Maryland has lost another round in its battle with Virginia over control of the Potomac River, as an independent arbiter ruled that rapidly growing Fairfax County is entitled to draw drinking water from the middle of the river separating the two states.
The decision, released yesterday, represents a setback for the Glendening administration, which has balked for nearly three years at approving the project sought by the Fairfax County Water Authority, pointing to potential environmental harm to the river.
The arbiter, Bernard E. Penner, a former official of the Maryland Department of the Environment, found that the Virginia county should be permitted to extend an intake pipe from its shoreline into the river because it would improve the quality of drinking water supplied to its 1.2 million residents. Penner also said the state had failed to show that the pipe would harm the river.
FOR THE RECORD - An article in yesterday's Maryland section misstated the status of an arbiter in the dispute between Maryland and Virginia over the use of Potomac River water. The arbiter, Bernard A. Penner, is enforcement and compliance coordinator for the Maryland Department of the Environment, but was acting as an "independent decision maker" according to the agency's procedures. His ruling goes to department Secretary Jane Nashida, who is to review it and make a recommendation to Gov. Parris N. Glendening. The Sun regrets the errors.
But a spokesman for Gov. Parris N. Glendening vowed to "take every action necessary" to protect the Potomac and maintain Maryland's control over the river - an issue now headed to the U.S. Supreme Court.
"We have serious concerns that extension of the intake pipe would cause irreparable environmental damage by encouraging sprawl and seriously compromise water quality for thousands of residents in both Virginia and Maryland," Glendening said in a statement issued by his office.
Michael Morrill, Glendening's director of communications, said the administration is weighing whether to appeal the decision to a state Circuit Court or to pursue other unspecified avenues for blocking the water project.
The Fairfax water authority applied in December 1996 for a permit to build the water intake pipe, and Maryland environmental officials denied it a year later. The case has since gone back and forth in internal departmental appeals.
This year, Virginia officials took their case to the Supreme Court, arguing that Maryland has no legal authority over Virginia's use of the river. Maryland owns the river under a 1632 land grant from King Charles I and claims jurisdiction over construction projects that affect the Potomac. Virginia officials contend that a later compact between the states in 1785 and an arbitration in 1877 authorized their free use of the river.
Fairfax now draws water from near the Potomac shoreline, and contends that the quality of water there is inferior to what it could get from the middle of the channel.
Glendening and Maryland officials have based their resistance, in part, on a contention that Fairfax was seeking to tap the Potomac for more drinking water to supply excessive suburban development, which they say is harmful to the environment.
Virginia Attorney General Mark L. Earley issued a statement saying that the arbiter's ruling "moves us closer to providing cleaner, safer drinking water" for Fairfax residents. However, he vowed to pursue the Supreme Court case, despite an article in the Fairfax Journal last month in which he was quoted as saying the state would drop its case if the permit was issued.
David Botkins, a spokesman for Earley, said the Virginia attorney general was misquoted in that article. He said that although Fairfax has no intention to withdraw more water from the Potomac than it does now, Maryland should not be allowed to regulate or veto use of the river by Virginians.
"We're saying we shouldn't have to ask Maryland for permission," Botkins said.
Montgomery County officials, who have opposed the Fairfax project, said they were cheered by Glendening's resolve to keep fighting Virginia.
Del. Jean B. Cryor said she will introduce legislation in January to study the health of the entire river, from sewage overflows upstream to the amount of water withdrawn for drinking by jurisdictions closer to Washington.
"It's time to stop looking at this river piecemeal," said the Montgomery County Republican. "It is the nation's river flowing through the nation's capital. I want this thoroughly studied, and if it takes a decade, it's worth the wait."