Senate votes to overturn Biden water rule

By E.A. Crunden | 03/29/2023 04:15 PM EDT

Sens. Joe Manchin and Jon Tester were among the Democrats who joined Republicans to overturn the regulation. President Joe Biden is expected to veto it.

Kyrsten Sinema looking at a reporter while walking in the U.S. Capitol.

Sen. Kyrsten Sinema (I-Ariz.) supported a resolution against the Biden administration's water rule. Francis Chung/POLITICO

The Senate on Wednesday afternoon approved a resolution against the Biden administration’s signature water policy, in a move all but guaranteed to spark the president’s second veto ever.

In a 53 to 43 roll call, the Senate moved to overturn the recently finalized waters of the United States, or WOTUS, rule. Senate Energy and Natural Resources Chair Joe Manchin (D-W.Va.) and Sens. Kyrsten Sinema (I-Ariz.), Jon Tester (D-Mont.), Catherine Cortez Masto (D-Nev.) and Jacky Rosen (D-Nev.) joined Republicans in supporting the measure.

“The Biden administration WOTUS rule tells states and individuals that the federal government knows best. It is true to form for this administration,” said Sen. Shelley Moore Capito (R-W.Va.), who has helped lead the Senate opposition to the regulation.


Overturning the rule, she said, would be a step toward “setting predictable reliable policy for America’s farmers and ranchers.”

Democrats fired back and accused Republicans of undercutting water quality.

“We cannot afford to turn back the clock on these protections for our nation’s waters and those who depend on them,” said Senate Environment and Public Works Chair Tom Carper (D-Del.).

Carper argued that gutting WOTUS would deal a fundamental strike at the Clean Water Act, while the Biden rule offered what he called a “commonsense” approach.

Mark Kelly a ‘no’

One vulnerable Democrat facing a tough reelection campaign opted to stick with his party. Arizona Sen. Mark Kelly’s vote had previously been an open question, but during a recent hearing, he repeatedly questioned the use of the Congressional Review Act to target WOTUS.

The CRA allows for a simple majority to overturn recent rules, but also hinders the government’s ability to pursue a similar rule. Kelly expressed concern the resolution might unravel any efforts to make Clean Water Act enforcement suitable to states like his.

The Senate vote and a similar successful roll call in the House follows months of uproar over WOTUS, finalized at the end of last year by EPA and the Army Corps of Engineers. That rule lays out which wetlands and waterways merit federal protection, a long-contested issue that has consistently sparked ire from agricultural and development interests.

Litigation previously entangled definitions put forth by the Obama and Trump administrations, and ultimately helped doom both of those rules. The Biden rule largely revives Reagan-era protections and has been presented as a “compromise” that will be durable and withstand legal challenges.

That has failed to head off heated opposition, however, and two states — Texas and Idaho — have already succeeded in securing an injunction blocking the rule from taking effect within their borders.

Those states are currently operating under 1986 regulations until Sackett v. EPA, a major Supreme Court case, is decided. The outcome of that case could significantly narrow the scope of EPA’s authority under the Clean Water Act and send agencies back to redo major elements of WOTUS.

Biden has already been forced to use his veto pen once this year, for a separate environmental resolution. Congress used CRA to strike at a Labor Department rule allowing fiduciaries to consider environmental, social and governance factors when choosing retirement plans. Biden nixed that measure.