High court to hear suit on Potomac

Virginia arguing for right to build water intake pipe

Maryland rejects claim

1785 pact debated in clash over growth, environment issues

May 31, 2000|By Lyle Denniston and Joel McCord | Lyle Denniston and Joel McCord,SUN NATIONAL STAFF

WASHINGTON - Returning for a fourth time to a two- centuries-old conflict, the Supreme Court agreed yesterday to try to sort out competing claims by Maryland and Virginia to the waters of the Potomac River.

Those claims go back at least to a 1785 agreement, signed by the two states at George Washington's home, Mount Vernon, on a bluff overlooking the Potomac.

This time, the conflict runs deeper. Virginia's desire to build a new pipe to gather water from the Potomac for its residents to drink has grown into an ultimate test of the two states' control over the river.

Virginia is seeking to throw off any controls that Maryland has over the river waters - especially the reaches of the Potomac above the District of Columbia.

Maryland counters that its controls on the waterway - necessary to protect the region's environment - have been exercised for generations, and that Virginia long complied with them without complaint.

If the court follows its customary process in cases involving two or more states, its ruling could be several years away.

Officials in both states expressed optimism about the outcome.

Maryland's attorney general, J. Joseph Curran Jr., predicted that the court would uphold his state's "historic right to regulate the Potomac River," including regulation of structures that would be built into the waters that run within Maryland's border.

Virginia's attorney general, Mark L. Earley, said he was confident that the court "will uphold our right to an adequate supply of drinking water for the health and safety of approximately 2 million Northern Virginia residents."

Test of rights

Virginia has concluded that if it is allowed to build a 725-foot pipe reaching almost to the middle of the river, it will gain access to the cleaner waters that flow in that part of the Potomac.

With both states describing their conflict as a basic test of their rights, the court appeared to have stepped in to define those rights more precisely. It will do so in a case that is the rarest of lawsuits - one filed by a state against another state, suing directly in the highest court and thus bypassing all lower courts.

Virginia sued in February, after four years of what it described as rising frustration over its efforts to obtain permits from Maryland authorities for the new pipe.

Maryland, with ownership rights that it traces back to a royal charter in 1632, insists that its territorial integrity is at stake. Its ownership, it notes, extends to the location on the Virginia shore to which the water recedes at its lowest normal level.

Environmental claims

Virginia contends that its right to decide its own fate, free from meddling by Maryland, is at issue. And, it argues, "Maryland does not own the water in the river."

Both lay claim to the higher ground of guarding the region's environment.

Maryland says it is acting to protect the waters of the Potomac, one of the main feeder rivers for the Chesapeake Bay; it sees the rapid development of Northern Virginia communities, bringing a rising demand for Potomac water, as a growing threat to the environment.

Its fears are echoed by an environmental group, the Audubon Naturalist Society, which entered the case yesterday to support Maryland.

Treatment cost high

Virginia contends that it needs to protect the health of its citizens from diseases that sometimes result from bacteria bred in the Potomac's muddier waters that run close to shore. Because its water intake unit is near the shore, it can tap only those waters. Virginia spends heavily to treat this water for human use.

Maryland tried to deflect the Virginia lawsuit, arguing that the justices should refuse to hear the dispute so long as Maryland's Department of the Environment was studying whether to grant Virginia new permits.

Studies under way

But Virginia appeared to have gained the court's attention by pointing out that the Maryland General Assembly passed legislation this year, restricting even further the chance that Maryland would allow Virginia to extend its water-gathering further into the Potomac.

That legislation, signed into law May 18 by Gov. Parris N. Glendening, forbids new intake pipes in the Potomac until state and federal studies are completed on the effect that such withdrawals would have on water quality. Virginia estimates that this process will take up to three years.

In its lawsuit, Virginia contended that Maryland legislators adopted "a freeze," with the aim of curbing development in Northern Virginia.

But state Sen. Christopher Van Hollen Jr., a Montgomery County Democrat who was a sponsor of the new measure, said it was written to try to accommodate concerns Virginia had about gaining access to cleaner water.

Virginia criticized

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