Md. Asserts Final Claim To Potomac
Va. Rejects Position in High Court Arguments

By Charles Lane
Washington Post Staff Writer
Wednesday, October 8, 2003; Page A14

A lawyer representing Maryland urged the Supreme Court yesterday to uphold the state's authority to regulate construction by Virginia on the Potomac River, as the justices heard oral arguments in a case that could help determine how the river's water is shared for years to come.

Andrew H. Baida told the justices that Maryland has held unquestionable power over the river since it was placed within colonial Maryland's boundaries by King Charles I of England in 1632; with that power, Baida argued, comes the power to say what Virginians can and cannot build there, including such mid-river objects as the water intake the Fairfax County Water Authority (FCWA) proposed in 1996.

"Maryland is and has been the owner of the river, and it never relinquished the sovereign authority to regulate," Baida said.

Maryland officials objected to the intake because they said it would let Virginia exploit the river's water to fuel uncontrolled suburban development of the kind that Maryland itself would not permit. When Maryland issued a preliminary denial of a permit to FCWA in 2000, Virginia sued in the Supreme Court, which exercises "original jurisdiction" in disputes between state governments. Later, in separate litigation, a Maryland judge ordered the permit to be issued, and the intake went into operation this summer.

But the case has continued because Virginia objects to limitations on the intake's volume that were imposed by the Maryland legislature.

In December 2002, a special master appointed by the Supreme Court ruled in Virginia's favor, recommending that the justices give Virginia and its citizens the right to build water intakes and other structures from its shore into the middle of the river, free of regulation by Maryland. Maryland objected to the special master's report, and the justices granted a hearing.

Arguing the case for Virginia yesterday, attorney Stuart A. Raphael told the justices, "You cannot give one state the right to control another state's water supply. If Maryland prevails, it can control growth and development in Virginia."

Given that Virginia won on every point in the case before the special master, Ralph I. Lancaster Jr. of Maine, the oral argument represented Maryland's last chance to pull out a victory.

Members of the court seemed skeptical of Maryland's claim to total control over the river, given that a pair of interstate documents dating from the 18th and 19th centuries -- the Compact of 1785 and the Black-Jenkins Award of 1877 -- seem to protect the rights of Virginians to build structures into the river.

"How is Maryland adversely affected by this intake?" Justice Ruth Bader Ginsburg asked Baida. "Is there an adverse impact, or is Maryland just trying to say, 'We are the sovereign?' "

Baida conceded that there was no adverse environmental impact, but said Maryland wanted regulatory authority to see whether "less intrusive means" of getting more water for Northern Virginia might have been available, and to "minimize the impact on the river."

Justice John Paul Stevens challenged Raphael to explain just how much freedom to use the water Virginia was claiming.

"Could they drain the river?" Stevens asked.

Raphael replied that Maryland would be protected by other agreements that guarantee a shared water supply during droughts, or by objecting to federal environmental permits that Virginia must secure to build water projects on the river.

The case is Virginia v. Maryland, No. 129, Orig. A decision is expected by July.