Presidents almost always prevail when they veto legislation; there have been only 20 overrides in the 45 years since Gerald Ford left office. So Republican leaders in Congress face an uphill struggle against the Biden administration’s “waters of the United States” (WOTUS) regulation. Nonetheless, the House could vote as early as Tuesday in a rematch with President Biden.
It would be the second time the House has voted on Republican-sponsored H.J.Res.27, which would excise the current WOTUS rule. Biden vetoed the so-called resolution of disagreement on April 6. A two-thirds majority is needed in the House and Senate to overcome a veto.
“With the upcoming vote to override the president’s veto, every member of the House has the opportunity to fix this issue and ensure that all states get the relief they deserve from the administration’s overreaching WOTUS rule,” said Republican Reps. Sam Graves of Missouri and David Rouzer of North Carolina in a joint statement last week. Graves, who chairs the House Transportation Committee, is the lead sponsor of the resolution. Rouzer chairs one of the Transportation subcommittees.
In a list of legislation facing action this week in the House, Majority Leader Steve Scalise said an override vote on WOTUS “may be considered” on Tuesday.
Three weeks ago, the House failed to override Biden’s first veto as president in a dispute over a Labor Department rule allowing retirement plans to consider environmental, social and governance factors when making investments so long as it did not mean lower returns or greater risks. Republicans used the same approach, a resolution of disagreement, H.J.Res.30, as they used against WOTUS, to try to shelve the rule. The March 23 vote to override was a party-line 219-200 roll call, well short of two-thirds, and little different than the original 216-204 vote on the resolution.
The House passed the WOTUS resolution, 227-198, and the Senate vote was 53-43 in favor. Republicans hold a 222-213 majority in the House. Democrats control the Senate, 51-49.
In vetoing H.J.Res.27, Biden said his administration’s WOTUS rule “provides clear rules of the road that will help advance infrastructure projects, economic investments, and agricultural activities — all while protecting water quality and public health.” By contrast, H.J.Res.27 would leave the nation with without a clear definition of clean water protections, he said.
According to Ballotpedia, there have been 153 “regular” vetoes and 73 pocket vetoes since Jimmy Carter became president, and 20 congressional overrides of those vetoes. By their nature, pocket vetoes, when the president does not sign a bill, cannot be overridden because they become effective when Congress adjourns.
The Biden WOTUS regulation is the third definition in less than a decade of the upstream reach of the 1972 Clean Water Act. It repealed a narrower Trump-era rule that was ruled invalid by a federal judge. The Obama administration issued a WOTUS definition in 2015 but court challenges prevented it from taking effect. The Biden regulation employs the “significant nexus” test created by the Supreme Court in 2006 to decide if wetlands are covered by the 1972 water pollution law.
The Supreme Court is expected to rule soon on an Idaho case that would restrict wetlands protection to territory with a direct surface connection to waterways.