WASHINGTON – Maryland officials have appealed an arbiter’s decision that would let a Fairfax County, Va., agency extend a water intake pipe farther into the Potomac River.
In its appeal filed in Baltimore Circuit Court, the state argues that independent arbiter Bernard Penner made “both factual and legal mistakes” in his Nov. 7 decision, and it asked the court to delay construction on the water intake pipe until appeals have been exhausted.
The Tuesday filing came one day before the deadline to appeal Penner’s ruling and just days before a Friday deadline for officials from Maryland and Virginia to file briefs in a Supreme Court case over who controls the Potomac.
An attorney for the Fairfax County Water Authority defended Penner’s ruling and said that it is “ironic Maryland has appealed its own decision.”
“The judge (Penner) and the Maryland Department of the Environment found that it is in the public interest (to build the pipe) and there are no significant adverse conditions,” said Stuart Raphael, counsel for the water authority.
This week’s filings are the latest developments in a centuries-old spat between the two states that was renewed about five years ago when the water authority applied for a permit to extend its intake pipe, because the current pipe was clogging in shallow water.
Maryland’s permission is needed to build because, under a 17th-century royal charter, the northern state controls most of the Potomac. But the Maryland Department of Environment rejected the application for the pipe, which Gov. Parris Glendening has described as a threat to the environment.
Virginia officials contend that Maryland dragged its feet on the permit until Virginia put the case on trial, appealing the permit rejection to arbitration and, earlier this year, asking the Supreme Court to step in to the dispute.
Penner, a Department of Environment official tapped to act as arbiter in the dispute, sided with Virginia in his Nov. 7 ruling, saying that the proposed intake pipe did not pose enough of a threat to be canceled, particularly if Fairfax took certain safeguards.
Maryland Assistant Attorney General Adam Snyder defended the decision to appeal Penner’s ruling. “People are people” and they make mistakes, Snyder said, and Penner’s ruling is a good example of that.
Snyder said he did not think the dispute over the Department of Environment’s handling of the permit — now a state circuit court case — would affect the separate Supreme Court case.
“I don’t think it’s going to affect it (the high court case) at all,” said Snyder. “The issue will keep going on the Maryland track.”
But Raphael disagreed.
“Maryland’s actions have shown why the Supreme Court needs to resolve this,” he said, warning that, without a ruling, Maryland will continue to interfere in Virginia’s affairs on the Potomac.
The special master appointed by the Supreme Court to oversee the case, Maine lawyer Ralph Lancaster, has said that the current appeals process will not affect his view of the matter. He has described the two cases as “two ships passing in the night.”