Bloomberg Law
Feb. 28, 2023, 5:28 PM

Biden’s Rule on Clean Waters Draws Rebuke From House Committee

Bobby Magill
Bobby Magill
Kellie Lunney
Kellie Lunney
Lillianna Byington
Lillianna Byington

A House committee voted Tuesday to scrap the Environmental Protection Agency’s new definition of waters of the US, using the Congressional Review Act.

The final rule, published by the Army Corps of Engineers and the EPA in January in the Federal Register, takes effect on Mar. 20 and is the latest version of a regulation governing the extent of Clean Water Act protections for waters and wetlands nationwide. The so-called WOTUS definition has shifted in each administration since 2008.

Rep. Sam Graves (R-Mo.), chairman of the committee, said the new definition “places costly and unclear burdens” on farmers, small businesses and others. Democrats at the hearing backed the Biden administration’s rule.

The House Transportation and Infrastructure Committee vote readies the measure (H. J. Res. 27) for consideration on the floor of the Republican-controlled House. Under the Congressional Review Act, lawmakers can vote to overturn a president’s action with simple majorities in both chambers. The Senate’s Republican minority can force a vote if they have sufficient backing.

The 2023 WOTUS rule mostly reverts Clean Water Act wetlands jurisdiction to its status before the Obama administration expanded it in 2015. The Trump administration lifted many of those protections with its Navigable Waters Protection Rule, but after federal courts vacated that rule, the Biden administration returned the WOTUS definition to its pre-2015 status with some tweaks.

The Supreme Court is expected to consider the principles that underlie the WOTUS definition in its ruling in Sackett v. EPA. The justices are expected to question the “significant nexus” test, which the EPA is using to determine which wetlands are considered federally-protected, and possibly force the Biden administration to change the new rule. The court is expected to rule anytime before the end of its current term.

Republicans have chafed at the broader WOTUS definition for years, saying it creates a regulatory burden. All 48 GOP senators, as well as 158 House Republicans, filed a joint resolution (S. J. Res. 7; H. J. Res. 27) of disapproval in early February.

Republican Senator Looks to Farm Bill to Undo Biden Water Rule

Sen. Martin Heinrich (D-N.M.), who supports the Biden WOTUS rule, was skeptical any Democrat would back the GOP resolution to roll back the new rule. “It would be a very short list,” he said, adding that it “won’t be me.” Heinrich recalled earlier this month that when he argued in favor of the 2015 Obama WOTUS rule within the Democratic caucus, the only members who were against it then were former Sens. Joe Donnelly (Ind.) and Heidi Heitkamp (N.D.).

Committee Agenda

The committee also voted by voice vote to approve its oversight agenda. The Republican-led panel is planning to crack down on the Biden administration’s handling of laws, including the infrastructure package (Public Law 117-58) and the Inflation Reduction Act (Public Law 117-169). Lawmakers plan hearings on “waste, fraud, or mismanagement in government programs,” the agenda said.

Lawmakers on the panel also approved by voice vote its budget views and estimates, mapping out the committee’s goal to identify legislative opportunities to modify, reduce or scrap inefficient programs under its jurisdiction.

The budget document also laid out the panel’s focus on reauthorizing programs, including the Federal Aviation Administration, the National Transportation Safety Board, the United States Coast Guard, the Maritime Administration, pipeline safety, and water resources development projects.

To contact the reporters on this story: Bobby Magill at; Kellie Lunney in Washington at; Lillianna Byington in Washington at

To contact the editors responsible for this story: Zachary Sherwood at; Robin Meszoly at

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