.JPG)
Last week, the Senate introduced the “Bipartisan American Affordability and Jobs Act of 2026” which attracted a lot of attention for a lot of reasons. Whatever one might think about the need for permitting reform, or where to draw an appropriate line when balancing the desire for reform with the need for protections for the communities and resources on the other end of a permitted project, the central problem with this bill is that so much of it is not about “permitting reform” at all. Again, reasonable minds can quibble about where to draw the line on any given question about permitting reforms. But when massive rollbacks of our foundational environmental laws are crammed into a bill, major alarm bells should be going off, warning that we may have something a little more serious than just “permitting reform” on our hands.
This post will be touching on only one tiny provision in this 417-page monster. As far as protecting water quality in this country, or restoring the Chesapeake Bay, is concerned, this provision is one of the most consequential. But it is certainly not the only poison pill lurking in this bill. No vote should be cast on a bill as large and consequential as this one without serious scrutiny over each and every provision. And so Chesapeake Legal Alliance will be doing its part today, by helping to unpack the consequences of one such section.
Section 1203 of the bill proposes one very short and simple change: it swaps out “five years” for “10 years” in the context of a Clean Water Act permit’s duration. But this one line of the bill, among thousands, goes straight to the heart of the Clean Water Act itself. This is not using a scalpel to tweak a process, but using a cudgel to smash our water pollution control framework in one swing. To understand why this change matters, we first need to understand a bit about the history and purpose of the Clean Water Act and how this provision is part of what makes this statute particularly unique and powerful.
CLA has written more extensively about the origin story of the Clean Water Act, which you can read here. But the short of it is that the Congress in 1972 that created the Clean Water Act (CWA) (and passed it nearly unanimously!) was acting with a sense of urgency befitting the environmental crises of the time. After enacting one incremental reform after another to the country’s water pollution control laws over the preceding decade, they finally decided to put everything they had into the 1972 Amendments.
With that new law, Congress didn’t just create a few prescriptive, proscriptive, or procedural requirements or standards. Instead, Congress put the federal government on the clock, giving it a deadline for fully fixing our massive water pollution problem. Congress took what would normally be “purpose or intent” language and stuck it right into the law itself. Thus, the CWA’s goal - making our waters fishable and swimmable - was codified into the very first section of the law and given a date and a deadline. The rest of the law basically consists of the mechanics for how to continually advance progress swiftly toward that goal. In short, the CWA is a purpose-driven, temporally-focused law; this is why a provision that would dramatically slow down or delay implementation of the law is so damaging.
Congress was not designing a system in which pollution standards would be set once and left in place. The legislative history of the CWA describes five-year permit reviews as a means of ensuring that pollution-control techniques remain current and of ensuring that our regulatory regime keeps up with the pace of scientific advancements. Indeed, in recognition of these important factors, Congress specifically rejected a previous attempt to introduce longer permit periods beyond the five-year term set in the original law. The shorter the permit term, the more swiftly our country’s pollution control regime can adapt and be improved, and the more quickly our waters can become fishable and swimmable.
More than half a century later, there is no basis for assuming that this five-year check-in period is less important. Quite the opposite. Most of our waters are still not fishable and swimmable, industrial pollution is still not eliminated (even though we’re decades past that deadline), and headlines abound about the health consequences of all kinds of contaminants in our drinking water. The U.S. Environmental Protection Agency’s (EPA) latest assessment of America’s rivers and streams found that 47 percent of river and stream miles were in poor condition, including 20 percent that exceeded bacteria standards.
And here in the Chesapeake Bay watershed, which many across the country had looked to as a lodestar, where local, state, and federal governments, buoyed by substantial public interest, were supposed to throw everything into an effort to make the Bay fishable and swimmable, we just blew yet another deadline. So, clearly we are lagging far behind in our national efforts to restore America’s waters to health, a goal that is supported by an overwhelming percentage of Americans and at a time when Americans agree on very little (notwithstanding the overwhelming agreement that we shouldn’t be fast tracking more data centers). Now is not the time to dramatically weaken one of the most important tools in the statute, and certainly not as part of a broader policy goal of making it easier to cram more data centers and energy infrastructure into our communities.
The Clean Water Act’s five-year permit term is also critical to ensure that our pollution controls reflect the most recent scientific information. The Clean Water Act was, and is, a technology-forcing statute, meaning that as pollution control technology enhances - and becomes cheaper - it is adopted, and agencies must periodically apply pressure to implement those pollution control technologies. When a permit is renewed, it provides an opportunity for permit writers to consider the health of the receiving water a facility discharges its pollution into, as well as new technologies that might have come along to control pollution more efficiently, and to make sure that any new watershed restoration plans or policies relevant to the receiving water is translated into the permit.
An EPA report to Congress written decades ago concluded that longer permit terms could significantly reduce opportunities to incorporate changes in effluent guidelines or state water-quality standards and delay receipt of updated information about the pollution being discharged into our communities and waterways. Environmental protections are only effective when monitoring data and new scientific knowledge can be put to use.
One counterargument by industry permit-holders is that even if a permit term is increased to 10 years, that permit can still be modified or reopened. This is highly disingenuous considering that some of the other reasons proponents cite to support this amendment is the scarce permitting resources that regulatory agencies have to service these permits. How can proponents plausibly claim that these same agencies will have the resources (much less the will) to modify permits one by one, and fight that fight with the well-heeled industries subject to those permits, one-by-one.
Then there is the transparency benefit that would be rolled back here. Another of the Clean Water Act’s defining features is the public participation rights it bestows on all Americans. Much attention is given to the high profile legal rights to sue that the Act conveys on Americans affected by illegal pollution. But an equally important public right that Congress enshrined in the CWA statute was the right to participate in the implementation of the law, especially in the process of commenting on permit renewals.
Every five years a community has a right to engage with the permitting authority to make sure its voice is heard in the process of establishing appropriate permit terms and conditions for a facility that could potentially harm their water. This is particularly important as watershed organizations and organizations like local Waterkeepers continue to proliferate, bringing valuable monitoring resources - and data - to bear in this process. If we lengthen the duration of permits, we reduce the opportunity for the public to exercise their rights to participate in the protection and restoration of their nearby waters.
For decades here in the Bay region, our policies have been dominated by a focus on three particular pollutants - nitrogen, phosphorus, and sediment - as they were the primary drivers of the Bay’s most obvious problems: the large dead zone in the middle of the Bay and the murky waters smothering life below the surface. But today, these three pollutants often take a back seat in the public’s mind to other contaminants that almost no one heard about even just a decade ago.
The most prevalent examples of these contaminants include like the highly toxic “forever chemicals” collectively known as per- and polyfluoroalkyl substances (or “PFAS”), as well as microplastic pollution, both of which have spawned countless bills and lawsuits in just the last few years as Americans wake up to a crisis that we knew little about just a few years ago. Shorter, five-year permit terms allow, even require, these permits to adapt and evolve quickly, keeping pace with rapid developments in science and, sometimes, among public opinion. If we increase the duration of these permit terms, we impede our ability to adapt and protect public health by stopping the spread of these toxic contaminants at the source.
To finish up here with the Chesapeake Bay, it is worth emphasizing that the most recent Bay restoration effort, known as the TMDL, was written specifically with five-year permit cycles in mind. The Bay TMDL was essentially a 15-year project. Policymakers and regulators devised their watershed implementation plans and specific policies with the three-permit-cycle concept in mind. If Congress had switched from a 5-year permit term to a 10-year term decades ago, that would have substantially weakened the ability of our permits to continually drive further progress toward our water quality goals over reasonable periods of time.
The problem Congress should be concerned about is the lack of adequate staffing for these permits. Most states have a backlog of permit renewals under review, called “administratively continued” permits. These permits, also known as zombie permits, already remain stagnant, without sufficient attention from agency permit writers to address pollution concerns to local waterways. Doubling the permit period wouldn’t break the logjam. Instead, it would allow it to continue for well over a decade of stagnant pollution controls for facilities discharging into already impaired waters. It would also prevent both agencies and the public from addressing emergent pollutants like PFAS.
Permits are where the “rubber meets the road” for the Clean Water Act. If we lengthen the duration of a permit we strike at the very heart of the CWA: it’s timeline for swiftly providing Americans with clean and healthy water. This is what Congress must consider as it takes up this bill.
