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Virginia Wins Supreme Court Case

Commonwealth may build into Potomac River without approval of Maryland

Virginia and its citizens have the right to build improvements in the Potomac River without receiving approval from Maryland, the U.S. Supreme Court ruled on Dec. 9.

The case is not subject to appeal.

The 7-2 ruling stems from a 1996 dispute; the Supreme Court automatically hears disputes between states. John Paul Stevens and Anthony Kennedy wrote the dissenting opinions.

In 1996, Fairfax County Water Authority asked the State of Maryland, which owns the river, for a permit to build a $10 million water-intake pipe that extends 725 feet into the middle of the Potomac from the Virginia shore.

The Maryland Department of the Environment initially denied a permit for the pipe, but later approved it in 2001, after Virginia filed a Bill of Complaint with the Supreme Court. The pipe has already been built.

Virginia pushed forward with its case to secure what it asserted were rights to build “improvements” in the river without needing to apply to Maryland in the future. The Commonwealth argued that agreements more than 100 years old entitle it to make use of the Potomac River without asking permission.

"We conclude that the Black-Jenkins Award gives Virginia sovereign authority, free from regulation by Maryland, to build improvements appurtenant to her shore and to withdraw water from the River, subject to the constraints of federal common law and the Award,” Chief Justice William Rehnquist wrote in the majority opinion.

Justice John Paul Stevens, in his dissent, disagreed that Virginia should be automatically allowed to build any improvements or water-intake pipes.

“It necessarily follows, I believe, that such a use may only be made with the consent of the sovereign that owns the river,” Stevens wrote. Maryland’s ownership of the river was not in dispute.

Justice Anthony Kennedy agreed with Stevens. “Whether the Governor of the Commonwealth, in 2003, may cool himself in the River — or in this case, build a water pipe for the benefit of communities not on the riverbank — without so much as an ‘if you please’ to the State of Maryland entirely depends upon whether … Maryland has in some way ceded its sovereignty over the River.”