Virginia v. Maryland (12/09/2003)

Questions presented: (1) Do the rights granted to Virginia pursuant to Clause IV of the Black-Jenkins Award of 1877, Article VII of the Compact of 1785, and Article VII, Section 1, of the Potomac River Compact of 1958, apply upstream of the tidal portion of the Potomac River? (2) Do Marylands interstate compact obligations preclude it from requiring that Virginia, its governmental subdivisions and its citizens apply to Maryland for a waterway construction permit in order to build improvements appurtenant to their properties on the Virginia shore of the Potomac River? (3) Do Marylands interstate compact obligations preclude it from requiring that Virginia, its governmental subdivisions and its citizens apply to Maryland for a water appropriation permit in order to withdraw water from the Potomac River?

BY SHELLY ROSENFELD, MEDILL NEWS SERVICE

Virginia's and Marylands centuries-old Potomac River rights dispute dating from the days of Lord Baltimore has floated to the surface. The disputes outcome will determine the extent each state can control the river.

The issue is whether Virginia has a right to build in the Potomac River to withdraw water for its citizens, and whether Maryland can regulate Virginias construction on the river.

"The Fairfax County Water Authority, which is a political subdivision of the commonwealth of Virginia, had requested Marylands permission to build this waterway intake pipe [725] feet into the river," Andrew Baida, a lawyer for Maryland, said. "Initially, that application was denied. In a span of several years, Fairfax County ultimately prevailed in the administrative and judicial review proceedings . . . ."

Maryland initially denied the permit in 2000 because of fears of a trench polluting the water, and because increased water supply would encourage northern Virginia development. Virginia should clean up the water close to the bank by controlling it from northern Virginia suburbs, Maryland argued. Although a Maryland administrative and state court ruled in favor of a Virginia pipe permit, Maryland lawmakers capped the water amount.

Virginia filed a petition with the U.S. Supreme Court to obtain future rights to withdraw water from the river without Marylands permission. Under the Constitution, the Supreme Court has original jurisdiction on disputes between states. The water from the pipe would be used for northern Virginias 1.2 million residents.

The Fairfax County Water Authority built the pipe and Virginia residents began using it as the case pended before the Supreme Court.

Maryland says it controls the Potomac River ever since King Charles Is gift of the river to Lord Baltimore in 1632. Through that charter, the state argues, it belongs to the colony of Maryland.

"Theyre absolutely relevant. Its a history lesson for modern times," said Carrie Cantrell, spokeswoman for the Virginia Attorney Generals office. "We believe that these are compacts that have been agreed upon between the commonwealth of Virginia and the state of Maryland."

Maryland, however, argues that while Virginia may be able to build in the river, it does not have the right to draw water from the river without Maryland's consent.

Virginia contends it was not required to obtain Marylands permission to build because of the Potomac Compact of 1785, and the Potomac River Compact of 1958. Both allow Virginians to build "wharves and other improvements" on the Potomac River as long as they dont tamper with navigation.

The Supreme Court appointed Richard I. Lancaster of Portland, Maine, as Special Master to examine the dispute.

According to the Special Masters report, the Black-Jenkins Award of 1877, "placed the interstate boundary at the low-water mark on the Virginia shore of the Potomac."

"We do recognize that the Black-Jenkins Award of 1877 did clarify the rights of Virginia citizens, the riparian use of their side of the Potomac River. We have always worked with our sister state citizens," Maryland Attorney General Joseph Curran said.

In December 2002, Lancaster announced a non-binding ruling in support of Virginias claims, concluding that the 1785 Compact and the Black-Jenkins Award gave Virginia the right to use the river beyond the low-water mark as necessary to the full enjoyment of her riparian rights.

"Virginia. . . may withdraw water from the Potomac River and construct improvements. . . free of regulation by Maryland," Lancaster wrote in his report. "Maryland has failed to establish that Virginia has lost any rights under the Compact of 1785. . . ."

Maryland asked the Court to overrule the Special Master's recommendation. On Feb. 24, 2003, the Court awarded the Special Master $95,378.62 for work done during the second half of 2003, and two months later, on April 28, the Court agreed to hear arguments in the case during its 2003-04 term.

If the Court overrules the recommendation and rules in Marylands favor, "We continue to have a permitting process when theres an application for an improvement that comes into the Maryland property," Curran said.

The two states argued before the Supreme Court on Oct. 7, the first day of the 2003-04 term. During oral argument, Stuart A. Raphael, the lawyer representing Virginia, argued that the Special Master's report should be sustained.

"The issue, though, is whether Maryland gets to decide in the first instance what Virginia's rights are, and this Court has never given one State the authority to control another States water supply," Raphael said in oral argument.

"The Black-Jenkins arbitrators rejected Virginia's claim to any title to the middle of the river," Baida said in oral argument. "They set Virginia's boundary at low-water mark on the Virginia side."

On Dec. 9, 2003, the Court issued its opinion, favoring Virginia. In a 7-2 decision, the Court held 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.

"The Court rejects the historical premise underlying the argument that the (1785 Compact's) silence must be read in Maryland's favor because her sovereignty over the River was 'well-settled' by the time the 1785 Compact was drafted," wrote Chief Justice William Rehnquist for the majority. "The Courts own cases recognize that the scope of Maryland's sovereignty over the River was in dispute both before and after the 1785 Compact...Accordingly, the Court reads (1785 Compact) simply to guarantee that each States citizens would retain the right to build wharves and improvements regardless of which State ultimately was determined to be sovereign over the River."

Justices John Paul Stevens and Anthony Kennedy dissented.