President Biden vetoes resolution to overturn WOTUS ruling

By and |  April 7, 2023
President Joe Biden on Thursday vetoed a resolution that would have overturned a recently revised 'Waters of the U.S." rule. Photo: NNehring/E+/Getty Images

President Joe Biden on Thursday vetoed a resolution that would have overturned a recently revised ‘Waters of the U.S.” rule. Photo: NNehring/E+/Getty Images

President Joe Biden on Thursday vetoed a resolution that would have overturned the recently revised definition of “waters of the United States” (WOTUS).

The new definition came forward at the end of 2022 when the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers finalized a rule establishing the WOTUS definition. EPA says the new rule restores essential water protections that were in place prior to 2015 under the Clean Water Act (CWA) for traditional navigable waters, territorial seas, interstate waters and upstream water resources that significantly affect those waters.

In his veto statement Thursday, President Biden says the revised WOTUS definition “carefully sets the bounds for which bodies of water are protected under the Clean Water Act.” He adds that the definition “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 resolution would leave Americans without a clear definition of ‘waters of the United States,’” Biden says. “The increased uncertainty caused by H.J. Res. 27 would threaten economic growth, including for agriculture, local economies and downstream communities.

“Farmers would be left wondering whether artificially irrigated areas remain excluded or not,” he adds. “Construction crews would be left wondering whether water-filled gravel pits remain excluded or not. The resolution would also negatively affect tens of millions of United States households that depend on healthy wetlands and streams.”

Industry insights



Construction materials industry stakeholders were not pleased when the revised definition was originally revealed late last year.

“The action taken by EPA and the Corps only adds to the confusion of an already unclear process that our members must deal with in order to provide materials crucial for infrastructure projects, like those in the recent bipartisan infrastructure law,” says Mike Johnson, president and CEO of the National Stone, Sand & Gravel Association (NSSGA).

One point of contention NSSGA had with the timing of the new rule was that the agencies did not wait for the Supreme Court’s decision on Sackett v. EPA.

“Not waiting for the Supreme Court’s ruling before finalizing this rule expands the time and effort our members must spend navigating this punitive system,” Johnson says. “This was also done despite requests by a broad range of stakeholders, including NSSGA and over 250 bipartisan members of Congress, to delay a rule until the pending [Supreme Court] decision on Sackett v. EPA is released.”

Johnson joined P&Q earlier this year at the Pit & Quarry Roundtable & Conference, where he expanded on his initial thoughts about the WOTUS rule.

“Waters of the U.S. is a great example of the regulatory dysfunction in the federal government,” Johnson says. “We are now on our seventh iteration of the waters of the U.S. rule since the Bush administration. Now, the Biden administration is essentially withdrawing the Trump administration rule, which is still under challenge in the courts, and replacing it with its own [rule].

“The Supreme Court has on its docket a waters of the U.S. case, we don’t believe it makes sense for the EPA and the Corps to move forward with a new water rule until they hear the Supreme Court’s ruling decision,” he adds. “I don’t think this new rule was really a surprise. I think they wanted to jam their rule into the pipeline before the Supreme Court got a chance to speak. That’s irresponsible and we’ve addressed that with our champions in Congress.”

NSSGA joined organizations such as the American Road & Transportation Builders Association, the National Mining Association and others earlier this year in filing a complaint in a U.S. district court over the new WOTUS rule.

In the complaint, the organizations write that “the rule imposes impossible – and unpredictable – burdens on land owners, users and purchasers. It requires them to assess not only their own land, but also vast expanses of land beyond their own holdings, using multiple vaguely defined connects to potentially remote features, in an effort to determine if their land is regulated under the CWA.”

Another industry stakeholder that shared his displeasure with the WOTUS rule is Mark Williams, environmental manager at Luck Companies. Williams offered his perspective on the rule during a hearing held by the House Transportation & Infrastructure Subcommittee on Water Resources & Environment.

“As the industry that provides the basic material for everything from the roads on which we drive to purifying the water we drink, NSSGA members are deeply concerned that EPA’s new WOTUS rule will further complicate an already lengthy and burdensome permitting process to establish or access new aggregates resources,” Williams says. “We want to do things the right way, but this unclear rule makes it nearly impossible to know what the right way is.”

Jack Kopanski

About the Author:

Jack Kopanski is the Managing Editor of Pit & Quarry and Editor-in-Chief of Portable Plants. Kopanski can be reached at 216-706-3756 or

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