Senate passes Capito's resolution to end Biden's WOTUS rule

Mar. 30—In a bipartisan vote, the U.S. Senate on Wednesday voted 53-43 to pass Sen. Shelley Moore Capito's effort to overturn President Joe Biden's Waters of the United States (WOTUS) rule.

Capito has been working for some time trying to end a rule that, she said last month, is government overreach and would add more regulations, more permitting and more expense to farmers and ranchers.

When she filed the Congressional Review Act (CRA) joint resolution of disapproval on the WOTUS rule, she said it "will give every member of Congress the chance to stand with farmers, ranchers, landowners, and builders, and protect future transportation, infrastructure, and energy projects of all kinds in their states. I appreciate the widespread support we've received in both the Senate and House, and across the country, as we fight to place an important check on this misguided overreach from the Biden administration."

Capito said last month the Biden rule "removes longstanding, bipartisan exclusions for small and isolated water features on farms and ranches and adds to the regulatory burden cattle producers are facing under this administration."

The National Cattlemen's Beef Association (NCBA) had already filed statements about the importance of "maintaining agricultural exclusions for small, isolated, and temporary water features, like ephemeral streams that only flow during limited periods of rainfall but remain dry the majority of the year."

Capito, the Ranking Member of the Senate Environment and Public Works (EPW) Committee, led her colleagues in introducing the resolution in February 2023 after the Biden administration announced a new rule in December 2022 repealing the Navigable Waters Protection Rule (NWPR), and changing the definition of Waters of the United States in a way that will significantly expand federal regulatory authority.

"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," Capito said. "I'm proud to lead my colleagues in standing up for farmers and ranchers, landowners and builders, and energy and infrastructure workers across the United States. I urge President Biden not to overrule the will of a bipartisan majority in Congress, and instead draft a new rule that doesn't unfairly penalize millions of Americans and jeopardize future growth in our country."

Sen. Joe Manchin, D-W.Va., was the only Democratic cosponsor of the CRA.

"The Administration's WOTUS rule is yet another example of dangerous federal overreach," he said after Wednesday's vote. "The proposed changes would inject further regulatory confusion, place unnecessary burdens on small businesses, manufacturers, farmers and local communities, and cause serious economic damage. It is essential to ensure clean water for all West Virginians and Americans, but we can achieve this without regulating our hard-working people out of business. I'm proud to support this resolution of disapproval and I encourage President Biden to accept this clear and bipartisan rejection of his Administration's overreaching and unnecessary rule."

The House of Representatives approved the measure on March 9 by a bipartisan vote of 227-198, and it now goes to Biden's desk.

In September 2022, Capito led 46 of her Republican colleagues in introducing the START Act, comprehensive federal regulatory permitting and project review reform legislation that would have codified the Trump administration's NWPR definition of "waters of the United States" under the Clean Water Act.

Capito provided background on the issue.

In 2015, the Obama administration finalized a rule that expanded the definition of WOTUS, creating "confusion and burdensome red tape, especially for West Virginia's agriculture, construction, and coal industries."

The Trump administration released a proposed rule to replace the 2015 WOTUS rule with a new one that provided "much-needed predictability and certainty" for farmers by establishing clear and reasonable definitions of what qualifies as a "water of the United States." The NWPR was finalized in 2020.

On day one of his administration, President Biden signed an executive order to begin the process of rolling back the Trump administration's NWPR.

Capito has led the charge against the changes since February 2021, including that attempt to codify the NWPR.

In July 2021, Michael Connor, President Biden's nominee to lead the Corps, admitted he wasn't aware of any specific environmental degradation under NWPR.

— Contact Charles Boothe at cboothe@bdtonline.com

Contact Charles Boothe at cboothe@bdtonline.com