Can Va.'s governor sip from Potomac?

Justices grill Md.'s lawyer in centuries-old dispute over who owns the river

Great Falls intake sparked case

October 08, 2003|By Howard Libit | Howard Libit,SUN STAFF

WASHINGTON - The battle for control of the Potomac River reached the U.S. Supreme Court yesterday, with Maryland arguing that documents dating to the early 17th century give it both ownership and authority to prohibit Virginia from taking water or building structures out from its shoreline.

"The government that gets to regulate is the government that owns it," said Andrew H. Baida, Maryland's former solicitor general, who argued the case on behalf of the state. "That ownership gives Maryland the right to regulate the withdrawal of water from Maryland."

The latest in centuries of disputes between Maryland and Virginia stems from the Fairfax County Water Authority's effort to build a new intake pipe near Great Falls to draw water from the Potomac for up to 1.2 million Northern Virginia residents. Fairfax is already drawing the water. The states want the court to decide whether Virginia needed Maryland's permission beforehand.

Several justices appeared skeptical of Maryland's argument, noting that previous rulings give Virginia so-called "riparian rights" to use the river in a way that maximizes the advantages of owning the adjoining shoreline.

"Riparian rights include the right to take water," said Justice Antonin Scalia, "not the right to beg Maryland for the right to take water."

Virginia's lawyers cited other documents and decisions - dating back centuries - that allowed the state to draw water without obtaining permits from Maryland regulators.

"You cannot give one state the authority to control another state's water supply," said Stuart A. Raphael, a lawyer representing Virginia. "We object to the continuation of Maryland's effort to require permits and to regulate any time we want to withdraw water or build improvements."

In particular, Raphael cited decisions limiting the authority of Western states over rivers that pass through them if their actions would adversely affect other states.

The Potomac pipe

Fairfax County wanted a 725-foot-long, 10-foot-wide intake pipe to reach cleaner water in the middle of the Potomac River - water that would require less chemicals for purification than that collected through the old intake pipe along the shore.

But the new, $10 million pipe was to extend almost halfway across the Potomac, well into the part of the river that Maryland says it owns. When the Fairfax agency sought permits for construction in 1996, the Maryland Department of the Environment rejected the request.

After a series of battles before Maryland judges and agencies, Virginia finally received the necessary permits, though for less water from the Potomac than it had sought.

The pipe opened this year, but Virginia wanted to ensure that it would never again have to seek Maryland's permission for similar projects. So it filed a lawsuit to establish that right, arguing that it never should have had to ask Maryland in the first place.

High court hearing

Because the dispute involves state governments, this is a rare case in which the Supreme Court has "original jurisdiction." That means it decides the issue in the first place, rather than acting in its usual capacity as an appeals court.

As part of that process, the Supreme Court assigned a special master, Ralph I. Lancaster Jr., to collect the facts and issue recommendations. Late last year, Lancaster upheld Virginia's position.

"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," he wrote.

The Supreme Court, which opened its 2003-2004 session with yesterday's hearing, is not being asked decide which state owns the Potomac. A 1632 land grant from King Charles I of England to Lord Baltimore clearly gives Maryland ownership of the Potomac River to the low-water mark on the Virginia side.

Instead, lawyers argued over whether subsequent documents - particularly the Virginia-Maryland Compact of 1785 and an arbitration panel's 1877 decision known as the Black-Jenkins Award - limit Maryland's regulatory authority.

The Black-Jenkins decision reaffirmed Maryland's ownership of the river from shore to shore, but recognized that Virginia possessed "a right to such use of the river beyond the line of low-water mark as may be necessary to the full enjoyment of her riparian ownership."

"Who defines riparian rights on the Virginia side of the river?" Justice John Paul Stevens asked yesterday. "Do you think Maryland has the authority to do that?"

Baida argued that the 1632 land grant gives Maryland the authority to regulate Virginia's activities in the Potomac, if the state does not act "arbitrarily or capriciously."

But Justice Stephen G. Breyer questioned how far that authority should extend. If the Virginia governor went to the Potomac and drew a bucket of water to wash his hands, Breyer asked, would he have to get Maryland's permission?

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