EPA struggles to ditch contentious rule’s catchy nickname

By Tiffany Stecker | 12/24/2015 01:27 PM EST

As the 92nd Congress ironed out the Clean Water Act amendments in 1972, lawmakers were unhappy with a well-worn term for resources deserving federal protection, "navigable waters."

So House and Senate negotiators cooked up "navigable waters of the United States."

"This new definition clearly encompasses all water bodies, including mainstreams and their tributaries, for water quality purposes," one of the bill’s architects, Michigan Democrat John Dingell, said then on the House floor.


And when the Obama administration released new rules last year for defining what waterways and wetlands get Clean Water Act protection, U.S. EPA and the Army Corps of Engineers turned to the old reliable, "Waters of the United States," which quickly got turned into an acronym, WOTUS.

WOTUS had a ring to it, echoing POTUS (president of the U.S.), FLOTUS (first lady of the U.S.) and SCOTUS (Supreme Court of the U.S.).

But the hot-button rule’s many opponents used the rule’s name as a weapon, saying it revealed the administration’s true motive was regulating all waters of the United States.

"It resonates in many parts of the country as something really, really awful," said Pat Parenteau, a Vermont Law School professor.

EPA spokeswoman Monica Lee said, "It’s a scare tactic used by those looking to politicize the issue of providing clean water to all Americans."

So EPA is asking the media to forget WOTUS and call the regulation the Clean Water Rule.

"EPA and the Army, the two agencies responsible for writing and implementing the rule, call it the Clean Water Rule and have done so for almost a year and a half," Lee said in an email. "It’s the name we use on our websites and how it’s referred to in the Federal Register. We are updating the Clean Water Act with a rule, hence the name, Clean Water Rule. It’s as simple as that."

The rule’s opponents who feasted on WOTUS are also taking aim at "Clean Water Rule."

The American Farm Bureau Federation’s Don Parrish, for one, said Clean Water Rule represents an attempt to infuse politics into what should have been a technical matter.

"Rulemaking is supposed to be as dry as Melba toast," Parrish said. "It’s supposed to be the federal government taking account in a balanced fashion those who are in support of the rule and those that are opposed to the rule."

Brent Fewell, a partner at the law firm Troutman Sanders LLP, also objects to the name Clean Water Rule, which he says promotes the idea that a regulation alone will lead to clean water.

"To suggest that … clean water is only protected by federal rules is somewhat dismissive" of state rules that regulate water quality, said Fewell, who served as deputy assistant administrator in EPA’s Office of Water under President George W. Bush.

‘We weren’t crystal-clear’

When EPA rolled out its draft Clean Water Act rulemaking in March 2014, it was called "Definition of Waters of the United States under the Clean Water Act."

And the agency released the final rule in May as "Clean Water Rule: Definition of Waters of the United States Under the Clean Water Act."

EPA Administrator Gina McCarthy has lamented that the agency didn’t simply use the title "Clean Water Rule" from day one.

"I really wish we had done a better job of rolling out our proposed Clean Water Rule," McCarthy told the National Farmers Union at the group’s annual meeting in Wichita, Kan., before the regulation became final this year.

"I’m really concerned that we weren’t crystal-clear, out of the gate, not just about what we intended to do, but about what we weren’t intending to do, because it left all kinds of room for people to wonder not just about what the words said but about what we were trying to accomplish" (E&ENews PM, March 16).

The names now used for the rule offer different perspectives: "Waters of the U.S." refers to areas that would get regulatory oversight, while "Clean Water Rule" points to what the rule would achieve.

Jon Devine, a senior attorney with the Natural Resources Defense Council, said he has never referred to the rule as WOTUS, preferring "Clean Water Protection Rule."

"Our focus has consistently been on the important benefits the rule will provide," Devine said. "In that sense, it hasn’t been hard at all" to use Clean Water Rule.

Spotlighting "clean water" is a smart move for EPA, said David Konisky, an associate professor of public policy at Indiana University’s School of Public and Environmental Affairs.

Clean water consistently ranks as one of the public’s top environmental concerns, Konisky said. A Gallup poll in March, for example, showed drinking water contamination and the pollution of rivers, lakes and reservoirs were the top environmental concerns for Americans, with 55 percent and 47 percent of those surveyed saying they worry about those two issues.

"This is going to address the pollution problem that people tend to worry about," Konisky said of Clean Water Rule.

But EPA’s insistence on Clean Water Rule may be too little, too late, he said.

After a wave of litigation following the release of the final rule, a North Dakota federal judge issued an injunction to stop the rule in 13 states in August. Other district courts where lawsuits were filed either have ruled that they do not have jurisdiction to hear the issue or are waiting for the 6th U.S. Circuit Court of Appeals to decide whether the contentious rule should head straight to the appeals court (Greenwire, Dec. 7).

"The rule has already been finalized, it’s being litigated," Konisky said. "I’m not sure how changing how we talk about it will change the politics of the rule itself."

Clean Power Plan parallels

EPA has been under fire for promoting the rule, using social media to engage a public that would not necessarily carry a high interest in defining an arcane legal term. Last week, the Government Accountability Office said EPA had violated lobbying laws in promoting the regulation (E&ENews PM, Dec. 14).

NRDC was one of the organizations that EPA relied on to promote the benefits of the rule, according to GAO.

"I think it’s got a lot to do with politics," NRDC’s Devine said. "It gives cover to those who want to simultaneously oppose the Clean Water Rule and give lip service to clean water. That’s why you’ll commonly hear opponents say something like, ‘I’m all for clean water, but not this "WOTUS" rule,’ while doing absolutely nothing to actually protect clean water."

EPA’s unveiling of the moniker Clean Water Rule coincided last year with its use of a similar name for its landmark rule for curbing greenhouse gas emissions from power plants. The Clean Power Plan, unveiled in June 2014, also has a wonky past. It was called the Section 111(d) Rule, after the Clean Air Act provision that EPA believes gives the agency the authority to regulate greenhouse gas emissions from existing sources.

But while "Clean Power Plan" is almost universally adopted by both backers and challengers of the rule, that hasn’t been the case for the water rule.

"Unlike the climate regulations, I don’t think there’s widespread awareness across the public" about the water rule, Konisky said.

President Obama’s personal promotion of the Clean Power Plan played a major role as he mentioned the rule in speeches and interviews leading up to the landmark U.N. climate conference in Paris this month.

There are more neutral — if less catchy — ways to refer to the water rule. Fewell of Troutman Sanders would prefer Clean Water Act Rule to Clean Water Rule. The fairest, more objective characterization would be to call it the "jurisdictional rule," law professor Parenteau said, as it defines where the federal government can regulate.

But ultimately, Parenteau said, the rule is EPA’s baby and the agency should pick the name.

"The rule is [EPA’s] rule, and that’s what it should be referred to," he said.