With bipartisan support, the Senate passed legislation to repeal a new Waters of the U.S. (WOTUS) rule expanding federal permitting jurisdiction over wetlands and more construction projects.
On March 29, four Senate Democrats—Sens. Cortez Masto (Nev.), Manchin (W.Va.), Rosen (Nev.), Tester (Mont.)—and Senator Sinema (I-Arizona) joined Republicans in voting for legislation to repeal the Biden administration’s Waters of the U.S. (WOTUS) rule expanding federal permitting jurisdiction over wet areas and more construction projects. The House passed the repeal measure on March 9. The president is expected to veto the WOTUS rule repeal bill and Congress will not have enough votes to override the veto, thereby keeping the rule in place.
The significance, however, of such legislation passing both the House and Senate is that it shows the courts that Congress holds that the Administration exceeded its authority under the Clean Water Act in issuing this new rule. When the Senate voted in favor of repealing the Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccination or testing emergency temporary standard (ETS) in 2022, the U.S. Supreme Court cited that vote as evidence that Congress found OSHA exceeded its statutory authority in issuing the ETS. The Court, in that decision, struck down the ETS.
On March 19, AGC, Farm Bureau and other groups backed litigation successfully halted the WOTUS rule from taking effect in Texas and Idaho. AGC recently intervened in a case comprising of 24 states filed in North Dakota to block implementation of the rule in an effort to help even more construction projects. These votes in Congress bolster industry’s case against the WOTUS rule.
As he promised, President Joe Biden vetoed a joint resolution from Congress to overturn the administration’s WOTUS rule, likely dooming the measure to failure.
Both the House and Senate passed the Congressional Review Act (CRA) joint resolution of disapproval – the House by a 227-198 vote and the Senate, 53-43; neither margin is near the two-thirds needed to override a veto.
The WOTUS confusion continues.