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River Flows to Supreme Court

This Tuesday, Oct. 7, the Supreme Court will hear arguments regarding the dispute over the Potomac River.

Justices from the United States Supreme Court will hear arguments from Virginia and Maryland next Tuesday, Oct. 7, in a dispute about who owns the Potomac River and rights to withdraw water from it.

Maryland's boundaries extend across the entire Potomac to the Virginia shore.

"Maryland has never relinquished, at any time during its ownership of the Potomac River over the course of five centuries, 10 British monarchs and 43 United States presidents, the sovereign authority its ownership rights confer over the activities that Virginia claims are beyond Maryland's power," wrote Maryland Attorney General J. Joseph Curran Jr.

But disputes between the two states over rights to the river have existed for more than 400 years since Colonial times.

"Contrary to Maryland's claim that its ownership of the Potomac River has been well settled at all times since 1632, control of the Potomac has been disputed for centuries," wrote Virginia Attorney General Jerry W. Kilgore. "The original territories of Virginia and Maryland were the subject of inconsistent and conflicting royal charters and patents."

In 1776, Virginia ceded its territorial claim to the river but retained rights to navigate and use it.

MORE RECENTLY, the Fairfax County Water Authority sought permits from Maryland in 1996 to construct a $10 million water intake pipe extending 725 feet from the Virginia shore into the Potomac. Fairfax said it needed move the intake away from the shore to lessen the sediment, likely to contain contaminants, in the water. The intake will serve 1.2 million people in Northern Virginia.

Virginia says it should be able to withdraw water without special permission from Maryland.

"During the previous hundreds of years in which ownership and control of the Potomac River was disputed, Maryland had never prevented any Virginian from withdrawing water from the River or building improvements appurtenant to the Virginian shore," wrote Kilgore.

Maryland claims that it has owned rights to the River since 1632, when the Potomac was included in territory granted by King Charles I to Lord Baltimore. Maryland claims their ownership of the River was affirmed in Virginia's Constitution in 1776 and a century later in a case.

Maryland says that Virginia is required to seek permission to built such structures.

“Everyone had a bottom line that Maryland is in charge of the River — that’s what is being challenged now,” said Del. Jean Cryor (R-15). Cryor has been involved in the case since its beginning.

THE SUPREME COURT on May 30, 2000, agreed to hear Virginia's Bill of Complaint after Virginia grew frustrated with length of time it took Maryland to issue the permit.

Legal disputes between states are automatically sent to the Supreme Court.

On Oct. 10, 2000 the Court appointed Special Master Ralph I. Lancaster Jr. to hear both sides. Special Masters direct proceedings in cases between states, and make recommendations to the Supreme Court.

“This case is limited to consideration of Maryland’s attempt to regulate construction in and water withdrawal from the Potomac by Virginia and its citizens," wrote Lancaster in his report to the Supreme Court.

Lancaster wrote that the fundamental question in this case is whether Virginia has the unrestricted right to construct improvements in the Potomac and to withdraw water from the River.

"I recommend that the Court enter judgment declaring that Virginia and 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.

IN THE MEANTIME, Maryland issued the permit in January 2001 and Fairfax County Water Authority has completed construction on the $10 million intake pipe. Maryland claimed in May of 2001 that the issue is now moot and requested that the case should be dropped.

But Virginia pushed forward with the case, asking the court to establish that Virginia doesn’t need to seek permits before taking water out of the Potomac in the future.

"A live controversy susceptible of meaningful relief continues to exist," wrote Lancaster, in his decision made in July 2001.

Both states are mindful of possible future implications from the court's ruling.

“Virginia has a very different view of natural resources than Maryland has,” said Cryor. “We’ll see the river deteriorate even further.”