The US Senate on March 29 voted 53-43 to approve a resolution overturning the Biden Administration’s “Waters of the United States” (WOTUS) rule. The vote follows a similar resolution passed by the House in late February (GM March 3, p. 26), which called the new WOTUS definition “flawed” and “overreaching.”
“We are sending a clear, bipartisan message that Congress, even a divided one, will defend working Americans in the face of executive overreach,” said Sen. Shelley Moore Capito (R-W.Va.), a bill sponsor and the top Republican on the Environment and Public Works Committee. “I urge President Biden not to overrule the will of a bipartisan majority in Congress, and instead draft a new rule that doesn’t unfairly penalize millions of Americans and jeopardize future growth in our country.”
Sens. Joe Manchin (D-W.Va.), Catherine Cortez Masto (D-Nev.), Jacky Rosen (D-Nev.), and Jon Tester (D-Mont.) voted for the bill, as did Sen. Kyrsten Sinema (I-Ariz.). Not voting were Sens. Chris Coons (D-Del.), Dianne Feinstein (D-Calif.), John Fetterman (D-Pa.), and Minority Leader Mitch McConnell (R-Ky.).
The earlier House resolution passed on a bipartisan 227-198 vote. Because neither chamber’s vote reached the two-thirds threshold, however, the White House has said President Biden plans to veto, Bloomberg reported.
Officially announced on Dec. 30 (GM Jan. 6, p. 1) by the US Environmental Protection Agency (EPA) and the Army Corps of Engineers, the new WOTUS rule claims to restore protections that were in place prior to 2015 under the Clean Water Act (CWA), but with “updates to reflect existing Supreme Court decisions, the latest science, and the agencies’ technical expertise.” The rule was published in the Federal Register on Jan. 18 and took effect on March 20.
Republicans are seeking to replace the rule with a bill introduced by Rep. Mary Miller (R-Ill.) and Sen. Mike Braun (R-Ind.) earlier this month that would narrow the WOTUS regulation, excluding rain-induced “ephemeral waters” and other small waterways from federal jurisdiction under the CWA.
“I am introducing the Define WOTUS Act with Senator Mike Braun to protect my fellow farmers and stand against the disastrous Biden EPA, which is working to regulate every pond and puddle in America,” Miller said in a March 10 statement.
The debate over which water bodies should be classified as WOTUS – and therefore under CWA jurisdiction – has been raging for 15 years, with the definition narrowing or expanding depending on the administration. Critics said the Biden rule essentially reinstated an Obama-era regulation that provided an expansive view of what qualifies as federal navigable waters, including wetlands and other smaller bodies of water.
The US Supreme Court heard oral arguments on the issue in October in Sackett v. EPA and is expected to rule on the case this year. The White House has pushed back against critics (GM March 10, p. 1), saying the new rule isn’t much different from the status quo, and any effort to overturn it would only increase uncertainty over water regulation and threaten economic growth, agriculture, and clean water in various jurisdictions.