’s position that any policy, program, or activity that is based on a prohibited classification, including diversity, equity, and inclusion programs, “presumptively violate federal law.” The Secretary also asserts that federal law requires airport to cooperate with (and not impede) Immigration and Customs Enforcement (ICE) and other Department of Homeland Security agencies in the performance of their duties. We understand that the FAA will update (and other agencies have already updated) the form of their grant agreements to explicitly reference these requirements in connection with a grant award. That update will apparently appear as a new set of “special conditions” in all grant agreements (not as new Grant Assurances).

• The FAA has redesignated its current list of Required Federal Contract Provisions, last updated May 24, 2023, as “historical.” The FAA’s website notes that it is “updating the Required Contract Provisions for AIP and Obligated Sponsors,” presumably to reflect changes as a result of several of the administration’s Executive Orders. We are not aware of any timeline for posting revisions to the Required Federal Contract Provisions.

The developments summarized above may have significant implications for airport sponsors and their programs, and the public comment period for the proposed modifications to the Grant Assurances is unusually short. Notably, several of the Executive Orders and portions thereof are also the subject of ongoing legal challenges. We therefore encourage airport staff to consult with their counsel for further guidance on compliance with these new requirements.

For any questions regarding this alert, please contact Peter Kirsch, Steven Osit, Slone Isselhard, or any other Firm attorney with whom you normally work.

Kaplan Kirsch LLP is pleased to announce five attorneys have been selected for inclusion to the 2025 Colorado Super Lawyers^® list.

2025 Colorado Super Lawyers:

• Samantha R. Caravello – Environmental (Rising Stars)
• Polly B. Jessen – Environmental
• Sarah C. Judkins – Environmental (Rising Stars)
• Peter J. Kirsch  Aviation and Aerospace
• Lori J. Potter  Environmental Litigation

Super Lawyers^® utilizes a rigorous selection process based on peer nominations and independent research evaluating 12 indicators of peer recognition and professional achievement. This multi-phase process ensures that all Super Lawyers^® lists provide users with a credible, comprehensive list of outstanding attorneys in the state. Only the top 5 percent of outstanding lawyers in Colorado are rated by Super Lawyers^®.

In a decision issued last week, the Supreme Court of the United States held that the United States Environmental Protection Agency (EPA) exceeded its authority by including “receiving water limitations” in a National Pollutant Discharge Elimination System (NPDES) permit, siding with the City and County of San Francisco in City & County of San Francisco v. United States EPA. The Court expressed concern that allowing receiving water limitations in the permit (which it called “end-result” requirements) would undermine the “permit shield” defense found in the Clean Water Act (CWA), which shields permit holders from liability if they are in compliance with the terms of their permit.

The dispute over the permit began in 2019, when EPA and the San Francisco Regional Water Quality Control Board included for the first time two narrative receiving water limitations in San Francisco’s wastewater and stormwater permit renewal; namely, that discharges from San Francisco’s treatment facility could not “cause or contribute” to a violation of any applicable water quality standard for receiving waters and that such discharges cannot “create pollution, contamination, or nuisance” as defined in California’s Water Code. Of interest to municipalities facing challenges in complying with these undefined narrative standards and related enforcement actions, San Francisco contended at the Ninth Circuit that such permit conditions were “arbitrary and capricious” because they fail to provide sufficiently clear direction on how to achieve compliance with water quality standards; however, it abandoned the argument at the Supreme Court. New York, Boston, the District of Columbia, Buffalo, and several wastewater and stormwater agencies filed amici curiae briefs with the Supreme Court similarly contending (in part) that narrative permit standards imposed by EPA were impermissibly vague—thus, making permit compliance uncertain and liability exposure high. Notably, the dissenting opinion in the Court’s 5-4 decision left open the possibility that if narrative permit provisions are vague or unreasonable, the terms could be challenged under the arbitrary and capricious standard.

The Supreme Court rejected San Francisco’s broad argument that only effluent standards are authorized by CWA section 1311(b)(1)(C); however, the Court agreed with San Francisco’s narrower argument that EPA had exceeded its authority under section 1311(b)(1)(C) by including in the permit certain receiving water limitations, i.e., those based on ambient water conditions. In addition to textual analysis, the Court emphasized the historical context of the pre-1972 Water Pollution Control Act, which exposed permittees to liability if the receiving water failed to meet water quality standards, regardless of the number of dischargers to the same body of water. In the Court’s view, Congress intended to scrap this approach when it overhauled the CWA. The Court also stated it was EPA’s responsibility—rather than a permittee’s—to determine what should be done to protect the quality of the receiving water.

This important decision could have significant impacts on NPDES permit conditions and negotiations, regulatory enforcement proceedings, and citizen suits under the CWA. It is also likely to impose additional strains on regulatory agencies like EPA and state water agencies at a time when they face severe budget cuts and staffing restrictions.

If you have questions about such matters, please contact Bill Marsh, Nate Hunt, Polly Jessen, or Tom Bloomfield at Kaplan Kirsch.

On February 21, 2025, the Colorado Air Quality Control Commission (AQCC) adopted new rules to phase out polluting pneumatic controllers and pneumatic pumps at oil and gas production sites and to improve the state’s monitoring and reporting program for drilling and early production operations. Kaplan Kirsch attorneys Tom Bloomfield, Sarah Judkins, Tim Roth, and Sarah Keane represented Environmental Defense Fund and Colorado Communities for Climate Action (a coalition of 44 public entities throughout Colorado) throughout the rulemaking. The Firm played a key role in negotiating consensus on the primary elements of the rule, with the Air Pollution Control Division, oil and gas operators and other non-profit organizations.

Pneumatic controllers are the second largest source of methane — a potent greenhouse gas contributing to climate change — from the state’s oil and gas industry. They are also a source of ozone precursor emissions and hazardous air pollutants. Colorado is now the first state in the nation to implement the Environmental Protection Agency’s standards for reducing methane emissions from existing oil and gas sites. Further, the rules adopted by the AQCC are more aggressive than the federal standards because they accelerate the phase-out schedule for pneumatic controllers that emit methane in several important respects.

The rule will also improve monitoring and reporting for oil and gas drilling and early production periods. This program will provide important information about emissions during the early phase of oil and gas production, which in turn will better inform oil and gas operators, state regulators and the public about the nature and cause of these emissions and how they can be avoided. While this monitoring program is unique to Colorado, the data can be used to identify and improve emission control programs for such activities in other jurisdictions as well.

Additional information may be found here (The Denver Gazette) or here (The Environmental Defense Fund).

On January 20, 2025, President Trump issued Executive Order 14154, Unleashing American Energy, which directed the Council on Environmental Quality (CEQ) to propose rescinding CEQ’s NEPA regulations and to instead provide guidance on implementing the National Environmental Policy Act (NEPA). Executive Order 14154 also explicitly revoked the 1977 Carter Administration’s Executive Order 11191 which directed CEQ to promulgate NEPA regulations and required Federal agencies to comply with those regulations.

Today, February 25, 2025, CEQ published an Interim Final Rule announcing the removal of the existing NEPA regulations from the Code of Federal Regulations. CEQ’s position is that it “may lack authority to issue binding rules on agencies in the absence of the now-rescinded [Executive Order] 11191.” Today’s notice states that the effective date of the Interim Final Rule will be April 11, 2025. Although the Interim Final Rule announces CEQ’s legal conclusion that notice and comment rulemaking is not required for this action, CEQ nevertheless is voluntarily providing an opportunity to provide public comment on the interim final rule through April 11, 2025. Importantly, CEQ advises that its Interim Final Rule “does not strip agencies of discretion to continue following similar procedures” or to rely on their own NEPA implementing procedures – even those procedures that largely conform to CEQ’s regulations.

In response to the January 20, 2025 Executive Order, CEQ has also issued a memorandum providing guidance to heads of Federal Departments and Agencies. This guidance memo directs agencies to revise or establish NEPA implementing procedures to expedite permitting approvals and for consistency with the current NEPA statute. Agencies are directed to complete the revisions of their procedures by February 19, 2026. The memorandum also advises that while these revisions are ongoing, “agencies should continue to follow their existing practices and procedures for implementing NEPA consistent with the text of NEPA, [Executive Order] 14154 and this guidance.”

The guidance memorandum also includes updated policy directions designed to ensure that NEPA analyses comply with the administration’s emphasis on expediting environmental reviews, eliminating analysis of environmental justice impacts, and adhering to a strict interpretation of statutory requirements.

While the regulatory landscape changes, there are several key take-aways:

• NEPA, as set forth in statute (42 U.S.C. § 4331, et seq.), is still in full effect and federal agencies must still conduct appropriate environmental reviews for federal actions that may impact the environment. The effects of past caselaw that relied on the CEQ regulations is unclear, however.
• While it will take time for new procedures to evolve, agencies are being directed to comply with the statute, to expedite NEPA approvals, and to meet applicable deadlines.
• Interested stakeholders can comment on the interim final rule directing the rescission of the CEQ regulations. Any such comments must be filed by April 11, 2025.
• Stakeholders should also monitor developments as individual agencies update their respective NEPA implementing procedures.

For additional questions, please contact Katie van Heuven, Nate Hunt, Matt Adams, John Putnam, or any other Kaplan Kirsch attorney with whom you normally work.

Kaplan Kirsch is honored to have our construction practice named among the 2024 Law360 Practice Group of the Year. The annual awards select winners for their “landmark matters” and “general excellence.”

The Firm’s construction group offers deep experience to clients over a wide variety of construction-related matters. Our work often involves drafting and negotiating contracts for construction, demolition and materials management, construction management, architectural and engineering consulting services and construction-related access agreements, as well as compliance with federal and state contracting and procurement requirements. We also advise on construction-related claims.