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Water: It's All Up for Grabs

Supreme Court will decide what rights Maryland, Virginia have to the Potomac River.

The fight over the Potomac River isn't about ownership. It's about control.

This week that fight made its way to the United States Supreme Court.

"Maryland argues that the river belongs to Maryland," said its Attorney General J. Joseph Curran Jr., on the front steps of the United States Supreme Court this Tueday, Oct. 7. "As the owner, someone has to make reasonable decisions as to its use."

Past treaties give Virginia rights to use the river and rights to build improvements from the Virginia shore, said Stuart A. Raphael, special counsel to the Commonwealth of Virginia.

"We have the strong belief that Virginia should not have to endure Maryland's permitting process," said Virginia Attorney General Jerry W. Kilgore, after the United States Supreme Court hearing.

"It's about control. In the past administration, there was a willingness [of Maryland legislators] to use the Potomac River as a way to control growth in Virginia. We think that is inappropriate," Kilgore said. "The Fairfax County Board ought to make its own decisions about growth in Virginia."

DISPUTES BETWEEN the two states over rights to the river have existed since their original charters were issued more than 400 years ago.

More recently, the Fairfax County Water Authority sought a permit from Maryland, in 1996, to construct a $10 million water intake pipe that extends 725 feet from the Virginia shore into the middle of the Potomac, across from Riley's Lock in Potomac. Fairfax said it needed to move its intake pipe away from the shore to lessen sediment — likely to contain contaminants — in the water. The intake pipe will serve 1.2 million people in Northern Virginia.

After initially denying the permit, Maryland issued the permit in January 2001 and the Fairfax County Water Authority finished construction of the project earlier this year.

But Virginia pushed forward with its case, asking the Supreme Court to establish Virginia's right to take water out of the Potomac in the future without first seeking a permit from Maryland.

Special Master Ralph I. Lancaster Jr., appointed by the Supreme Court on Oct. 10, 2000, recommended that the Supreme Court side with Virginia.

"Its citizens have the right, free of regulation by Maryland, to construct improvements in the Potomac … and to withdraw water from the Potomac," wrote Lancaster.

SUPREME COURT JUSTICES spent a half hour hearing Maryland's attorney, Solicitor General Andrew H. Baida, and then Virginia's attorney, Raphael. Justices bombarded each lawyer with constant questions designed to solicit information while revealing holes in each of their cases.

"Maryland is and has been the owner of the river since 1632," said Baida. "Maryland has a right to regulate its river."

But Virginia's charter is older than Maryland's, said Justice Ruth Bader Ginsburg.

"Virginia's charter was annulled in 1624," said Baida.

"Are you saying the Compact of 1785 and the Black-Jenkins Award are simply wrong?" asked Chief Justice William H. Rehnquist.

"All I am saying is that Maryland had the authority because of plain language of the charter. Maryland's title has not changed one iota in 400 years," said Baida.

Maryland doesn't dispute Virginia's rights to use the river, Baida said, including Virginia's right to make improvements along its shore.

"IT'S INCONCEIVABLE that drafters of the Compact would have thought that Maryland could regulate Virginia's improvements built from its shore," said Raphael for Virginia, citing the 1785 agreement between the two states that ensured Virginia's right to navigate the river.

While Virginia doesn't dispute Maryland's ownership of the river, Raphael said, Virginia never ceded its riparian rights.

"If Maryland doesn't have the right to regulate the river, who does?" asked Justice John Paul Stevens. "Could you drain the river?"

Raphael cited the Low Flow Allocation Agreement of 1978 as one method that would ensure the river's health.

"At the time the [Compact of 1785] was written, I don't think anyone thought that reduction of the water would be so great that it would reduce the low water mark," Stevens said. "Could they change the boundaries of the state by doing that?"

Is Virginia subject to control of the owner of the river, Stevens asked.

"No state can control another state's access to water supply," said Raphael.

"If Virginia prevails, Maryland will regulate its use of the river and Virginia will regulate its use of the river," he said. "If Maryland prevails, they can control growth and development in Virginia."