The Senate passed a measure Wednesday to cancel a key Biden administration rule that defines what water bodies are subject to federal regulation under the Clean Water Act, sending the bill to President Joe Biden’s desk, where he is expected to veto it.
Senators voted 53-43 to overturn the rule.
Lawmakers are able to move forward by utilizing a congressional tool that rescinds recently finalized rules with a simple majority vote in both chambers. The Senate vote comes after the House passed a disapproval resolution 227-198 on March 9 under the Congressional Review Act to scrap the Biden administration’s Waters of the United States rule, which designates which waters require permits for activities like construction and mining.
The resolution of disapproval would nullify the Biden administration's definition of "waters of the United States," which was finalized at the end of December. Republicans have argued the Biden rule is too onerous and exposes landowners, farmers, and builders to litigation for routine activities on their properties, such as installing ponds or filling ditches.
“The administration is reaching into all of this overreach with their new regulation of the Waters of the U.S.,” said Sen. Shelley Moore Capito (R-WV) on Tuesday, who championed the resolution in the upper chamber. “We want to have a clean environment. We want to have a commitment every day to do it the right way as farmers, and yet this administration wants to come in, and it’s going to be costly; it’s going to be disruptive.”
Senate Democrats only hold a 51-member majority, including three independents who caucus with the party. Republicans only needed to peel off two lawmakers across the aisle to win a simple majority. Republicans moved forward with the vote, knowing it could be a tough one for multiple Democrats facing tough reelection prospects in 2024. Four red and swing state Democrats, Sens. Jon Tester (D-MT), Catherine Cortez Masto (D-NV), Jacky Rosen (D-NV), and Joe Manchin (D-WV), voted with Republicans to get rid of the regulation. Sen. Kyrsten Sinema (I-AZ), who caucuses with the Democrats, did so as well. The Senate math was also affected by the health-related absences of Sens. Dianne Feinstein (D-CA) and John Fetterman (D-PA).
The White House said Biden intends to veto the measure when it reaches his desk, saying in a recent statement that repealing the rule would only increase uncertainty over water regulation, threatening economic growth, agriculture, and clean water in various jurisdictions. Democrats and environmental groups argue getting rid of the rule would roll back critical environmental protections for bodies of water across the U.S.
"If the president vetoes it, Americans will need to hope the Supreme Court makes it clear that these [Environmental Protection Agency] bureaucrats are way outside the authority that Congress actually provided in the Clean Water Act," Senate Minority Leader Mitch McConnell (R-KY) said in a statement.
The major question of what qualifies as a body of water under the Waters of the United States has been ongoing for about 15 years, with the definition changing under different administrations. Versions of the rule were in effect during the Bush and Obama administrations. Obama expanded it in 2015, but the Trump administration lifted protections in 2020 with the Navigable Waters Protection Rule.
A federal judge in Texas put the regulation on hold in Texas and Idaho last week ahead of a much-anticipated Supreme Court ruling on the matter later this year. The justices heard oral arguments on the issue in October in Sackett v. EPA.