On November 6, the Western States Water Council (WSWC) sent a letter to Senate Majority Leader John Thune and Minority Leader Chuck Schumer commenting on the Bipartisan American Affordability and Jobs Act of 2026 (BAAJA). The Council said it appreciates BAAJA’s aim of making federal permitting faster and more predictable. It urged Congress to make sure the reforms protect environmental resources and preserve state authority, and to give particular weight to the views of western governors and state water officials.
WSWC supported allowing NPDES permit terms of up to 10 years. It asked that states keep the discretion to set shorter terms and that existing authority to reopen permits under current law be kept.
The Council stressed that states are co-regulators, not merely stakeholders, and acknowledged that member states’ views on the scope of certification differ. Even so, it warned that the limits raise significant questions about states’ ability to address impacts from diversions and other hydrologic changes. It added that the limits could conflict with §401(d), and that the new evidentiary standards and undefined terms could raise administrative burdens, litigation risk, and costs for states. WSWC asked Congress to clarify how states’ ability to protect water quality and designated uses would be preserved, to resolve the conflict with §401(d), and to consult closely with states.
The bill would require EPA to set national §304(a) criteria by rulemaking, which would open them to direct court challenge. WSWC said these criteria should remain recommendations that states may adopt, modify, or replace. It cautioned that rulemaking could make them look like binding standards, that litigation could delay them, and that states would face new costs.
WSWC asked Congress to clarify that temporary hydropower operating variances do not override state water law or §401 conditions. It also asked that FERC consult affected states for its report on market barriers to hydropower. On geothermal, the Council welcomed the bill’s reliance on state permits and asked that states be expressly included in Interior’s consultation on leasing and permitting procedures.
The full letter and the WSWC positions it cites are available below.
WSWC Comments on the Bipartisan American Affordability and Jobs Act of 2026