EPW Ranking Member’s formal challenge through the Congressional Review Act now heads to the president’s desk: “I urge President Biden not to overrule the will of a bipartisan majority in Congress”

– Today, the U.S. Senate passed Senator Shelley Moore Capito’s (R-W.Va.) Congressional Review Act (CRA) joint resolution of disapproval that overturns President Biden’s overreaching Waters of the United States (WOTUS) rule by a vote of 53-43.

Senator 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,” Ranking Member 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.”

The House of Representatives previously approved the measure on March 9, led by Transportation and Infrastructure Committee Chairman Sam Graves (R-Mo.-06), and it now goes to the president’s desk.

Full text of the resolution can be found here.

A one-pager can be found here.


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.

In December 2022, the EPA issued a new rule repealing the NWPR and changing the definition of WOTUS in a way that will expand federal regulatory authority.


In February 2023, Ranking Member Capito led all 48 of her Senate Republican colleagues in introducing a formal challenge to the Biden administration’s WOTUS rule through a CRA joint resolution of disapproval.

In September 2022, Ranking Member 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.

In April 2022, Ranking Member Capito led 45 senators and 154 House members on an amicus curiae brief filed in the U.S. Supreme Court in support of the petitioners in the pending case Sackett v. EPA, which is directly related to how much authority the federal government has over states and private citizens to regulate “waters of the United States” under the Clean Water Act.

In February 2022, Ranking Member Capito led her Republican colleagues on the EPW committee in a letter to EPA Administrator Michael Regan and Assistant Secretary of the Army for Civil Works Michael Connor specifically requesting the Biden administration immediately halt plans to finalize a novel definition of WOTUS under the Clean Water Act until after the Supreme Court’s ruling in Sackett v. EPA.

In November 2021, Ranking Member Capito issued a statement expressing her dismay at the announcement of the first step in EPA’s two-step process to replace the Trump administration’s 2020 NWPR and promulgate a new definition of WOTUS.

In August 2021, Ranking Member Capito sent a letter to EPA Administrator Regan and Jaime Pinkham, the Acting Assistant Secretary of the Army for Civil Works, asking for a more complete and comprehensive stakeholder engagement process regarding repealing and replacing NWPR. Specifically, Ranking Member Capito requested an extended public comment period for receiving recommendations. 

That letter followed Ranking Member Capito’s previous letter requesting additional clarity on the basis for the decision to repeal and replace NWPR and yet another letter, which she led her Republican colleagues on the committee in sending, requesting increased transparency into the process of repealing 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.

Ranking Member Capito, along with Senators Cramer, Lummis, Inhofe, and Wicker, also introduced legislation in July 2021 that would codify NWPR.

In February 2021, the Senate passed an amendment introduced by Senator Capito that upheld the Trump administration’s NWPR.

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