The U.S. House of Representatives has voted down the latest rule establishing a new definition of “waters of the United States” (WOTUS).
According to AP News, the House voted on Thursday, March 9 to overturn the rule, passing in a vote of 227 to 198.
The Congressional Review Act
The House has the power to block recently-enacted executive branch regulations, like the WOTUS definition rule, due to the Congressional Review Act, which was enacted in 1996.
The Act allows any member of Congress to introduce a resolution disapproving of an agency’s rule. If a majority of both the House and the Senate approve the resolution, it will be sent to the president’s desk. If the president vetoes the resolution, both the House and the Senate will need a two-thirds majority vote to override the veto.
Future of WOTUS
This development among Congress is part of a predictable flow in modern D.C. politics. It’s likely that the final outcome of this resolution is an unsurpassed veto from Biden.
The House’s vote against the WOTUS rule was an expected development for D.C.’s partisan politics. Environmental regulations are often a point of contention between Democrat and Republican lawmakers, with Republicans opposed to stricter regulations. Because the Republican party holds a majority in the House, the vote was a likely outcome.
The legislation has a strong chance of passing the Senate as well, with the branch’s majority depending upon conservative Senators Joe Manchin and Kyrsten Sinema. Manchin has already voiced support to vote down the rule.
If the legislation passes both the House and Senate, it is still likely that Biden will veto the resolution. In this scenario, Congress would need a highly unlikely two-thirds majority vote in order to override the veto and officially block the WOTUS rule.
However, the question of a WOTUS definition is also being heard by the Supreme Court. According to E&E News, the decision of the Supreme Court case Sackett v. EPA could restrict EPA’s authority over wetlands and significantly narrow the scope of the Clean Water Act.
With a majority of six conservative justices that have proven comfortable breaking case precedents, it is possible that the Supreme Court may restrict the Clean Water Act. However, Supreme Court cases are much less predictable than the passage of Senate resolutions.
Building an enduring definition
The definition of WOTUS is crucial to Clean Water Act enforcement, as it establishes the boundaries for waters that can be subject to federal protection. However, shifting partisan authority has left unstable ground for the definition over the last few years.
This latest rule defining WOTUS had been announced in late December 2022, under President Joe Biden’s administration through the U.S. EPA and Department of the Army.
The rule was meant to establish a durable definition of WOTUS founded on a pre-2015 definition with updates to reflect existing Supreme Court decisions, the latest science, and the agencies’ technical expertise.
Rulings over the last couple years have led to unstable ground for the definition of WOTUS. In 2020, the agencies had issued a rule under the Trump administration titled the Navigable Waters Protection Rule (NWPR), which moved away from prior regulations, diminishing the scope of the Clean Water Act and providing less protection than the regulations preceding it.
In January 2021, the Biden administration directed federal agencies to review many regulations — including a review of the NWPR by EPA and the Army. The agencies concluded that the NWPR didn’t provide a sufficient definition to protect many waters in the nation. EPA and the Army announced their intent to revise the WOTUS definition in June 2021. In August 2021, the agencies stopped implementation the NWPR and re-established a pre-2015 definition.
