A Republican-led attempt to overrule President Biden on clean water regulation failed in the House on Tuesday on a 227-196 roll call that fell well short of the two-thirds majority needed for passage. As a result, the administration’s waters of the United States rule remains on the books, although under challenge in federal court.
In addition, the Supreme Court was expected to rule soon on an Idaho case that would reduce wetlands protection to territory with a direct surface connection to waterways. The Biden administration rule, issued in late 2022, uses the “significant nexus” test to identify wetlands that was created by the Supreme Court in 2006.
With the aid of a few Democrats, congressional Republicans passed a so-called resolution of disagreement last month to void the Biden WOTUS rule. Biden vetoed the resolution on April 6. The House attempt to override the veto attracted the same number of “yes” votes as the original vote on the resolution. Ten Democrats joined 217 Republicans in voting to override. One Republican and 195 Democrats voted to sustain the veto.
Biden has vetoed two resolutions of disapproval and prevailed in override votes on each of them in the House. More of the resolutions are pending in the House. The House Natural Resources Committee, for example, discussed on Tuesday three resolutions of disagreement on Endangered Species Act rules.
Two federal judges have issued preliminary injunctions against implementing the WOTUS rule in 26 states while lawsuits are heard over the validity of the regulation, the third such definition in a decade of the upstream reach of the 1972 Clean Water Act. Court challenges prevented an Obama-era definition in 2015 from taking effect. A Trump version that greatly reduced federal coverage was overturned in court in 2021, leading to the Biden rule last December.
Congress would be “putting polluters over people” if it repealed the new WOTUS rule, said Rep. Rick Larsen, Washington state Democrat, during the 45 minutes of debate on the override. Said Democratic Rep. Paul Tonko of New York, “This is an attack on clean water that is critical to our communities.”
Republicans attacked the WOTUS rule as “ill conceived” and “government over-reach” with hazily written descriptions that would stymie farmers, real estate developers and businesses. Any piece of property with “one drop of rain” is at risk, said House Freedom Caucus chairman Scott Perry. “They’ve going to tell you how to live your life.” said House Freedom Caucus chairman Scott Perry.
California Rep. John Durate, who agreed in 2017 to pay $1.1 million in fines and to restore wetlands on his farmland, said the WOTUS rule, “is about government control of land. It is not about affordable food. It is not about affordable housing.”
Normal farming activities are exempt from wetlands regulations, according to the government. The latest WOTUS regulation was accompanied by a memorandum that continued a 1993 exemption of cropland converted from wetlands.