The mighty Duck: A portion of the Duck River in Coffee County. (Photo: John Partipilo)
The U.S. House voted last week to undo a Biden administration definition of wetlands that allows for regulations on private lands.
The chamber approved, 227-198, a resolution to roll back the U.S. Environmental Protection Agency’s broader definition of what qualifies as “waters of the United States,” or WOTUS, for the purposes of federal regulation under the Clean Water Act. The move was largely symbolic, as President Joe Biden has said he intends to veto the measure if it reaches his desk.
Republicans used a procedure allowed under the Congressional Review Act, which permits Congress to reject new executive branch rules. The EPA and the Army Corps of Engineers proposed the new definition in late 2021 and the final rule would go into effect on March 20, if it is not halted through congressional action.
While Republicans were the most vocal in opposing the rule, nine Democrats — including two leaders in agriculture policy — crossed party lines to vote for the resolution.
Georgia Democrats David Scott, the top Democrat on the House Agriculture Committee, and Sanford Bishop, the ranking member on the House Appropriations Agriculture Subcommittee, both voted for the resolution.
The other seven Democrats to vote in favor were Angie Craig of Minnesota, Don Davis of North Carolina, Jared Golden of Maine, Jim Costa and Jimmy Panetta of California, and Henry Cuellar and Vicente Gonzalez of Texas.
Pennsylvania’s Brian Fitzpatrick was the sole Republican to oppose it.
The American people want clean water. We cannot gut this fundamental underlying environmental law that protects the health and safety of our communities.
– U.S. Rep. Melanie Stansbury, D-New Mexico
Senate passage possible
Such resolutions need only a simple majority to pass the Senate. With swing-vote Democrat Joe Manchin III apparently in favor, the WOTUS rollback could attract enough support in a nearly evenly divided Senate.
Unlike most legislation in the Senate, the majority party cannot block consideration of a Congressional Review Act resolution.
A Senate vote is likely sometime in the middle of next week, a Senate Republican aide said Friday.
A spokesman for Montana Democrat Jon Tester, another moderate from a rural state up for reelection next year, said Friday the senator is undecided on the measure.
A spokeswoman for Sen. Kyrsten Sinema, an Arizona independent who caucuses with Democrats, did not immediately return a request for comment.
Biden would have to sign a rollback, though, and the White House pledged in a March 6 statement of administration policy that he would veto any such measure.
Contrary to Republican complaints that the rule would create more uncertainty, the White House said that revoking the rule would only complicate the situation by voiding any working definition.
“The increased uncertainty would threaten economic growth, including for agriculture, local economies, and downstream communities,” the White House said. “Compared to the kind of uncertain, fragmented, and watered-down regulatory system that H.J. Res. 27 might compel, the final rule will secure substantial and valuable benefits each year.”
Overreach v. fundamental protections
Republicans have for years objected to an expansive definition. During House debate Thursday, several Republicans offered their reasons for rejecting the rule.
U.S. House Transportation and Infrastructure Chairman Sam Graves, a Republican from Missouri who was the chief sponsor of the House resolution, said Thursday the issue was a prime example of federal overreach, and only hurt the ultimate goal of improving water quality.
“We have consistently seen increasingly expansive interpretations of the Clean Water Act result in the implementation of a flawed and overreaching water policy,” Graves said. “Decades of agency interpretation and misinterpretations have created uncertainty for rural communities, for farmers, for ranches, for businesses and industries that rely on clean water.”
Democrats said the rule would create regulatory certainty for farmers and others while also providing essential clean water protections.
“The American people want clean water,” New Mexico Democrat Melanie Stansbury said on the House floor. “We cannot gut this fundamental underlying environmental law that protects the health and safety of our communities.”
A long history
The resolution is an attempt to add another chapter in a long recent history of expanding and contracting definitions on regulatable wetlands.
Responding to longstanding confusion over what qualified as a water of the United States, the EPA near the end of President Barack Obama’s administration in 2015 finalized a regulation holding that any standing water that eventually drained into a navigable waterway or drinking water supply could be regulated by federal authorities.
Under President Donald Trump, the EPA significantly narrowed that definition in 2020.
Biden reopened the issue and claimed, as environmental advocates hoped, a broader definition that allowed for more robust Clean Water Act enforcement.
The rule is unpopular with farmers and others who say that construction and maintenance on private property is much more difficult and time-consuming when permission from the federal government must be granted.
The Obama-era rule is being challenged by an Idaho couple at the U.S. Supreme Court, which is expected to rule on the case before the court adjourns in June.
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