Vol. No. 56-2 Water Quality
Regulating Forever Chemicals: The Clean Water Act and PFAS
By: Alisha Adams and Blair Buchanan
Introduction
The Clean Water Act (“CWA” or “the Act”) has served as the primary federal statute for protecting the waters of the United States for over fifty years. The Act’s primary objective “is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”[1] Although the Act has proven effective in mitigating traditional pollutants, it now confronts a contemporary, and particularly challenging, class of contaminants: per- and polyfluoroalkyl substances (“PFAS”).
Commonly referred to as “forever chemicals” due to their ability to persist in the environment and human body, PFAS are a class of synthetic chemicals used in industrial and consumer products that aid with resistance to moisture, grease, stains, and fire.[2] These substances have been linked to a range of adverse health outcomes and have been widely detected in soil, surface water, and drinking water.[3] Despite the CWA providing the Environmental Protection Agency (“EPA”) with robust regulatory mechanisms, such as National Pollutant Discharge Elimination System (“NPDES”) permits and Effluent Limitation Guidelines (“ELGs”), federal action that meaningfully addresses PFAS has historically been limited.[4]
This article examines the application of the CWA to PFAS and assesses recent regulatory developments regarding these substances. Part I provides background on the chemical properties, uses, and risks associated with PFAS. Part II analyzes the CWA’s mechanisms as they pertain to PFAS. Part III highlights recent federal regulatory activities and policy developments concerning PFAS under the CWA framework.
1. PFAS
PFAS are a large group of synthesized chemical compounds characterized by a fluoroalkyl chain in which carbon atoms are bonded to fluorine atoms.[5] This carbon-fluorine bond is one of the strongest bonds in nature, making these chemicals exceptionally resistant to heat, water, grease, and stains, while simultaneously making them immune to biodegradation.[6] As a result, PFAS remain highly persistent in their environment.
PFAS’ ability to resist moisture, grease, and fire has made them enticing chemicals for use in a variety of products. For example, since the 1940s, PFAS have been used in non-stick cookware, food packaging, mobile phones, cosmetics, and the aqueous film-forming foams used in firefighting.[7] Today, PFAS are used in many everyday household products, including kitchen and food packaging, household cleaners and paints, water-resistant clothing, carpets, furniture fabrics, mattresses, and personal care products like dental floss, waterproof cosmetics, sunscreen, and nail polish.[8]
PFAS have also become nearly ubiquitous in the environment, appearing in soil, surface water, the atmosphere, and the blood of more than 97 percent of Americans.[9] Specifically, the PFAS released into the environment during manufacturing, use, and disposal persist for decades.[10] Notably, these substances are also mobile in water, and surface waters have been found to contain some of the highest PFAS concentrations.[11]
Exposure to PFAS has been linked to an array of adverse health effects, including cancer, liver damage, immune system suppression, and growth defects in children.[12] Research has also linked PFAS exposure to obesity, insulin resistance, and thyroid malfunction.[13] These cumulative health risks, combined with PFAS’s persistence and bioaccumulation potential, underscore the urgency of addressing their presence in the environment. The environmental distribution of PFAS also raises significant environmental justice concerns, as the industrial facilities and airports that serve as point sources for these substances are disproportionately located near low-income communities and communities of color.[14]
2. Applying the Clean Water Act to PFAS
Enacted in 1972, the CWA establishes the basic federal framework for regulating pollutant discharges into United States waters. The Act defines “pollutant” broadly to include substances, such as chemical and industrial wastes, sewage, and biological materials, that are discharged into the nation’s water,[15] granting EPA the authority to regulate diverse point-source discharges from industrial, municipal, and other facilities.[16] The CWA also establishes two primary regulatory mechanisms: the National Pollutant Discharge Elimination System (“NPDES”) permit program and Effluent Limitation Guidelines (“ELGs”).[17]
The NPDES program requires facilities to obtain permits before discharging pollutants from point sources into United States waters.[18] NPDES permits establish enforceable limits on the type and quantity of pollutants that may be discharged, while also typically including monitoring, recordkeeping, and reporting requirements that are designed to ensure compliance, protect water quality, and maintain human health.[19] These permits may also outline ideal management practices or other operational requirements aimed to minimize environmental harms.[20]
In addition to permitting requirements, the CWA employs technology-based ELGs, which set the maximum levels of pollutants that facilities within specific industrial categories may discharge.[21] ELGs are based on the performance of available pollution control technologies and are incorporated into individual NPDES permits.[22] While facilities are not required to implement the specific technologies identified in ELGs, they must comply with these guidelines’ established discharge limits.[23]
Although the CWA’s regulatory system has significantly reduced conventional industrial pollution, the Act faces structural limitations that hinder its responsiveness to emerging contaminants like PFAS. For example, developing or revising ELGs can be a slow and resource-intensive process.[24] Before establishing new limits, EPA must gather data regarding the prevalence and sources of specific pollutants, evaluate available treatment technologies, and assess the economic implications of those technologies.[25]
These challenges are particularly acute for PFAS, which present distinct regulatory hurdles. Unlike more discrete pollutants, PFAS comprise a class of over 9,000 chemicals, many of which are proprietary and remain poorly understood.[26] As a result, regulators often lack comprehensive data[27] and must then rely on industry-reported information, complicating efforts to establish uniform standards.[28] Historically, the absence of standardized testing methods and consistent federal requirements has also produced a fragmented, state-by-state reporting regime, leaving significant gaps in nationwide data.[29] Together, these factors delay the development of comprehensive regulatory standards and illustrate how difficult it is to apply the CWA framework to complex and evolving chemical classes, like PFAS.
Additionally, the CWA requires EPA to balance the costs of achieving effluent reductions with the corresponding environmental benefits when setting technology-based ELGs.[30] While this approach reflects Congress’s effort to balance environmental protection with economic feasibility, it can further slow regulatory action when costs are uncertain or politically contested.[31] In the case of PFAS, industry opposition and debate over the economic implications of broad controls have significantly shaped regulatory efforts, particularly given the widespread use of these chemicals across multiple sectors and the potential costs of compliance.[32] These structural and informational constraints explain why the CWA may struggle to address emerging contaminants like PFAS.
3. Recent Regulatory Developments on PFAS under the CWA
As synthetic chemical compounds that can enter waterways through industrial and wastewater discharges, PFAS fall squarely within the CWA’s broad definition of “pollutant.” However, the lack of PFAS-specific ELGs has constrained EPA’s use of the CWA as a regulatory tool to combat PFAS pollution.[33] Although EPA possesses the authority to regulate PFAS, meaningful regulatory action has been limited, reflecting both the slow pace of ELG development and limited data on PFAS’s occurrence and toxicity.[34]
In 2019, EPA initiated a series of efforts aimed at addressing PFAS-related informational and regulatory gaps, signaling a shift toward greater engagement with the substances under the CWA. EPA’s 2019 PFAS Action Plan outlined short- and long-term goals,[35] which were subsequently elaborated on in the agency’s 2021 PFAS Strategic Roadmap.[36] These strategies emphasized research, monitoring, and regulatory development, and they were eventually completed with a 2022 guidance memorandum addressed to the states, which explicitly described how NPDES permits could be used to reduce PFAS pollution.[37]
Consistent with this emphasis on data generation and monitoring, EPA finalized analytical methods for detecting PFAS in wastewater and other environmental media in 2024, and the agency published its science-based water quality concentrations and benchmarks for ten PFAS to guide state and tribal efforts to protect aquatic life.[38] These water quality concentrations encompass EPA’s recommended criteria; however, they are not regulatory and do not impose legally binding requirements.[39]
EPA has since taken additional steps to translate these priorities into practice, primarily by continuing to expand its monitoring and data collection requirements. In 2025, the agency issued a draft Multi-Sector General Permit (“MSGP”) that would require operators in twenty-three industrial sectors to monitor forty PFAS compounds in areas where EPA has NPDES permitting authority.[40] Simultaneously, EPA developed methods to detect forty PFAS compounds in wastewater, surface water, groundwater, soil, and sludge, supporting future permit requirements and regulatory revisions.41] The agency also signaled its intent to update NPDES permits to require the monitoring and reporting of PFAS in November 2025, but this proposal has not yet been issued.[42] Moving forward, EPA plans to propose revisions to the Organic Chemicals, Plastics, and Synthetic Fibers (“OCPSF”) ELGs in 2026, a category that will include PFAS.[43]
Taken together, these efforts reflect a regulatory strategy that prioritizes information gathering and incrementally integrating PFAS into existing CWA mechanisms, rather than immediately establishing enforceable discharge limits. While this approach has expanded the scientific and technical foundation for future regulation, it has also prolonged the absence of binding ELGs, leaving significant PFAS discharges unregulated. Accordingly, EPA’s recent actions illustrate the CWA framework’s adaptability and limitations: although the statute can accommodate emerging contaminants, its reliance on data- and resource-intensive processes may delay meaningful regulatory intervention despite widespread and persistent pollution.
Conclusion
The regulation of PFAS under the CWA illustrates the structural and practical challenges EPA faces in addressing emerging contaminants. Although the Act provides EPA with the broad authority and flexible regulatory tools capable of addressing PFAS, the absence of enforceable effluent limits, combined with historically limited data, has constrained meaningful intervention and allowed contamination to persist. EPA’s recent shift toward a more monitoring-intensive approach reflects an important effort to build the scientific foundation necessary for regulation. However, this change underscores the limitations of an incremental strategy that prioritizes data collection over immediate controls. Without the timely development of binding discharge limits and due to their widespread use, PFAS pollution is likely to continue. To fulfill the CWA’s core objective of protecting the integrity of the nation’s waters, EPA should move beyond monitoring and guidance and toward the establishment of concrete, enforceable limits on PFAS discharges.
Alisha Adams is an attorney in the Environmental and Regulatory section of Jackson Walker’s Austin office. She is experienced in regulatory and complex environmental litigation matters in both state and federal courts and in arbitration proceedings, including identification and mitigation of environmental risks, navigating the permitting processes, and defending clients in administrative enforcement actions.
Blair Buchanan is a recent graduate of the University of Texas School of Law. While in law school, Blair researched many topics related to environmental and administrative law, including NEPA litigation and policy under Prof. David Adelman.
[1] 33 U.S.C. § 1251(a).
[2] Jackson D. Vause, PFAS in Charleston S.C.: A Review of Pollution, Regulatory Issues and Potential Solutions, 75 S.C.L. Rev. 759, 761 (2024). The Environmental Protection Agency’s PFAS datasets have identified and labeled over 12,000 substances as PFAS in the United States. Gar N. Lauerman & Scott M. Seaman, An Updated Primer on PFAS/Forever Chemical Claims: Regulation, Litigation, Large Losses, and Insurance Coverage Issues, Hinshaw & Culbertson LLP (Nov. 14, 2024), https://www.hinshawlaw.com/newsroom-updates-insights-for-insurers-pfas-forever-chemical-regulation-litigation-insurance-coverage.html [https://perma.cc/GYK3-MVVH]; Maria-Eleni Dimitrakopoulou et al., Comprehensive Analysis of PFAS Presence from Environment to Plate, 8 npj Sci. Food art. no. 80, at 2 (2024), https://doi.org/10.1038/s41538-024-00319-1.
[3] Our Current Understanding of the Human Health and Environmental Risks of PFAS, Env’t Prot. Agency (July 14, 2026), https://www.epa.gov/pfas/our-current-understanding-human-health-and-environmental-risks-pfas [https://perma.cc/6LZU-V6KB].
[4] Recent EPA actions signal a shift toward a more assertive use of CWA authority to regulate PFAS discharges. However, EPA has not designated any PFAS as toxic pollutants or hazardous substances. Vause, supra note 2, at 770.
[5] Lauerman & Seaman, supra note 2.
[6] See What Are PFAS Compounds and How Can We Test for Them?, Enviroforensics (Apr. 30, 2026), https://www.enviroforensics.com/blog/what-are-pfas-compounds-and-how-can-we-test-for-them/ [https://perma.cc/WJ3U-FG6Z].
[7] Env’t Prot. Agency, supra note 3.
[8] Id.
[9] Nat’l Inst. of Env’t Health Scis., Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS) (Mar. 6, 2026), https://www.niehs.nih.gov/health/topics/agents/pfc [https://perma.cc/3PY7-XL77].
[10] PFAS and Food Packaging – FAQ, CHEMTrust, https://chemtrust.org/pfas-food-packaging-faq/ [https://perma.cc/4WPC-ELEE] (last visited Sept. 8, 2026).
[11] Dimitrakopoulou et al., supra note 2, at 1.
[12] Carol Kwiatkoski et al., Scientific Basis for Managing PFAS as a Chemical Class, 7 Env’t Sci. & Tech. Lett. 532 (2020), https://doi.org/10.1021/acs.estlett.0c00255.
[13] Lore Jane L. Espartero et al., Health-Related Toxicity of Emerging Per- and Polyfluoroalkyl Substances: Comparison to Legacy PFOS and PFOA, 212 Env’t Rsch. art. no. 113431, at 3 (2022), https://doi.org/10.1016/j.envres.2022.113431.
[14] Vause, supra note 2, at 765–66.
[15] 33 U.S.C. § 1362(6) (2018).
[16] See 33 U.S.C. § 1342.
[17] NPDES Permit Basics, Env’t Prot. Agency (July 22, 2026), https://www.epa.gov/npdes/npdes-permit-basics [https://perma.cc/YFD2-NQYW]; Effluent Guidelines Plan, Env’t Prot. Agency (Nov. 25, 2025), https://www.epa.gov/eg/effluent-guidelines-plan [https://perma.cc/53UE-EYU9].
[18] Summary of the Clean Water Act, Env’t Prot. Agency (Feb. 23, 2026), https://www.epa.gov/laws-regulations/summary-clean-water-act [https://perma.cc/88DJ-8W3A].
[19] Env’t Prot. Agency, NPDES Permit Basics, supra note 17.
[20] Id.
[21] PFAS manufacturers and formulators fall under the Organic Chemicals, Plastics, and Synthetic Fibers (OCPSF) category. Organic Chemicals, Plastics, and Synthetic Fibers Effluent Guidelines, Env’t Prot. Agency (May 8, 2026), https://www.epa.gov/eg/organic-chemicals-plastics-and-synthetic-fibers-effluent-guidelines [https://perma.cc/T8H9-WV48].
[22] Where EPA has not established ELGs for a particular pollutant or industry category, permitting authorities may impose limits on a case-by-case basis using their “best professional judgment.” Cong. Rsch. Serv., R45998, Contaminants of Emerging Concern Under the Clean Water Act 14 (2019).
[23] Federal PFAS Regulation: 2025 Activities and 2026 Anticipated Actions, BCLP (Feb. 17, 2026), https://www.bclplaw.com/en-US/events-insights-news/federal-pfas-regulation-2025-activities-and-2026-anticipated-actions.html [https://perma.cc/D3R8-B8DM].
[24] Vause, supra note 2, at 777.
[25] Id.
[26] Espartero et al., supra note 13, at 2, 4.
[27] While certain legacy compounds, such as perfluorooctanoic acid (“PFOA”) (used in non-stick cookware, stain-resistant fabrics, and firefighting foams) and perfluorooctanesulfonic acid (“PFOS”) (used to make products stain-, grease-, and water-resistant) have been heavily studied, most of the emerging PFAS substitutes remain understudied. Espartero et al., supra note 13, at 4.
[28] See Vause, supra note 2, at 777.
[29] PFAS Analytic Tools, Env’t Prot. Agency (Feb. 4, 2026), https://echo.epa.gov/trends/pfas-tools [https://perma.cc/BWP3-24NX].
[30] The determination of whether to revise ELGs is subject to a cost benefit analysis on “the reasonableness of the relationship between the costs of attaining a reduction in effluents and the effluent reduction benefits derived.” 33 U.S.C. § 1314(b).
[31] Vause, supra note 2.
[32] See, e.g., Natalie Balbuena and Mia DiFelice, The Multi-Million-Dollar Effort to Sway Lawmakers on PFAS, Food & Water Watch (Nov. 7, 2023), https://www.foodandwaterwatch.org/2023/11/07/pfas-lobbying/ [https://perma.cc/MM4T-GF8R].
[33] See Cong. Rsch. Serv., IF12148, Regulating PFAS Under the Clean Water Act (2026).
[34] See Richard Leahy, PFAS and the EPA Strategic Roadmap: Progress and Challenges, Harv. L. Sch., Env’t. & Energy L. Program (Jan. 13, 2025), https://eelp.law.harvard.edu/pfas-and-the-epa-strategic-roadmap-progress-and-challenges/ [https://perma.cc/4L54-XFTE].
[35] Env’t Prot. Agency, EPA’s Per- and Polyfluoroalkyl Substances (PFAS) Action Plan 2–7 (Feb. 2019), https://19january2021snapshot.epa.gov/sites/static/files/2019-02/documents/pfas_action_plan_021319_508compliant_1.pdf [https://perma.cc/L5VB-AQSE].
[36] Env’t Prot. Agency, PFAS Strategic Roadmap: EPA’s Commitments to Action 2021–2024 (Oct. 2021), https://www.epa.gov/system/files/documents/2021-10/pfas-roadmap_final-508.pdf [https://perma.cc/3UGP-38BC].
[37] See Memorandum from Env’t Prot. Agency Assistant Administrator Radhika Fox on PFAS Discharges in NPDES Permits and the Pretreatment Program and Monitoring Programs to Env’t Prot. Agency Regional Water Division Directors (Dec. 5, 2022), https://www.epa.gov/system/files/documents/2022-12/NPDES_PFAS_State%20Memo_December_2022.pdf [https://perma.cc/5UAE-FRBW].
[38] Final Recommended Aquatic Life Criteria and Benchmarks for Select PFAS, 89 Fed. Reg. 81077 (Oct. 7, 2024).
[39] Key EPA Actions to Address PFAS, Env’t Prot. Agency (July 1, 2026), https://www.epa.gov/pfas/key-epa-actions-address-pfas [https://perma.cc/G5EY-FFJG].
[40] BCLP, supra note 23.
[41] Env’t Prot. Agency, supra note 39; BCLP, supra note 23.
[42] BCLP, supra note 23.
[43] BCLP, supra note 23.