State loses battle of river

Supreme Court decision costs Md. its traditional control of Potomac water

400-year rivalry with Virginia

Officials had sought to limit development on other shore of river

December 10, 2003|By Heather Dewar | Heather Dewar,SUN STAFF

The U.S. Supreme Court dealt Maryland a decisive defeat yesterday in its 400-year fight with neighboring Virginia over control of the Potomac River - and, by extension, the future of the land along its banks.

Although Maryland owns the Potomac, it does not own the water in it and can't impose restrictions on a Fairfax, Va., utility's use of that water, the court ruled in a 7-2 decision.

In a blunt, 12-page opinion by Chief Justice William H. Rehnquist, the court said Maryland had no right to regulate the Fairfax County Water Authority's construction of an intake pipe to supply water to 1.2 million customers.

Rehnquist's opinion said the law doesn't support Maryland's attempt to use Potomac water permits as a means of preventing "urban sprawl" in Virginia.

From now on, Virginia companies and utilities need only their own state's permission to take water from the river, attorneys for the Fairfax utility said.

The Virginia Department of Environmental Quality plans a new permit process that allows Maryland officials to consult on withdrawals, but not to limit them, the attorneys said.

Michael Powell, a Maryland lawyer who helped represent the Fairfax authority, said the ruling is a triumph for Virginia in the states' long-running rivalry.

"They fought over oysters before, and they're fighting over building permits now," he said.

Maryland officials had little to say about the long-awaited ruling. The attorney who represented Maryland before the Supreme Court said he had been ordered not to comment.

Gov. Robert L. Ehrlich Jr. said through a spokesman that he tried to settle the case, which began during the administration of former Gov. Parris N. Glendening, but found that he had no leverage.

Spokesmen for the Maryland attorney general and the Maryland Department of the Environment issued statements vowing that the two states would work together. The spokesmen said they could not answer questions.

"We're disappointed in the decision," said MDE spokesman Richard McIntire, but "we don't really believe that this decision will have any significant impact on the river or cause any undue environmental impact."

But Neal Fitzpatrick, executive director of the Audubon Naturalist Society, said he fears that development might take so much water out of the river that there won't be enough left for aquatic life.

"If I were a fish, I would be more concerned than ever," said Fitzpatrick, whose group, with members in Maryland, Virginia and the District of Columbia, filed a friend of the court brief on Maryland's behalf.

Maryland holds legal title to the Potomac, up to the Virginia shoreline, under a 1632 land grant from King Charles I. But the two neighbors have quarreled over the river since colonial times.

In 1785, George Washington summoned the feuding parties to his riverfront Mount Vernon estate for a peace conference. That deal and an 1877 follow-up agreement confirmed Maryland's title but granted Virginians full rights to use and "improve" the river from their shore. Those agreements formed the basis of yesterday's Supreme Court ruling.

In the 1930s, Maryland claimed the right to issue permits for water users and construction projects. Virginia went along until 1996, when the Fairfax authority sought a permit to build a new intake pipe and a pier extending 725 feet into the river. The Maryland Department of the Environment refused to issue the permit.

"It was pure politics," said Powell, a former MDE general counsel who represented the Fairfax utility in the permit negotiations. "Some groups were upset that Virginia didn't have as good a Smart Growth policy as Maryland did, and they got to the governor's office, and the governor [Glendening] ordered MDE not to grant the permit."

Virginia sued and won a series of victories, each of which Maryland appealed. Meanwhile, in 2001 Maryland actually granted the Fairfax utility a permit, with restrictions imposed by the Maryland General Assembly.

By persisting in its legal battle, "Maryland has forfeited much of the control over the river," Powell said yesterday. "Everybody believed they had the right to put conditions on any permits. ... They no longer have that right."

"If this case had been left to the localities and the water suppliers, this suit never would have happened," said Stuart Raphael, who argued the case for the Fairfax utility.

"It was just a handful of Maryland politicians who messed things up."

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