Congress Pushes Back on Biden’s Water Rule

The House of Representatives is on recess for two weeks, but before leaving, a substantial number of its members voiced their opposition to the Biden administration’s regulation revising the definition of the Waters of the United States or “WOTUS” rule. Transportation and Infrastructure Committee Chair Sam Graves (R-MO), and David Rouzer (R-NC), chair of the Water Resources and Environment subcommittee, have sponsored a joint resolution of disapproval of the rule under the Congressional Review Act (CRA), which empowers Congress to prevent a regulation from going into effect.

The WOTUS rule has been of particular interest to the commercial real estate industry and environmental regulatory policy is one of NAIOP's 2023 legislative priorities. NAIOP submitted comments on the proposed regulation in 2022.

For a regulation to be invalidated under the CRA, the resolution of disapproval must be signed by the president, or Congress must overturn his veto. While that is unlikely, the resolution has more than 150 cosponsors in the House and 49 senators have signed onto the measure, signaling substantial opposition. It’s possible that language preventing the Biden Administration’s WOTUS rule’s implementation would be included in must-pass appropriations bills. The Supreme Court is also expected to issue a ruling by June 2023 in a case involving the WOTUS issue.