Vetoed but not forgotten: What’s next for WOTUS?

By E.A. Crunden | 04/07/2023 01:08 PM EDT

A decisive rejection from the president has preserved the “waters of the U.S.” regulation for now, but threats remain.

Rep. Sam Graves (R-Mo.).

House Transportation and Infrastructure Chair Sam Graves (R-Mo.) at the Capitol last month. Francis Chung/POLITICO

The fate of the Biden administration’s signature water rule remains unclear even after the president’s second-ever veto issued a stern rebuke to Congress this week.

Republican lawmakers pushed almost immediately for a veto override targeting the “waters of the U.S.,” or WOTUS, rule on Thursday in the hours after President Joe Biden nixed a resolution that would roll it back. While Congress almost certainly lacks the votes for such an effort, enraged GOP members lashed out at the White House.

“Once again, President Biden has chosen to side with far-left environmental activists over everyday Americans, as well as majorities in both Houses of Congress,” said House Transportation and Infrastructure Chair Sam Graves (R-Mo.). “This veto is just the latest regulatory assault on America’s families, farmers, small businesses, builders, and entire communities already suffering under the President’s disastrous policies of the last two years.”


Graves, who helped lead the resolution’s passage in the House, called on more Democrats to join with Republicans in assisting a veto override, arguing they should “recognize the economic pain that these kinds of costly, overreaching policies are inflicting on Americans across the country.”

In a bold assertion, Graves and Water Resources and Environment Subcommittee Chair David Rouzer (R-N.C.) also said they “look forward” to a veto override that would assure the rule from EPA and the Army Corps of Engineers is formally scrapped.

Sen. Shelley Moore Capito (R-W.Va.), the ranking member for the Environment and Public Works Committee, did not go as far but did slam the move.

“There’s a reason those who work in agriculture, building, mining, and small businesses of all kinds across America strongly supported our effort to block the Biden waters rule, and I’m disappointed the president chose to stand by his blatant executive overreach,” she said in her own statement.

That the resolution of disapproval even cleared Congress is notable.

Finalized last December, WOTUS lays out which wetlands and waterways merit federal protections, long a source of consternation for industry members in agriculture and development. Prior iterations of the rule issued under former Presidents Donald Trump and Barack Obama lingered in court limbo and faced major pushback from their political adversaries. Biden’s offering, by contrast, largely restores Reagan-era protections and has been presented as a “durable” compromise.

But Republicans have raged over the rule and sought to nullify it via the Congressional Review Act, which allows for a simple majority vote to overturn recent regulations.

In the House, it cleared by a vote of 227-198, with nine Democrats defecting. That number was smaller in the Senate, with four Democrats including Sen. Joe Manchin of West Virginia backing the WOTUS overturn in an ultimate 53-43 vote.

Biden had pledged to veto the measure and did so Thursday afternoon, saying the “increased uncertainty” presented by the resolution “would threaten economic growth, including for agriculture, local economies, and downstream communities” (E&E News PM, April 6).

The move came mere weeks after his first veto, which dealt with a similar resolution targeting a Labor Department policy around sustainability and retirement funds. Republicans in Congress attempted to override that veto but fell short in a 219-200 vote last month, largely along party lines.

Despite that turn of events, the fate of WOTUS remains murky as ever. Many of the rule’s critics have hinged their hopes on the outcome of a Supreme Court case, Sackett v. EPA, that could have dire implications for the policy depending on how justices rule.

That case involving an Idaho couple is pushing for a more limited interpretation of EPA’s authorities under the Clean Water Act, one that is less protective of many of the nation’s waters. And while it is far from assured how the Supreme Court will rule, its conservative slant has empowered GOP officials and industry groups alike as they seek to freeze the rule before the case is decided.

At least two states have had success in their efforts: Texas and Idaho secured an injunction on March 20, the day WOTUS took effect in the rest of the country. Those states are now subject to 1986 regulations, while the other 48 states are operating under the Biden administration’s definition — a split that has left the regulated community baffled as to how to operate nationally (Greenwire, March 20).

Another challenge involving a slew of GOP-led states is pending in North Dakota, while a third lawsuit met with defeat earlier this week in Kentucky. Even that litigation has already returned, however, with Kentucky officials and industry groups having already filed a request in the U.S. District Court for the Eastern District of Kentucky asking Judge Gregory Van Tatenhove to reconsider (Greenwire, April 5).

But WOTUS proponents have stuck behind the rule, hoping it will survive court challenges and remain in place. Many saluted Biden’s veto Thursday as a critical defensive move safeguarding U.S. waters and upholding the government’s statutory obligations.

Caitlin Wall, who directs water conservation policy work for Audubon, asserted in a statement that the Biden administration was well within its authority under the Clean Water Act to issue and finalize WOTUS.

“As climate change, drought and development squeeze our water resources further, we need to protect all remaining waterways — including wetlands and seasonal streams — from pollution and degradation,” said Wall. “We fully support the president’s decision to enforce the Clean Water Act, which protects our country’s water quality.”