WASHINGTON – The Supreme Court’s mediator in the Potomac River feud between Maryland and Virginia said an arbitrator’s recent ruling will not affect his handling of the case, but he acknowledged that the decision could pressure the states to act on the issue.
If this month’s decision does lead to a successful compromise between the two states, Ralph Lancaster said, “any resolution the parties are comfortable with, is a resolution I’m comfortable with.”
“I don’t monitor what they’re doing, and they don’t monitor what I’m doing,” said Lancaster, the court-appointed special master in the case. “We’re two ships passing in the night.”
But officials for the two states are digging in their heels for now — for the record, at least.
Maryland Gov. Parris Glendening is urging state officials to appeal the arbitrator’s ruling that would allow Fairfax County to build a water intake pipe in the river. A decision could come as early as next week.
Virginia’s attorney general, meanwhile, is vowing to press the issue on to the Supreme Court.
The arbitrator’s decision to allow the extension of a water intake pipe — which Glendening has described as a threat to the environment — comes nearly five years after the Fairfax County Water Authority applied for a permit with the Maryland Department of the Environment.
Maryland’s permission is needed to build because, under a 17th-century royal charter, the northern state controls the Potomac to the low-tide mark on the Virginia side.
Fairfax County’s current water intake pipe is near the Virginia shore, where it is more prone to being clogged by silt. Virginia officials argue that an intake pipe farther out in the river would provide cleaner drinking water without major environmental damage.
Maryland Department of Environment official Bernard Penner, who was tapped to act as arbitrator in the dispute, agreed with Virginia officials in his Nov. 7 ruling. He said that the proposed intake pipe did not pose enough of a threat to be canceled, particularly if Fairfax took certain safeguards.
While Penner’s decision has no direct bearing on the Supreme Court case, parties in the dispute acknowledged that it could be used in court briefs that are due in December or could be used as leverage in negotiations between the states.
Maryland officials are still deciding whether they would appeal the case to the circuit courts. Glendening is “strongly urging an appeal,” an aide to the governor said.
Virginia officials, for their part, are not ready to rest with Penner’s ruling.
“We are pleased Maryland has recognized this project is in the public interest,” Virginia Attorney General Mark Earley in a prepared statement. “There are, however, significant legal issues remaining that we will continue to pursue through the United States Supreme Court.”
Both sides are slated to revisit the Supreme Court case Dec. 8, when the initial briefs in the case are due. The briefs will likely focus on documents that each side argues validate its control over the river.
Maryland relies on a 1632 decree from King Charles I that the state said grants it control over the river.
Virginia contends that under three agreements — beginning in 1785 and continuing through the Potomac River Compact of 1958 — it does not need Maryland’s permission to build “upstream of the tidal reach of the Potomac River,” if the construction is an appendage of facilities on the Virginia shore.
If the two sides press the case through the Supreme Court, Lancaster has said it could take years to reach a final settlement.