It became apparent by 2006, that the U.S. Environmental Protection Agency (EPA) and the states were not taking actions sufficient to achieve the goal, and the Chesapeake Bay Foundation (CBF) began to explore whether a federal lawsuit might achieve what C2K and two previous agreements had not.
In 2007, the Governors of the Bay states and the EPA announced that they would not meet the 2010 goal and that at current levels of effort it would take decades to implement some strategies to reduce pollution, while others might never be implemented.
In October 2008, CBF and a group of partners sent a notice of intent letter to the Bush Administration's EPA saying that we would sue if it did not use its existing authorities to set science-based pollution limits, provide accountability, and impose consequences for failure.
The partners included: the Virginia State Waterman's Association, the Maryland Watermen's Association, the Maryland Saltwater Sportfishermen's Association, former Maryland Governor Harry Hughes, retired Maryland Senator Bernie Fowler, former Virginia legislator and Natural Resources Secretary W. Tayloe Murphy, and former Washington D.C. Mayor Anthony Williams
While some discussions occurred, there were no serious negotiations. Absent progress, CBF filed suit against EPA on Jan. 5, 2009.
The Obama Administration took office on Jan. 20, and EPA's Administrator Lisa Jackson was confirmed on Jan. 22.
Settlement discussions were begun with the new Administration. On May 12, 2009 President Obama issued an Executive Order calling the Chesapeake Bay a "national treasure" and instructing his administration to exercise leadership and develop a federal strategy to restore the Bay. Reports on the strategy were due in September, a draft strategy in November, and a final strategy on May 12, 2010.
At the same time, the Executive Council (the states, the Chesapeake Bay Commission, and EPA) pledged to accelerate efforts to reduce pollution and set short-term milestones that they could be held accountable for meeting.
CBF welcomed the Executive Order, but criticized the milestones as not ambitious enough saying that they took credit for work already in the pipeline.
Negotiations continued, and in September the federal judge hearing the case directed the parties to either proceed to trial or place the case on hold during negotiations. CBF and EPA agreed to put the suit on hold while continued negotiations were underway.
Those negotiations have been long and hard-fought. This historic settlement provides a legally binding, enforceable commitment that EPA will take specific actions under their current authority to ensure that pollution to local rivers, streams, and the Chesapeake Bay is reduced sufficiently to remove the Bay from the federal "dirty waters" list. It is comprehensive, and includes accountability and consequences for failure.
In addition, CBF specifically incorporated the TMDL process in the settlement, including science-based limits, milestones, requirements that state plans must hit numeric pollution reduction targets, and that EPA must impose specific sanctions for failure. Unlike the TMDL, under this agreement CBF can go back to court if either the states or the federal government do not deliver on their commitments.