President Joe Biden, as promised, has vetoed a measure that would undo his administration’s new regulation revising the boundaries of federal regulatory authority under the Clean Water Act.
Biden’s action on April 6 sets up veto-override votes in each chamber of Congress when lawmakers return after the spring recess.
The rule deals with what water bodies the clean water statute terms “Waters of the United States" or WOTUS, and fall under federal jurisdiction.
That definition is significant for construction because it determine the locations where contractors must secure a federal permit before breaking ground.
"The 2023 revised definition of 'Waters of the United States' carefully sets the bounds for which bodies of water are protected under the Clean Water Act," Biden said in a statement. "It provides clear rules of the road that will help advance infrastructure projects, economic investments, and agricultural activities—all while protecting water quality and public health."
Sen. Shelley Moore Capito (R-W.Va.), who sponsored the Senate version of the resolution, called the veto “blatant executive overreach.”
She said Biden "is ignoring the will of a bipartisan majority in Congress, leaving millions of Americans in limbo and crippling future energy and infrastructure projects with red tape."
To override the veto, opponents of the Biden regulation must round up two-thirds majorities in both chambers. That is an exceedingly high hurdle, given that the votes to pass the resolution were 227-198 in the House and 53-43 in the Senate. In both cases, rule opponents fell well short of the two-thirds mark.
Brian Turmail, Associated General Contractors of America vice president, public affairs and strategic initiatives, told ENR via email, “It is unfortunate that the president decided to veto a bipartisan measure that would have saved the economy from his administration’s misguided Waters of the U.S. rule.”
Turmail adds, “While it is a long shot, we will work with Congress to push to overturn this veto. Even if that doesn’t occur, the courts are likely to give great weight to the bipartisan Congressional opposition to the rule as they consider our and others’ challenge to the regulation.”
Those on both sides of the clean water issue—including lawmakers, industry officials and environmental advocates—now are focusing more intently on the U.S. Supreme Court.
The court held oral arguments in October on a case that centers on where to draw the boundaries of federal regulation over waterways of many types. Justices are expected to issue their opinion in the case, Sackett v. Environmental Protection Agency, before their term ends in late June.
