April 6, 2023
A bipartisan 53-43 majority of the U.S. Senate voted on March 29 to join the House in rejecting the Biden Administration’s Waters of the U.S. (WOTUS) rule. This vote on a joint resolution of disapproval (H.J. Res 27) took place under the Congressional Review Act (CRA), which Congress adopted in 1996 to provide a vehicle to overturn rules issued by federal agencies. CRA requires federal agencies to report to Congress on rulemaking activities and gives Congress a set of procedures to consider legislation to overturn those rules. The Biden Administration said it will veto this joint resolution, meaning the WOTUS rule will go into effect since Congress does not have enough votes to override the veto. The Senate Democrats that joined Senate Republicans in voting for disapproval are Joe Manchin (WV), Catherine Cortez Masto (NV), Jacky Rosen (NV), and Jon Tester (MT). Kyrsten Sinema (I-AZ), who caucuses with the Democratic majority, also voted for the resolution.
While the Biden Administration and the rule’s supporters claim the rule brings together the best of the Obama Administration’s 2015 and the Trump Administration’s 2020 rules, the new rule offers an unclear and difficult to administer “significant nexus” test that was also at the heart of the Obama Administration’s definition. The Supreme Court could overturn this element of the Biden rule, even if Biden vetoes the joint resolution because the lawfulness of the “significant nexus” test is at the heart of the Sackett case, which awaits the Supreme Court’s decision. UEP has contended for several months that the Biden Administration should wait for the Supreme Court’s decision before finalizing a rule.
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