Foes of President Joe Biden’s proposed regulation to strengthen federal regulatory protection for wetlands, small streams and other bodies of water have scored a legislative win with congressional approval of a measure that would invalidate the rule.

But the victory may well be only temporary. The White House has said Biden will veto the resolution and opponents of the rule almost surely will be unable to muster the two-thirds majorities needed in each chamber of Congress to override a presidential veto.

Final congressional approval for the “resolution of disapproval” came March 28, when the Senate passed the measure on a 53-43 vote. Four Democrats and one Independent joined Republicans to vote for the measure. 

The Democrats were Sens. Catherine Cortez Masto (Nev.), Joe Manchin (W.Va.), Jackie Rosen (Nev.) and Jon Tester (Mont.). The Independent was Sen. Kyrsten Sinema (Ariz.).

Sen. Shelley Moore Capito (R-W.Va.), the resolution’s sponsor, said in a statement, “By voting to overturn President Biden’s waters rule, we are sending a clear, bipartisan message that Congress, even a divided one, will defend working Americans in the face of executive overreach.” 

Environmentalists blasted the Senate vote. Ben Jealous, executive director of the Sierra Club, said in a statement that a majority of senators “have chosen to side with corporate polluters and play politics with one of our most critical natural resources.” He added, “This is inexcusable.”  

The House already passed the resolution back on March 9 by a 227-198 vote.

The measure was considered under the Congressional Review Act, which allows members of Congress to strike down regulations issued by federal agencies. A resolution of disapproval must be introduced within a specific time frame.

At issue in the Biden regulation and the resolution to strike it down is the scope of federal regulation under the Clean Water Act for Waters of the United States, or WOTUS.

According to a December 2022 White House fact sheet on the rule, the administration chose a pre-2015 definition for which bodies of water fall under federal jurisdiction, one that “has been implemented by every administration in the last 45 years.”

The issue is critically important for the construction industry, because it determines the circumstances under which contractors seeking to build near streams, wetlands or other bodies of water must secure a federal permit before beginning work.

As the procedure for the new resolution plays out, all sides in the WOTUS debate are anxiously awaiting a more important development. The U.S. Supreme Court is expected to rule by the end of June on a case that aims to clarify the reach of federal regulation over various bodies of water. 

The high court heard oral arguments last October in the case, Sackett v. Environmental Protection Agency.