April 10, 2023 — The Waters of the United States (WOTUS) rule defines which wetlands and waterways qualify for federal protection, an ongoing issue for those in agriculture and development industries was finalized in December. Previous versions of the rule under former Presidents Trump and Obama faced legal challenges and significant opposition from political rivals. In contrast, Biden’s proposal largely reinstates protections from the Reagan era and is promoted as a “durable” compromise.

Republicans have strongly opposed the rule, attempting to nullify it through the Congressional Review Act, which enables a simple majority vote to overturn recent regulations.

In the House, the vote passed 227-198, with nine Democrats siding with the opposition. In the Senate, the number of dissenting Democrats was smaller, with four, including Sen. Joe Manchin of West Virginia, supporting the WOTUS reversal in a final 53-43 vote.

Biden, who had promised to veto the measure, did so on Thursday afternoon. He stated that the “increased uncertainty” caused by the resolution “would threaten economic growth, including for agriculture, local economies, and downstream communities.”

With the President’s veto in place, a WOTUS repeal can only be enacted if a two-thirds majority in both the House and Senate vote to override the veto. Garnering additional Democratic support in both chambers seems highly improbable. Nevertheless, the vote provides Republicans an opportunity to emphasize their position on a matter crucial to numerous agricultural producers.

House Agriculture Committee Chair GT Thompson, R-Pa., chastised the president for disregarding the bipartisan votes in the House and Senate that favored a rule he deems “disastrous.”  According to Feedstuffs, Thompson stated, “America’s farmers, ranchers, and landowners have made it clear that this WOTUS definition is overly burdensome and unworkable, only intensifying the regulatory uncertainty currently faced by rural communities.” He added, “By vetoing this resolution, President Biden has once again turned his back on rural America.”

WOTUS proponents hope that the rule will survive court challenges and remain in place. E&E Greenwire reports, “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. We fully support the president’s decision to enforce the Clean Water Act, which protects our country’s water quality.'”

The rule will find its way to the U.S. Supreme Court.  Currently on the docket is Sackett v. Environmental Protection Agency that addresses the limited question, “Whether the Ninth Circuit set forth the proper test for determining whether wetlands are “waters of the United States” under the Clean Water Act.  Coverage of the case is published on the SCOTUS blog.