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Justices
to take up
interstate water fight
NT Times - 4/28
In
the latest state-versus-state battle over water rights to reach
the Supreme Court, the justices agreed today to decide whether
Virginia needs Maryland's permission to draw water from the Potomac
River, which forms part of the boundary between the two.
A
special master appointed by the court more than two years ago
to resolve this chapter of a dispute that dates from the 18th
century supported Virginia in a report to the justices late last
year. Maryland objected, and the justices announced today that
they would hear arguments and decide the matter themselves in
the court's next term.
There
is no dispute that Maryland owns the river under a land grant
from King Charles I to Lord Baltimore in 1632. At issue are the
regulatory rights that come with ownership, and it has been evident
for centuries that King Charles did not have the last word. The
two states entered into a compact in 1785 that gave each the right
to fish and "the privilege of making and carrying out wharfs
and other improvements" as long as navigation was not obstructed.
Arbitration in 1877, approved by Congress in 1879, placed the
interstate boundary at the low-water mark on the Virginia side.
The
current dispute began with a 1996 plan by Fairfax County, a fast-growing
area on the Virginia side, to replace an old intake pipe with
a longer one extending 725 feet into the 2,000-foot-wide river,
in order to avoid the muddy water nearer the shore. Maryland maintained
that the Fairfax County Water Authority needed a permit, which
it then refused to issue.
After
losing administrative and state court rulings, Maryland yielded
and the pipe was built. Virginia pursued the matter by filing
a case directly in the Supreme Court to establish its future rights
to withdraw water without Maryland's permission. Maryland responded
by seeking a broad declaration of its right to control all activities
taking place "in the bed and waters of the Potomac River"
up to the low-water mark on the Virginia side.
The
case, Virginia v. Maryland, No. 129 Original, has become a symbol
of the struggle to control growth and natural resources in a region
where the political culture has been one of competition rather
than cooperation.
After
accepting 25 volumes of historical documents and other material,
the special master, Ralph I. Lancaster, a lawyer from Portland,
Me., urged the two states to settle their problems amicably through
mediation.
But
five months of closed-door mediation failed, and Mr. Lancaster
made his formal recommendation to the justices in December, rejecting
Maryland's position and urging the justices to "enter judgment
declaring that Virginia and its citizens have the right, free
of regulation by Maryland, to construct improvements in the Potomac
appurtenant to the Virginia shore and to withdraw water from the
Potomac." He based his decision on several pieces of historical
evidence, including a Supreme Court decision in 1910 that recognized
Virginia's independent rights to the Potomac.
Under
the Supreme Court's so-called original jurisdiction to hear disputes
between states, the justices can adopt a special master's recommendations
or permit the states to make further arguments. Maryland argued
in its appeal, known technically as "exceptions to the report
of the special master," that "the river belongs to Maryland
and is subject to Maryland's sovereign and regulatory authority."
Maryland said Virginia had long acquiesced to that understanding.
Virginia
argued in response that it had objected since 1976 to Maryland's
insistence on its right to review requests to withdraw water,
but that the issue had not been joined until this dispute because
Maryland had previously always granted the permission that Virginia
sought. Fairfax County had received a series of approvals from
Maryland to increase withdrawals from the river, which now provides
about half the county's water supply. Because of a surging population,
Virginia's demands on the river have grown faster than those of
Maryland, and the river itself is under increasing pressure from
withdrawals that now average 400 million gallons a day, up 19
percent from those of 10 years ago.
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