Virginia takes water dispute to Supreme Court

Proposed Potomac intake is basis of feud with Md.

February 19, 2000|By Lyle Denniston and Joel McCord | Lyle Denniston and Joel McCord,SUN STAFF

WASHINGTON -- The commonwealth of Virginia asked the U.S. Supreme Court yesterday to order the state of Maryland to clear the way for a project to draw drinking water for Virginians from the Potomac River above Washington.

In a lawsuit filed directly with the justices, bypassing lower courts, Virginia argued that Maryland officials are insisting illegally on veto power over a water intake tube that would extend beyond Virginia's shore to the Potomac's main channel.

Maryland owns the river under a 1632 land grant from King Charles I and has jurisdiction over construction projects that affect it. The ownership was upheld by an arbitration award approved by Congress in 1879.

The Fairfax County Water Authority, which supplies drinking water to 1.2 million customers in Northern Virginia, applied in December 1996 for a permit to build the pipe, and the case has gone back and forth between administrative law judges at the Maryland Department of the Environment ever since.

"All reasonable efforts to resolve this dispute informally have been exhausted," Virginia's lawyers contended in the lawsuit.

The delay, they said, "has exposed and continues to expose Virginia water users to the serious risk of interrupted water supply, disinfection by-products and waterborne pathogens that elude current treatment capabilities."

In addition, the commonwealth's lawyers said, the delay has cost Virginia water users several hundred thousand dollars a year to treat water drawn from an intake close to Virginia's Potomac shore.

Because that intake is so close to the shore, Virginia contends, the quality of water it draws is inferior to that it could pull from the main channel. It said the project would have no effect on the environment or public health, or in the use of the river for navigation and recreation.

The dispute turns on land-use issues almost as much as on water rights.

Maryland officials have said that Virginia's land-use policies have led to the pollution the Fairfax Water Authority says it is trying to avoid by extending its intake pipe 725 feet offshore.

Virginia, saying it needs the project to protect its citizens' health by getting access to higher-quality water in the Potomac's main channel, says that "improper political influence" has led Maryland Gov. Parris N. Glendening and other officials to block construction for more than two years.

The lawsuit said that 31 members of the Maryland General Assembly introduced a bill this month to block the new project "until un-named `studies' are completed at some indeterminate time in the future."

Virginia complained specifically about Del. Jean B. Cryor, a Montgomery County Republican, and quoted her as saying at a public hearing in 1997 that she would never allow the intake to be built.

Cryor said yesterday that Virginia has caused its own problems by allowing development close to the shoreline and shouldn't be allowed to escape those problems by extending the intake pipe.

"This is another version of strip mining," she said. "First they destroy the shoreline, then they move on. There's no justification for the pipe when by cleaning up the shoreline they can solve their problem."

Maryland has 60 days to answer the lawsuit.

The Constitution allows one state to sue another in the Supreme Court instead of filing the case in lower federal courts first. The justices have no binding duty to hear such disputes, but they do so about once a year. Most such cases are boundary disputes, but the court often has heard disputes over water rights.

If the court agrees to take such a case, it usually takes a minimum of three years to reach a decision.

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