Nomination of Radhika Fox

Floor Speech

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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.

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