Bloomberg Law
March 9, 2023, 9:57 PM

House-Passed Water Rule Baits Biden’s Veto With Absent Democrats

Kellie Lunney
Kellie Lunney

President Joe Biden could use his veto power soon for the second time on an environment measure because of the absence of Senate Democrats.

The House Thursday passed 227-198 a disapproval resolution (H.J. Res. 27) under the Congressional Review Act to scrap the Biden administration’s “Waters of the US” rule governing the extent of Clean Water Act protections for waters and wetlands nationwide. A handful of Democrats voted for the measure. The Senate plans to vote on the resolution (S.J. Res. 7) next week, and its sponsor Sen. Shelley Moore Capito (R-W.Va.) expects it to pass.

The interpretation over what qualifies as a body of water under WOTUS has been raging for about 15 years, with the definition narrowing or expanding depending on the administration.

View of the wetlands and marshes at Kenilworth Park and Aquatic Gardens in Washington, D.C., in December 2020.
Photographer: Eva Hambach/AFP via Getty Images

Senate absences over the past few weeks have posed challenges for Democrats. Sens. Dianne Feinstein (D-Calif.) and John Fetterman (Pa.) have both been away from Capitol Hill for health reasons. Feinstein is recovering from shingles and Fetterman has been receiving in-patient treatment for depression at Walter Reed National Military Medical Center.

Democrats hold a slim majority, 51-49, in the Senate, and Sen. Joe Manchin (D-W.Va.) has said he will vote with Republicans on the WOTUS resolution. If Feinstein and Fetterman both remain out next week, and all Republicans plus Manchin support the resolution, it will pass the Senate.

The White House said Biden would veto the measure if it reaches him. The resolution doesn’t clarify any definitions, the White House said in a statement, and would only increase uncertainty over water regulation, threatening economic growth, agriculture, and clean water in various jurisdictions.

‘States’ Rights and Common Sense’

Capito this week said Congress should act on reversing the Biden WOTUS rule despite the veto threat, in part because “it’s the right thing to do.”

Republicans have chafed at the broader WOTUS definition for years, saying it creates a regulatory burden and uncertainty for farmers, property owners, and small businesses. Opponents of the Republican-led resolution, including Democrats and green groups, said it will roll back critical environmental protections for clean water across the country.

“No matter what the Venn diagram of attendance looks like, this is something the president will veto,” said Sen. Martin Heinrich (D-N.M.), who opposes the disapproval resolution. Heinrich said Republicans are wasting time on a process that “they know is not going to create an actual outcome on the ground.”

Rep. Melanie Stansbury (D-N.M.), who has a background in water, climate, and sustainable development issues, said the resolution would strip protections for waters in New Mexico. “This resolution would repeal protections that safeguard 93% of our waters from pollution with profound consequences for our New Mexico, one of only a handful states that rely on these federal protections and enforcement,” she said.

The Biden rule, which takes effect Mar. 20, essentially reinstates an Obama-era regulation that provided an expansive view of what qualifies as federal navigable waters, including wetlands and other smaller bodies of waters, giving the government a stronger say in environmental protection.

Most of the provisions of the rule were in effect during the George W. Bush and Obama administrations, until Obama expanded it in 2015 and Trump lifted many of the protections in 2020 with the Navigable Waters Protection Rule. Federal courts vacated the Trump rule in 2021, prompting Biden to revise it again.

The Supreme Court heard oral arguments on the issue in October in Sackett v. EPA and is expected to rule on the case this year.

Sen. Cynthia Lummis (R-Wyo.), who supports the resolution, said the definition of WOTUS has to be addressed. “We cannot let the rulemaking processes of the EPA whipsaw states on WOTUS,” she said this week. Lummis said it isn’t a partisan issue but a “states’ rights and common-sense issue.”

To contact the reporter on this story: Kellie Lunney in Washington at

To contact the editors responsible for this story: Anna Yukhananov at; Andrew Small at