U.S. Senate clears measure to undo Biden WOTUS rule on wetlands

WASHINGTON — Both Republican and Democratic members of the U.S. Senate voted Wednesday to repeal the Biden administration’s intensely contested expansion of what qualifies as wetlands that the federal government can regulate.

The Senate approved a resolution, sponsored by West Virginia Republican Shelley Moore Capito, that would revoke the U.S. Environmental Protection Agency’s definition of Waters of the United States, or WOTUS, for the purposes of federal regulation under the Clean Water Act. 

The Senate’s 53-43 vote, with Democrats Joe Manchin III of West Virginia, Jon Tester of Montana and Catherine Cortez Masto and Jacky Rosen of Nevada, as well as independent Kyrsten Sinema of Arizona, joining all Republicans voting to overturn the rule, sends the resolution to the desk of President Joe Biden. He has pledged to veto the measure. 

The resolution required only a simple majority for adoption, rather than the Senate’s usual 60-vote threshold, because Republicans forced a vote under the Congressional Review Act that allows for Congress to challenge recent executive branch decisions.

The EPA and the Army Corps of Engineers proposed the updated WOTUS definition in late 2021 and the final rule went into effect March 20.

Senate Republicans attacked the rule Wednesday as an example of regulatory overreach that would cause confusion for farmers and other private landowners.

“The Biden Administration’s latest version of the Waters of the United States is not some commonsense conservation measure,” Senate Minority Leader Mitch McConnell of Kentucky said in a statement. “It’s a radical power grab that would give federal bureaucrats sweeping control over nearly every piece of land that touches a pothole, ditch, or puddle.”

Farmers’ uncertainty about whether wetlands on their properties are subject to federal regulation would lead them simply to not farm, Capito, the ranking Republican on the Senate Environment and Public Works Committee, said.

Environment and Public Works Chairman Tom Carper, a Delaware Democrat, disagreed, saying the Biden rule is clearer than prior attempts at defining WOTUS under the Obama and Trump administrations. The rule is also fairer to farmers, he said, exempting 53 million acres of farmland from regulation.

“After multiple administrations’ failed attempts to create a lasting WOTUS definition, the 2023 Biden rule represents what I believe is a fair balance,” Carper said. “The rule protects the nation’s waters and wetlands and provides flexibility for those who need it. The Biden rule makes agricultural exemptions clearer and more consistent.”

Rosen, one of the Democrats who supported a repeal, said the matter should be covered by state regulations and regional governance — with Southwestern states having unique concerns.

“We have strong water regulations, and we think it’s a matter for regional governance,” Rosen told States Newsroom after the vote. “With our arid and our drought conditions, some of these things just are different for us.”  

Biden to veto

The U.S. House voted earlier this month to repeal the rule, but margins in both chambers would be insufficient to override Biden’s expected veto.

Nine House Democrats joined Republicans in that chamber’s March 10 vote. That group included Georgia Democrats David Scott and Sanford Bishop, who are the top Democrats on key agriculture committees, Capito noted on the Senate floor Wednesday.

If Biden did sign the resolution, it would reset the WOTUS regulation to before President Barack Obama’s administration issued a rule in 2015. Federal agencies would be blocked from enacting a similarly broad definition in the future, but could propose a narrower one, Capito, the ranking Republican on the Senate Environment and Public Works Committee, said.

But in a March 6 statement of administrative policy, the White House said revoking the Biden definition would only add to the uncertainty around the issue.

“The increased uncertainty would threaten economic growth, including for agriculture, local economies, and downstream communities,” the White House said. “Compared to the kind of uncertain, fragmented, and watered-down regulatory system that H.J. Res. 27 might compel, the final rule will secure substantial and valuable benefits each year.”

Another chapter

Federal water regulation, and the definition of WOTUS, has been a politically fraught issue for years.

Responding to longstanding confusion over what qualified as a water of the United States, the EPA under Obama in 2015 issued a regulation that any water that eventually drained into a navigable waterway or drinking water supply could be regulated by federal authorities.

Under President Donald Trump in 2020, the EPA significantly narrowed that definition, issuing the “navigable waters” standard.

Biden reopened the issue and claimed, as environmental advocates hoped, a broader definition that allowed for more robust enforcement.

The rule is unpopular with farmers and others who say that construction and maintenance on private property is much more difficult and time-consuming when permission from the federal government must be granted.

The Obama-era rule is being challenged by an Idaho couple at the U.S. Supreme Court, which is expected to rule on the case before the court adjourns in June.