Maryland, Virginia Take River Dispute to High Court

WASHINGTON – Attorneys for Maryland and Virginia made their final pitches Wednesday to a Supreme Court special master in a long-running feud over access to the Potomac River.

Maryland has for centuries exercised sole control over the river, up to the low-water line on the Virginia side. But Virginia officials argued Wednesday that the commonwealth never gave up the right to draw drinking water from the river or build structures on their side of the shore.

"We've had these rights all along," Virginia Attorney General Jerry Kilgore said. "The first time we were denied, we stood up and said, `Hold it.'"

But Maryland Assistant Attorney General Andrew Baida urged Special Master Ralph Lancaster not to give in to "the politics of the moment" but to preserve Maryland's historical record of ownership.

"Maryland is not asking the court to do anything extraordinary or new," unlike Virginia, Baida said.

The case began in 1996, when Maryland blocked Fairfax County's request to build a water intake pipe in the middle of the river. Maryland lawmakers at the time said unchecked development in northern Virginia was threatening water quality.

Fairfax County was eventually granted permission for the project, but that did not prevent the commonwealth from suing in 2000.

The case went to the Supreme Court, which has jurisdiction over interstate disputes. The court appointed Lancaster to hear the states and report back to the justices.

In court Wednesday, attorneys gave Lancaster a history lesson on control over the Potomac, invoking a 1632 charter issued by King Charles I; citing a letter from James Madison to Thomas Jefferson regarding a 1785 compact; and pointing to documents and statements from attorneys general of the last century.

Both sides agree that the first time Virginia actually applied for a water-use permit was not until 1957.

Stuart Raphael, a private attorney representing Virginia, said he did not know why Virginia applied for a permit at all then. For 172 years before that, he said, from the time of the 1785 Potomac River compact between the two states, Maryland made no attempt to regulate Virginia's access to the river.

As early as the late 18th century, there were questions about exactly how much control Maryland had, said Raphael, who paraphrased a letter to Jefferson in which Madison worried that the compact would be interpreted to mean that "Virginia has relinquished its rights to the river."

He added that Maryland also granted the District of Columbia the power to control wharves on both sides of the Potomac when the city was created.  Raphael said Virginia does not seek unrestricted access across the boundary, such as lottery rights to boats on the river.

But Baida argued that Virginia has long considered the river to be Maryland's, citing statements to that effect by Virginia attorneys general dating back to 1900.

When Lancaster interrupted to note that even attorneys general "make mistakes sometimes," Baida replied that if they were mistakes, "they were repeated again and again and again.'

"These views and opinions have been shared by administrations . . . on both sides of the river," Baida said.

Baida also cited "hundreds" of more recent letters from Virginia agencies referring residents to Maryland for permission to build on the river.

There is no deadline for Lancaster to make a recommendation to the justices. A spokesman for the Virginia Attorney General expected it would take several months.

Neither side anticipates Lancaster will recommend a trial. If either side disagrees with Lancaster's recommendation, they will have the opportunity to argue their case before the justices.