The Senate on Wednesday passed a resolution to overturn the Biden administration’s “waters of the U.S.” rule, 53-43, sending the measure to the White House for what President Joe Biden has already promised will be a veto.
Four Democrats voted in the affirmative: Joe Manchin of West Virginia, Catherine Cortez Masto and Jacky Rosen of Nevada, and Jon Tester of Montana. Kyrsten Sinema, an Independent from Arizona who caucuses with the Democratic majority, also voted for the resolution.
The joint resolution cleared the House March 9 in a 227-198 vote with the support of nine Democrats. Neither the House nor Senate margin is close to the two-thirds needed to override a veto — 290 in the House and 67 in the Senate.
Congressional Republicans and many farm groups have criticized the EPA for moving forward with new WOTUS rulemaking while a looming Supreme Court opinion could ultimately change regulation's reach.
In a March 6 Statement of Administration Policy, the White House said Biden would veto the joint resolution if it reached his desk.
“The final rule provides clear rules of the road that will help advance infrastructure projects, economic investments, and agricultural activities — all while protecting water quality,” the SAP says.
Republican senators who spoke on the floor Wednesday characterized it differently.
Shelley Moore Capito, R-W.Va., ranking member of the Environment and Public Works Committee, said the administration had “overstepped its boundaries” and written a rule that will lead to “more uncertainty” for regulated industries, including agriculture.
Sen. Roger Marshall, R-Kan., defended Kansas landowners, including farmers, and decried “D.C. bureaucrats.”
“It seems this administration only listens to radical environmentalists,” he said.
But Environment and Public Works Committee Chairman Tom Carper, D-Del., defended the rule as a “common sense” regulation and said returning to an earlier regulatory regime would itself cause confusion and uncertainty for regulated industries.
“The 2023 Biden rule represents what I believe is a fair balance,” he said, and includes “flexibility for those who need it. It thoughtfully responds to many of the concerns of the agricultural community,” such as by enshrining an exemption for prior converted cropland.
Implementation of both the Obama administration’s 2015 rule and the Trump administration’s 2020 Navigable Waters Protection Rule were stymied by the courts. The Biden rule, EPA Administrator Michael Regan has said, is an attempt to find a middle ground between those two rules that can withstand legal scrutiny.
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However, aarray of agricultural and other trade associations are just as opposed to the Biden rule as they were to the Obama rule, and they and about half the states have sued to block it.
Outside of Idaho and Texas, where a federal judge enjoined the rule, new WOTUS language became effective March 20. But opponents have said, as they did on the Senate floor Wednesday, that EPA and the Army Corps of Engineers should have waited until the Supreme Court issues its ruling in Sackett v. EPA, a Clean Water Act case argued in October.
At a House hearing this week, Regan said he expects EPA will be able to take the court's ruling into account.
“We can adjust if the Supreme Court rules this summer,” he told the House Interior and Environment Appropriations Subcommittee on Tuesday.
Last week, Regan offered similar thoughts to the Senate Environment and Public Works Committee, telling the panel EPA had “threaded a very good needle” with the new WOTUS rule.
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