When its final rule defining what wetlands and waterways deserved automatic Clean Water Act protection kicked up a political hailstorm last year, the Obama administration scrambled to squash journalists’ use of what it saw as an unflattering and misleading acronym.
The "Waters of the United States" rule was being called "WOTUS."
U.S. EPA press officials told at least six reporters last year to ditch WOTUS and use "Clean Water Rule" instead, according to correspondence obtained by E&E News through the Freedom of Information Act.
The EPA-Army Corps of Engineers regulation is on hold as the 6th U.S. Circuit Court of Appeals weighs its merits. President-elect Donald Trump has said he would kill the rule early in his administration, although that figures to be neither easy nor fast.
The Obama administration unveiled the rule in March 2014 as "Definition of Waters of the United States under the Clean Water Act," a title playing on a critical phrase in the law, "navigable waters of the United States," that specified areas subject to federal oversight.
But five months later, EPA and the corps began calling the regulation the Clean Water Rule, incorporating that name into the rule’s formal title.
"WOTUS is a technical term that refers to the waters throughout the country that the rule examines," EPA spokeswoman Monica Lee said in an email. "WOTUS was used as a placeholder in the beginning stages of the proposal. Clean Water Rule is what the agency uses on our website and in the Federal Register to refer to the rule."
The press wasn’t keen on the new name, to the frustration of EPA’s Office of Public Affairs. More problematic to the agency was that WOTUS was featured in press releases from foes of the rule — farm groups, real estate developers and congressional Republicans.
EPA began pressing journalists to steer clear of "WOTUS." The agency tried to get Politico water reporter Annie Snider to stop using the acronym by enlisting her editors.
"For some reason, she refuses to call the rule by its name," then-EPA spokeswoman Liz Purchia told editors Nick Juliano and Matt Daily on Dec. 14, 2015, the day the Government Accountability Office issued a scathing legal opinion that EPA had broken lobbying laws in its promotion of the rule. Snider previously worked at E&E News.
As Snider was leaving E&E News for Politico in November 2015, EPA’s Lee asked her to instruct her replacement to use the rule’s full official name.
The GAO report sparked requests for EPA comments on the rule from The New York Times, The Wall Street Journal, the Associated Press and The Hill. The agency asked all who used "WOTUS" to write "Clean Water Rule" instead.
The push to ditch WOTUS began as early as August 2015.
"Can you change the headline to say Clean Water Rule instead of WOTUS? Folks have been using that for almost a year now," Lee asked Politico reporter Jenny Hopkinson for an Aug. 25, 2015, story on litigation to challenge the rule.
The administration feared it would give the impression that all U.S. waters would be federally regulated.
"We felt like those opposed to the rule were intentionally misleading the public and stakeholders about the extent of the rule," said Purchia, a former associate administrator for the Office of Public Affairs and now at a communications firm.
Industry and agriculture groups that saw the rule as an attempt to regulate farming and development "were trying to create confusion and a negative association with the name Waters of the U.S.," Purchia said in an email. "We were presenting a more accurate and direct explanation of the importance of why this rule existed in the first place, which was to protect water sources that communities and economies depend on."
The rule’s challengers said it was EPA that was politicizing the issue, not the other way around.
"In an attempt to sell the country on an expansive new federal regulation, the Agencies coined a new term for their regulatory program — the ‘Clean Water Rule.’ This terminology implies that without this Rule, the nation’s waters will be ‘unclean,’" attorneys representing state petitioners wrote in a court brief. "All of the States have robust regulatory programs that protect and preserve the natural resources within their boundaries."
‘From the bottom up’
Some journalists were confused by two terms for the same regulation.
"Is this web page about WOTUS or some other rule?" Texas Tribune reporter Kiah Collier asked about EPA’s page for the rule.
Bill Estep of the Lexington, Ky., Herald-Leader wanted to make sure the two were indeed the same rule.
"The lawsuit refers to the rule as the Waters of the U.S. rule. I assume that’s the same thing as the Clean Water Rule finalized in May by EPA and the Corps of Engineers, but I need to confirm that," he said in a June 30, 2015, email.
Though changing the language was a priority for EPA’s Office of Public Affairs, it wasn’t for EPA’s career public relations staffers. Robert Daguillard, who handled press requests for the Office of Water at the time, didn’t correct reporters who referred to "WOTUS." And Region 6 spokeswoman Jennah Durant used "WotUS" in an internal note to obtain more information on how the rule would affect the Clean Water Act’s discharge permits.
Jan Goldman-Carter, director of the National Wildlife Federation’s wetlands program, contends that environmental and sportsmen’s groups have long called the rule some variation of "the clean water rule."
It’s a misconception that EPA crafted "Clean Water Rule" as a reaction to "WOTUS," she said in an interview.
"We strategically used that moniker dating to the very beginning of the rulemaking process," Goldman-Carter said. "We saw it much more as an affirmative moniker."
The push to craft a policy that would better define protected waters predates the latest rulemaking process by nearly a decade, she said. For years, environmental groups have asked EPA to act on the issue.
"We pushed it from the bottom up and over a very long period of time," she said.
Journalists who cover the rule regularly say they have considered EPA’s calls to change the name in the press.
"I defended my decision to use ‘waters of the United States,’" said one reporter who was not permitted to speak on the record. "It’s in the title of the rule, it’s what it was called for most of its life before the final rule, and it’s what experts were calling it."
But more recently, the reporter has been using Clean Water Rule, while mentioning that it is also known as "waters of the United States."
"I reason that since agencies write rules," the reporter said, "they get some latitude in deciding what the rules are named, even if opponents think the term is loaded."
Click here to read the emails.
