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Header: Turning the Tide podcast

Will Baker, President, Chesapeake Bay FoundationWelcome to Turning the Tide, the Chesapeake Bay Foundation's biweekly, Tuesday morning podcast. Join President Will Baker as he shares with you his thoughts on what it will really take to turn the tide—to restore our Bay and its rivers and streams. Our listeners are welcome to provide feedback, including topics for future podcasts. Just drop us a line at chesapeake@cbf.org.

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EPISODES


Episode #4
Something A Little Different
May 12, 2015

CBF President Will Baker interviews Vice President for Litigation Jon Mueller about the litigation over the Chesapeake Clean Water Blueprint.

Transcript

BAKER: Hello, I'm Will Baker, President of the Chesapeake Bay Foundation and welcome to our continuing podcast series—Turning the Tide, Saving the Chesapeake Bay. Today, we're going to do something a little bit different. I will interview CBF's Vice President for Litigation, Jon Mueller, specifically about the litigation that is currently working its way through federal court, in which a number of large, national lobbying associations are suing the federal Environmental Protection Agency and the Chesapeake Bay Foundation. We are full interveners in the case over the Chesapeake Clean Water Blueprint—that is the state federal partnership designed to reduce pollution coming into the Chesapeake Bay and all the rivers and streams by very specific amounts, with the deadline of the year 2025 and an interim deadline of 2017. So Jon, glad to have you here.

MUELLER: Thank you, Will.

BAKER: I want to start out with a very basic question as to what the genesis of this lawsuit was.

MUELLER: Back in 2010 we were able to settle a case that we had brought against EPA, asking them to enforce the Clean Water Act. They had signed up for a number of Bay agreements and had not complied and the states had not complied with their obligations to clean up the Bay. So we sued EPA over that and along with a number of other partners we were able to successfully settle that case. One of the settlement terms was that EPA would develop a Chesapeake Bay Total Maximum Daily Load, which basically sets the amount of pollution that all the different sources within the Bay region can discharge into the Bay.

BAKER: Discharge without putting the Bay out of balance, and that Total Maximum Daily Load, those limits, mean that pollution would have to come down significantly.

MUELLER: Correct.

BAKER: So, that was the original program. Who is suing EPA and why?

MUELLER: Shortly after the Chesapeake Bay Total Maximum Daily Load was put into place, issued by EPA, the American Farm Bureau Federation and the Pennsylvania Farm Bureau Federation filed suit, challenging the EPA's authority to issue that TMDL, we call it here the Chesapeake Bay Clean Water Blueprint.

BAKER: Jon is an attorney, and so terms like Total Maximum Daily Load are important to him, but as he just mentioned this is the Chesapeake Clean Water Blueprint. It is the blueprint for clean water in the nation, for reducing pollution to levels that will put a very complex, very large system back into balance. So Jon, keep on calling it the TMDL if you want, that's the legal term, and I'll keep reminding the listeners that this is the Chesapeake Clean Water Blueprint. So, what are the claims that the plaintiffs are asking the court to agree with?

MUELLER: Well that has evolved a little bit over time. Within the district court case, the case was filed within the middle district of Pennsylvania, Judge Sylvia Rambo presiding. They alleged that EPA did not have the authority to issue this TMDL Blueprint, and that the model used to develop the loads for nitrogen, phosphorus, and sediment that could come from the various sources within the Chesapeake Bay watershed, was flawed. And that EPA had not given the plaintiffs, or the rest of citizens, the opportunity to review that Blueprint and to challenge the way it was constructed.

BAKER: The Chesapeake Bay Foundation's involvement, give us a little bit of background there, we're full defendants in the case as of now.

MUELLER: Right, the way the lawsuit was constructed the Farm Bureau Federation and the other national lobbying groups—the Corn Growers, the Poultry Association, the Turkey Growers, the Pig Growers

BAKER: And the Home Builders.

MUELLER: And the National Home Builders Association are the plaintiffs, and so they sued the EPA. We came in on the side of the EPA, in support of its authority to issue this agreement. To do that, we had to be identified as "intervening defendants." We are joined with a number of other groups. We represent the Environmental Defense Fund, Midshore Riverkeepers Association, PennFuture, Southern Environmental Law Center, working with us.

BAKER: Now, Judge Sylvia Rambo, the federal judge who decided the first element of this case, you just can't make this up, Judge Rambo. She threw out all the claims. Tell us a little bit about her decision in federal district court in Harrisburg.

MUELLER: We didn't know much about Judge Rambo and hearing the name, you were kind of looking for a gun-toting person with a handkerchief on their head, running through the jungle, but it was actually a very nice woman who is a well-recognized jurist. She reviewed the claims, it took her about a year actually to come to a conclusion—

BAKER: After the oral argument.

MUELLER: Correct. She looked at the fact that the Clean Water Act is set up to embrace a concept known as "cooperative federalism," that is that the states and the federal government have to work together to resolve some of these really intractable problems about non-point source pollution, water that runs off the land from urban areas, from industry, from agriculture, as well as what we call the point sources which are those things that discharge through a pipe, like wastewater treatment plants. She thought that the way that the states and the EPA worked together over 20 years developing these loads for the different kinds of pollution for the different sectors, was an exemplary example of cooperative federalism and upheld EPA on all counts.

BAKER: So EPA won, the Chesapeake Bay Foundation won, the Chesapeake Bay won, in federal district court. The plaintiffs suing to try and derail the Clean Water Blueprint lost. Then what happened?

MUELLER: Then they appealed. They filed their appeal in the 3rd Circuit Court of Appeals in Philadelphia. As I mentioned earlier, their claims changed a little bit at this point. Instead of challenging the model to develop the loads, and the public involvement aspects of the Blueprint, they challenged solely the EPA's authority to issue the Blueprint. The way they went about doing that, they didn't like the fact that EPA has required what's called "reasonable assurance," that the states will actually obtain those goals. They say that that aspect of this Blueprint is not written in the Clean Water Act, and therefore when the EPA told the states if you don't do more, we're going to for example deny discharge permits for those point sources I mentioned, or reduced the limits in which they can discharge, they say that's not anywhere in the Clean Water Act and that the court should throw it out because of that.

BAKER: Jon's calling the TMDL the Blueprint repeatedly now, we're making progress, this is great! We've heard a lot in the media about 21 states Attorneys General. Can you tell us how they got involved and what the implication of that is?

MUELLER: The Farm Bureau was able to get 21 state Attorneys General to weigh in as friends of the court, amicus curiae, to file a brief on their behalf. Some of those Attorneys General come as far away as Alaska, way outside of the Chesapeake Bay watershed. Their argument is if the court approves this Blueprint, it will be a model for other places in the nation, like the Gulf of Mexico and the Mississippi River watershed that are suffering from the same problems that we have here in the Chesapeake Bay. They fear that this same Bay Blueprint will be used to stop their pollution.

BAKER: Heaven forbid that other water bodies around the country are cleaned up as well. The irony is pretty ripe. Now, once the decision is rendered in the Circuit Court, what happens after that?

MUELLER: Hopefully that will be the end of the matter, but we have heard from the Farm Bureau that they are going "all the way with this," as they put it.

BAKER: Hopefully if the decision goes our way, it'll be the end of it.

MUELLER: That's correct. All indications are good. We are still waiting for a decision from the 3rd Circuit, but the way the oral argument went, we're pretty hopeful. But if we were to win, we're pretty certain that the Farm Bureau is probably going to ask the Supreme Court to take a look at the case. They have to file what's called a petition for social auroria. The Supreme Court doesn't always take appeals. They have to review it and determine if there is a conflict usually between the different circuit courts within the United States, or there's a novel precedent-setting issue they feel like they need to review.

BAKER: If it does go to the Supreme Court, obviously that will take many months more, if not a year or more. First the Supreme Court has to accept it, then they'd have to hear it, then they'd have to decide. During that time, the Blueprint is in place and working?

MUELLER: Correct, and it has been throughout the course of this litigation.

BAKER: Well thank you very much Jon Mueller, Vice President for Litigation here at CBF. I'm Will Baker, President of the Chesapeake Bay Foundation. If you have any more interest in this issue, if you'd like to know more, look at our website at cbf.org. There's plenty on it about this case. And if you have any questions for us, feel free to email us at chesapeake@cbf.org. Thanks very much.


Episode #3
As Goes the Susquehanna, So Goes the Chesapeake Bay
April 28, 2015

Upgrades to sewage treatment plants have helped improve water quality in the Chesapeake. And, each Bay state has developed a clean water blueprint outlining the steps that must be taken to reduce pollution much further, so that we can fully restore water quality in local rivers, streams, and the Bay. But, at least one pollutant, nitrogen from agriculture in Pennsylvania, is increasing, and the Commonwealth is way off track to meet the goals it set. That has to change. And Pennsylvania and EPA must effectively carry out their roles to make sure it does.

Transcript

I'm Will Baker, President of the Chesapeake Bay Foundation. Welcome to the third segment of our new podcast series, Turning the Tide, Saving the Chesapeake Bay.

People often ask me why the Bay is not getting better, so I thought I would share my thoughts on that subject. The answer is surprisingly, the Bay is getting better. Let me give you a few examples. Oysters are coming back—in fact, they haven't been this good since back in the mid 1980s. Underwater grasses are a little bit more modest, but they're starting to rebound, especially in the Susquehanna flats and in some other areas around the Bay. And, water clarity is improving. And the dead zone is starting to retreat, modestly, but it's a start, we can celebrate. You can read more on our web site, CBF.org

The next question I get is what's driving this improvement? Bottom line, taxpayers and ratepayers have funded upgrades to sewage treatment plants throughout the region—literally millions of pounds of pollution have been kept out of the Bay and its rivers and streams. That's really good news.

But there is better news, especially when we look out well into the future. Each state has developed a Clean Water Blueprint outlining the steps that must be taken to reduce pollution much further, to fully restore water quality in all the rivers, streams, and the Bay. The states have committed to implementing 60 percent of these practices by 2017, and to finish the job entirely by 2025. Of course then, we'll have a big job just trying to hold the gains we have made.

What's remarkable is that the states have committed to work in two-year increments that must be fully transparent. They must plan, implement, monitor, and report on progress every two years towards the final 2025 deadline. In this way we'll know if the process is on track, and we'll know if they're falling behind.

And there's one more element that is even more remarkable. The states are doing all of this in partnership with the feds, through EPA, the federal Environmental Protection Agency. The states have actually given EPA the hammer, so to speak, to bring it down on them if they do fall behind. There is a very clear understanding that EPA must be the enforcer, and if a state or more than one state falls behind EPA will impose sanctions, such as withholding grant funding, withdrawing permitting authority—things like that.

So everything is fine, right?  No need to worry anymore about the Bay now!

Sorry, but that's just not true! There is a dark cloud on the horizon, one which puts our health, the safety of our drinking water, and even our economy at risk, much less the overall water quality of the Bay. It is an effort by a very powerful, very wealthy group of agro-industrial lobbying associations, willing to spend any amount of money necessary to derail the process. They are not from around here. They're outsiders, so to speak. They represent the huge agricultural industries of the mid-west. The Fertilizer Institute, the Grain Growers, the Hog Council just to name a few. And they have persuaded 21 Attorney's General, from as far away as some of the more western states to join them.

Their argument is that the federal government has overreached. Even though this is a partnership, they're saying this is unconstitutional federal overreach. They're trying to convince the federal courts to throw this whole process out the window. So far, the courts are holding firm and a major decision is pending now with the third circuit court in Philadelphia. That's the last step before the Supreme Court, if the Supreme Court decides to take the case. We're pretty positive that the law will be upheld. This is really about the federal Clean Water Act and its ability to do the right things in supporting clean water.

We're fully committed. But we're not in the clear, even if we do hold off this legal assault. We have one element of the Bay restoration problem that is right here in the watershed and maybe it's even more of a concern when you think about it.

It's the Susquehanna River. The mighty Susquehanna provides half the fresh water entering the Bay. Think about that. This one river supplies as much as all of the other rivers combined. The James, the York, the Rappahannock, the Patuxent, the Eastern Shore rivers – —the Chester, the Choptank, the Nanticoke. Add all of them together, and don't forget the Potomac, and you still don't have as much pollution and as much fresh water as is coming down the Susquehanna. It's the largest source of course, and much of that pollution comes from the agricultural sector.

Recent scientific estimates show that instead of declining, at least one pollutant, nitrogen from agriculture in Pennsylvania, and even upstate New York, is increasing, and that the Commonwealth of Pennsylvania is way off track to meet the goals it set.

But here is an interesting twist. You might say it's a crisis that doesn't have to be.

There are some silver linings in those dark clouds. Reducing pollution from agriculture is much, much less costly than upgrading sewage treatment plants or reducing polluted runoff from our city streets and our parking lots. I have been meeting with top officials in Governor Tom Wolf's administration who fully acknowledge that not enough was done by prior administrations and they are committed to do what needs to be done going forward.

Pennsylvania does have the laws and regulations, which if enforced, would significantly reduce pollution. The problem is inspections of small farms in targeted watersheds have found that less than one in three is in compliance. Less than one in three of the small farms are in compliance.

Governor Wolf has inherited a regulatory bureaucracy woefully inadequate to enforce current laws. Only six inspectors are employed to review compliance of more than 45,000 farms. Six inspectors for 45,000 farms. At the current pace of inspection, it would take 160 years to visit all of Pennsylvania's farms just once.

That has to change. And EPA must effectively carry out its role to make sure it does.

Meeting Pennsylvania's commitments will provide significant economic benefits to both the Commonwealth and the region. CBF's peer-reviewed economic report found that once the Blueprint is fully implemented, and the benefits fully realized, the value of the natural services provided in the Commonwealth alone would increase by $6.2 billion annually, from $32.6 to $38.8 billion dollars annually.

Meeting its commitments will also leave a legacy of clean water for all future generations right in the Commonwealth of Pennsylvania.

CBF is increasing our presence in the Commonwealth because as the old saying makes clear, "As goes the Susquehanna, so goes the Chesapeake Bay."

We are heartened by the Wolf Administration's commitment to address these challenges, a commitment that we will not only encourage, we'll be cheering, but we will also monitor.

I'm Will Baker, President of the Chesapeake Bay Foundation.

 


Episode #2
Agriculture and the Bay
April 14, 2015

There are 87,000 farms in the Bay region. Agriculture contributes richly to our economy, our culture, and our society. But, considering the size and scope of all Bay agriculture, we've got concerns. Farming is the largest source of pollution to our Bay and its rivers and streams. So, what are we doing to save the Bay and benefit agriculture simultaneously?

Transcript

Hi, I'm Will Baker. Two weeks ago, I launched our new podcast series, Turning the Tide, Saving the Chesapeake Bay. I promised a new installment every other Tuesday. Thousands of you listened to the first one and many commented.

Today, I want to discuss agriculture in the region.

Farming represents a critical part of the economic and cultural fabric of the Chesapeake Bay. More land is in agriculture than anything else except forestry. There are 87,000 farms in Bay Country, and they contribute 13 percent of the region’s gross domestic product and $10 billion worth of food and fiber annually. Bottom line: farmers feed us and contribute to our society in countless ways.

But we have concerns. Consider simply the size and scope of all Bay agriculture, and it is little surprise that farming is the largest source of pollution to the Bay and its rivers and streams. On average, 40 to 60 percent of the region's nitrogen, phosphorus, and sediment pollution comes from agriculture. That is fact. Unfortunately, some distort that fact and say or imply that farmers are the biggest polluters. On an acre for acre basis, this is simply not true. The Bay would much rather have an acre of farm land than an acre of parking lot at a suburban strip mall.

So CBF is pro-farming. We operate our own working farm in southern Maryland. And we know better than many of our environmental colleagues just what farmers are up against in order to make a living. We also know that there are cost-effective practices that can be employed to reduce agricultural pollution and often benefit production. So clearly, farmers just like all of us, should be held accountable to not pollute someone’s water downstream.

It is a matter of fairness. Fairness also dictates though, that farmers, like all of the rest of us, have cost share funds and technical assistance made available. To that end, CBF is doing its part. For decades, we have lobbied successfully for state and federal assistance, and we have staff and volunteers spread throughout the region working shoulder-to-shoulder with farmers to help them target and implement proven conservation practices. These include fencing cattle out of streams, planting trees and bushes along stream banks to reduce erosion, and plowing cropland in ways that minimize soil disturbance and improve soil quality.

The good news is that a 2013 USDA report indicates that a vast majority — some 90 percent — of farms in the region have at least one of those conservation practices in place. That same report though, says that one conservation practice is rarely enough. Much more needs to be done to meet the overall target reductions set by the states. These reductions are central to the regional Clean Water Blueprint, a Bay restoration plan with deadlines of 2017 and 2025. Because agriculture is such a dominant land use, states have targeted some 75% of the total remaining pollution reduction to come from agriculture. This follows past advances which came primarily from sewage treatment plant upgrades.

Fortunately, these practices are, by far, the least expensive way to stop a pound of nitrogen, phosphorus, or sediment from getting into the Bay or any of its rivers and streams. And there is more good news. Millions of federal and state cost share dollars are currently available to help Bay farmers get the job done, thanks to CBF, farm organizations, and other conservation partners who have all worked together to make the case. 

So, what’s the hang up? The largest source of pollution, the cheapest to clean up, and lots of help available. Well here's the hang up: whereas most other pollution sectors — including sewage treatment facilities, urban and suburban polluted runoff, and airborne sources — are federally regulated under the Clean Water Act, most of agriculture is exempt. It is up to the states to establish and enforce restoration requirements. They have set targets supported by the best science, but they have not done enough to ensure compliance.

So what happens if nothing changes? You and I and other tax payers will have to pay for far more expensive treatment methods, like ratcheting down even further on sewage treatment.

We know that the Bay can be saved if everyone does their part. If not, we have seen a very different version of the future. And it is not pretty. We see it in developed cities in Central Africa, where one of my staff visited recently. The strict warning she got was this: Do not drink the water. Do not brush your teeth with tap water. Use only bottled water. She even told me about running a bath only to find brown water coming out of the tap. And we only need to look as far away as Toledo, Ohio, where just last summer, residents in were warned to have no contact—zero contact—with their tap water, much less drink it, all due to a pollution incident caused by polluted agricultural runoff into Lake Erie. This was Toledo, Ohio! An American City! In 2014! We can and we must do better and why not start right here in Chesapeake Bay country, birth place of our nation.

At CBF, we are working to accelerate agricultural pollution reduction. Our strategy is to encourage the states to do more—to partner with farmers, helping them to work smarter and apply cutting edge technologies to improve water quality. But the states must set firm targets, and enforce them.

Finally, I want to remind you that it is not just the environment that is at stake. When fully implemented, the Chesapeake Clean Water Blueprint can be expected to provide an annual increase of more than $22 billion in ecosystem service benefits throughout the region. Now there’s a win-win.

Thanks for listening. I'll be back in two weeks, talking about how a number of powerful interests are suing to stop the Chesapeake Clean Water Blueprint in federal court. It is an unbelievable story, but it's true.

Thank you. I’m Will Baker, President of the Chesapeake Bay Foundation.

 


Episode #1
Bay 101
March 31, 2015

The Chesapeake Bay and its rivers and streams drain a six-state, 64,000-square-mile watershed that reaches as far north as Cooperstown, New York, and as far west as Virginia's Shenandoah Valley and parts of West Virginia. In this first-in-a-series podcast, Chesapeake Bay Foundation President Will Baker describes the good news and the bad news about the problems facing this national treasure.

Transcript

I'm Will Baker, President of the Chesapeake Bay Foundation, and I am delighted to welcome you to our new podcast series — Turning the Tide, Saving the Chesapeake Bay.

The Bay and its tributaries are as we all know stunningly beautiful and central to the culture and economy of the whole mid-Atlantic region. But beneath the surface, pollution has degraded them so severely that the states have designated many of them as "impaired." That pollution hurts all of us, degrades the economy, and is simply a rotten legacy to leave our children, our grandchildren, and even our great grandchildren.

Every two weeks, on Tuesday morning, I'll share with you my thoughts on what it will really take to turn the tide–to restore our Bay and its rivers and streams to a much better state. I'll offer why saving the Bay makes environmental, human health, and economic sense. I hope you will stay in touch and give me as much feedback as you can, including topics you'd like to hear about.

First, Bay 101. The Chesapeake Bay is an estuary—simply defined as a mix of salt water delivered from the ocean and fresh water flowing down rivers. Those rivers drain a six-state, 64,000 square mile watershed that reaches as far north as Cooperstown, New York, as far west as the Shenandoah Valley in Virginia and even parts of West Virginia and Delaware. In fact, the Bay is the largest estuary in the United States and still the most productive. The Bay system supports 18 million people living within the watershed and 3,600 species of plants and animals. That is to say, a lot of us depend on the Chesapeake. Its health—or lack thereof—touches each and every one of us.

After a heavy rain, we are advised to stay out of the water for as long as 48 hours. Polluted runoff literally pouring off city streets, residential yards, and agricultural fields fouls our waterways, making them unsafe for human contact. And pollution from agricultural runoff contaminates ground and surface water, making wells unfit for human consumption. It does not have to be this way. Scientists at some of the world's foremost research institutions have diagnosed the problems, identified the primary sources of pollution, and prescribed cures.

Fortunately, we are listening. Throughout the region, sewage treatment plants have been vastly improved. Many farmers are reducing polluted runoff. And new technologies are being developed to turn waste into clean sources of energy. After years of fits and starts, missed deadlines, and failed promises, we have a federal/state Clean Water Blueprint for the Bay and its rivers and streams. It's in place, it's mandatory, it has teeth, and it's starting to work. You can learn more about the Blueprint on our website: cbf.org. How do I know the Blueprint is working? CBF's 2014 State of the Bay report showed pollution dropping and water quality improving.

There's more good news, an independent report CBF commissioned last fall on the economics of restoration demonstrated that fully implementing the Blueprint will generate a whopping $22 billion – that's $22 billion with a "B" – annual increases in the natural benefits of land and waterways. $22 billion dollars annually, and that's just the increase.

There is a lot to celebrate. But, this is absolutely no time to be complacent. Huge challenges remain, including the fact that some states will not fully implement the Blueprint unless we keep pushing. We have got to keep the pressure on.

Our health, our economy, and the legacy we leave our children depend on the choices and actions you and I—and our elected officials—take today.

Thanks for listening. Next time, we'll talk about the largest source of pollution degrading the Bay and its rivers and streams. Agriculture. Happily, is the least expensive source of pollution to reduce.

I'm Will Baker, President of the Chesapeake Bay Foundation.


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