[Congressional Record Volume 167, Number 105 (Wednesday, June 16, 2021)]
[Senate]
[Page S4563]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Nomination of Radhika Fox

  Mrs. CAPITO. Mr. President, I rise today to oppose the nomination of 
Radhika Fox to be Assistant Administrator for Water at the EPA. I 
certainly appreciate her willingness to serve, and I have found her to 
be quite personable and friendly. So this is not a personal statement.
  But even though she is not yet confirmed, she is already in place as 
the lead political appointee in the Water Office of the EPA. In that 
capacity, her recent announcement of overreaching regulatory proposals 
under the Clean Water Act cemented my opposition to her nomination.
  Ms. Fox's position on the appropriate scope of the Clean Water Act 
was not clear last month when I voted on her nomination in the EPA 
committee, of which I am the ranking member. At that markup in May, I 
noted that I could not support Ms. Fox at that time because she would 
not commit to maintaining the navigable waters protection rule issued 
in 2020. As I noted at the time, she would also not state that the 2015 
waters of the United States rule was overreaching. So I really couldn't 
pin her down on any opinion on this very important rule.
  I now know why she would not commit to maintaining the navigable 
waters protection rule when she testified before the committee and 
avoided providing direct responses in her written responses to my 
followup questions. The administration did not support the rule and, 
apparently, the EPA opposed it completely.
  Last week, Ms. Fox and EPA Administrator Regan, as well as the U.S. 
Army Corps of Engineers, announced their plans to repeal and replace 
the rule in its entirety. EPA and the Corps of Engineers are going to 
completely rewrite the regulations that determine whether a business, a 
farm, or a citizen needs to obtain a Federal water permit. The Federal 
Agencies announced that they had decided they are not going to keep any 
part of that rule and that they are going to start from scratch.
  That was at odds with what Ms. Fox conveyed to me in a phone call 
that she did make the previous day to inform me they were going to be 
making an announcement. She was just very incomplete, and it was 
extremely disappointing to me and to the many States and businesses 
that support the navigable waters protection rule, which--unlike the 
2015 waters of the United States rule it replaced--is the law 
presently. The navigable waters protection rule is the law of the land 
in all 50 States. That made it clear when Federal permits would be 
needed, and it gave States more control over how to permit water bodies 
in their borders.
  Throughout her nomination process, when I asked Ms. Fox about the 
administration's plans, she expressed a desire to hear from 
stakeholders in order to create a ``durable'' rule. Ms. Fox did not 
conduct any formal public stakeholder process before announcing the 
decision that was made to repeal the navigable waters protection rule.
  The administration has said it plans to repeal the rule and then put 
in place guidance from the 1980s while we wait and while they come up 
with a replacement. Changing the regulations three times in a short 
period of time--2015, 2020, and now 2021--simply does not meet her 
commitment to develop a ``durable'' definition.
  Instead, ever-changing rules create a game of regulatory ping-pong 
across administrations. These are big far-reaching rules. That 
permitting uncertainty hurts our economy at a time when we need growth, 
and it does so without additional environmental protection in my home 
State.
  We often forget that the Clean Water Act allows States to regulate 
their waters as much as they like. The definition of ``waters of the 
United States'' only determines Federal jurisdiction. In fact, that is 
the keystone of the Clean Water Act.
  The administration's promises of transparency and creating regulatory 
certainty simply are not reflected in these actions, and their goals, 
stated to a briefing of congressional offices during a briefing call, 
are particularly troubling. They pointed to the prior converted 
cropland exemption and treatment of ditches under the current rule as 
``implementation challenges'' that they want to address.
  It doesn't take much to understand what that means. The 
administration intends to require more Federal permits for prior 
converted cropland and ditches on private land. That is a gross 
overreach of the Federal Government's authority under the Clean Water 
Act, and it is questionable whether the EPA and the Army Corps of 
Engineers could even vet the sheer volume of permit applications that 
would come their way.
  I encourage Ms. Fox to engage with stakeholders from agriculture to 
mining, to construction, to home building before issuing the official 
proposal to repeal the navigable waters protection rule, and I urge Ms. 
Fox to make that engagement meaningful. Simply checking the box that 
these stakeholders have had the opportunity to talk to members of the 
administration is not meaningful engagement.
  If officials of the administration truly engaged in a transparent 
process where they took stakeholder feedback into account, they would 
learn that the best way to provide regulatory certainty is to keep that 
navigable waters protection rule in place. I cannot support Ms. Fox's 
decision to undo such a foundational rule without any public engagement 
and to do so in a way that appears to be more expansive than the 
overreaching Obama rule called the ``waters of the United States 
rule.''
  So I urge my colleagues to vote against Ms. Fox's nomination on the 
basis of what she has already done and in most probability will do in 
the future surrounding this very, very important topic
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Louisiana.