U.S. House fails to override Biden veto of WOTUS legislation

The U.S. House on Tuesday failed to override a President Joe Biden veto, which means the administration’s regulation stays in place expanding which waters and wetlands can be regulated under the federal Clean Water Act.

The House did not clear the two-thirds mark needed to overturn Biden’s veto of a resolution that would have blocked the administration’s recent Waters of the U.S., or WOTUS, regulation.

House members voted 227-196 to override the veto, including all but one of the Republicans present and 10 Democrats in favor. Rep. Dusty Johnson, R-South Dakota, voted in favor of the override.

Tuesday’s tally was similar to that in the March 9 vote to pass the resolution rolling back the Biden rule.

If the veto override had succeeded in both the House and Senate, a Congressional Review Act resolution would have taken effect to overturn the Biden definition of WOTUS, which claimed a broader jurisdiction than former President Donald Trump’s administration had sought.

Biden veto

Biden on April 6 vetoed the resolution that the House and Senate each had passed, with bipartisan votes, to roll back the newest definition. 

The margins in each chamber were well short of two-thirds in each chamber, meaning a veto override was never a serious possibility.  

On the House floor Tuesday, Republicans hammered the Biden administration for continuing to support a rule that was unpopular with rural voters.

Biden’s veto message said the administration’s rule would provide more certainty to advance infrastructure projects and farming.

“This simply is not the case,” House Transportation and Infrastructure Chairman Sam Graves, a Missouri Republican, said. “Instead, this costly, overreaching rule favors radical environmentalists at the expense of infrastructure, agriculture, and economic growth and those who depend on these activities.”

Most Democrats voted not to override the veto and have consistently backed Biden’s WOTUS rule, though some with ties to rural areas have joined Republicans.

Democrats generally view the rule as expanding the government’s power to ensure natural waters remain clean.

House Transportation and Infrastructure ranking Democrat Rick Larsen of Washington said voting to strip the rule would only further confuse the regulatory landscape and offers no benefits for the environment, public health or the economy.

Shifting WOTUS definitions

The definition of what constitutes Waters of the United States has shifted several times in recent years as the past three presidential administrations have all sought to impose different interpretations and court challenges have at least partially invalidated each version.

After 24 Republican attorneys general sued to block the Biden definition, a federal judge in North Dakota last week provisionally nullified the Biden definition in those states while the suit is ongoing. The Biden standard is still in effect in the rest of the country. 

Biden’s rule, which the U.S. Environmental Protection Agency proposed last year to include any waterway with a “significant nexus” to a navigable water, went into effect March 20. 

The issue comes from amendments Congress added to the Clean Water Act in 1972 that said the statute covered “waters of the United States,” while states were responsible for environmental protection of other waterways.

In the following decades, private landowners and businesses sometimes disagreed with federal authorities about what waters fell under the statute’s jurisdiction.

The U.S. Supreme Court heard three disputes over the issue, most recently in 2006 resulting in a rare 4-1-4 decision. That split ruling created more confusion about what standard should hold. 

In 2015, President Barack Obama’s EPA issued a rule to standardize a “significant nexus” definition that allowed the federal government to enforce Clean Water Act regulations on wetlands that have an ecological connection to major waterways.

That definition was also challenged in courts. The U.S. Supreme Court this term heard a case brought by an Idaho couple during the Obama administration. The court is expected to rule this term, likely adding another chapter to the changing definition.

In the meantime, under Trump in 2020, the EPA issued a narrower definition that said only navigable waters could subject to federal regulation. But a federal judge threw that out as well.