Biden vetoes congressional restraint on Clean Water Act regulations

April 7, 2023
A congressional resolution that would have nullified an expansive Clean Water Act regulatory policy was vetoed Apr. 6 by President Biden.

A congressional resolution that would have nullified an expansive Clean Water Act regulatory policy was vetoed Apr. 6 by President Biden.

The Biden administration’s approach to determining the jurisdiction of the Clean Water Act poses complications for oil and gas exploration, production, and pipeline plans as well as projects in many other industries. It is similar to the working definition of Clean Water Act jurisdiction used by the Obama administration.

“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 his veto message to Congress. “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.”

The Senate approved the resolution 53-43 Mar. 29. It was passed under authority of the Congressional Review Act as a step toward rolling back joint regulatory decisions by the Environmental Protection Agency (EPA) and the US Army Corps of Engineers on what streams, ponds, wetlands, ditches, and other parts of the landscape can be regulated as federal waters.

EPA and the Corps of Engineers jointly released the new rule Dec. 30. The rule represented a significant expansion of federal jurisdiction claims over what the Trump administration had proposed (OGJ Online, Jan. 3, 2023).

EPA and the Corps of Engineers especially tried to tie Clean Water Act jurisdiction to the commerce clause of the US Constitution, a clause that gives the federal government supremacy in regulating interstate commerce. The Clean Water Act makes no mention of the clause. It refers not to interstate commerce but to “waters of the United States” (WOTUS) and “navigable waters,” unclear terms that have allowed for decades of litigation.

Multi-industry frustrations with the Dec. 30 rule were summarized by Jerry Konter, chairman of the National Association of Home Builders, who said at the time, “Rather than providing clarity and certainty for home builders and other affected stakeholders, this definition of WOTUS adds uncertainty and confusion to the regulatory process.”

The rollback resolution (H.J. Res. 27) was passed Mar. 9 in the House in a 227-198 vote, nine Democrats joining with all but one Republican to support it. In the Senate, four Democrats and independent Sen. Kyrsten Sinema of Arizona joined with Republicans to pass the resolution despite Biden threatening a veto.

Litigation, legislation

The veto came while a case is pending before the Supreme Court in which the plaintiffs advocate a narrower definition of Clean Water Act jurisdiction (OGJ Online, Oct. 3, 2022). The American Petroleum Institute, the Association of Oil Pipelines, and the American Gas Association in 2022 supported plaintiffs in that case.

The Supreme Court’s decision in the case could have a big impact on Clean Water Act regulations going forward. The act itself has no definition of jurisdiction.

Congress also has been wrestling with the question of permitting reform through separate legislation. The House voted March 30 to approve the Lower Energy Costs Act (H.R. 1) with four Democrats joining Republicans to support the bill, containing a wide array of reform ideas. However, Senate Majority Leader Chuck Schumer (D-N.Y.) said the bill was “dead on arrival” in the Senate.

The general expectation is that discussions of permitting reform will continue in Congress, in part because neither Sen. Joe Manchin (D-W.Va.) nor Republicans intend to give up on it.