WASHINGTON – Maryland and Virginia will take a centuries-old water rights dispute to the Supreme Court on Tuesday, asking the justices for the first time to decide who controls the Potomac River.
The court will consider the extent to which Maryland, the owner of the Potomac, can restrict Virginia’s right to build on its side of the river and draw water from it.
“Virginia says that Maryland has no right to regulate the use of the river by Virginia citizens,” said Maureen Dove, chief of litigation for the Maryland Attorney General’s Office. “But Maryland owns the Potomac River.”
Virginia officials “don’t believe we need Maryland’s permission,” to do construction along the Virginia shore and to draw water from the river, said Carrie Cantrell, a spokeswoman for the Virginia Attorney General’s Office.
The dispute dates back to 1632 when King Charles I declared Lord Baltimore the owner of the river. But in 1785, the states signed a compact in which they agreed to share the river for various purposes, giving Virginia the freedom to regulate construction along its side of the Potomac.
The latest dispute began more than two centuries later — in 1996 — when Maryland officials denied a permit to the Fairfax County Water Authority in Virginia to build a new, larger water-intake pipeline in the river.
Maryland eventually lost a court fight over that case. But Virginia was not satisfied and petitioned the Supreme Court in 2000 to decide whether it can use the Potomac free of regulation.
The Supreme Court appointed a special master to evaluate the case. In 2002, Special Master Ralph I. Lancaster Jr. issued a report siding with Virginia.
Lancaster declined to comment on the case. But he wrote in his report to the court that the multiple agreements the states have had since the 1785 compact justify Virginia’s control over its side of the Potomac.
“On balance, Maryland has not made a strong enough showing to justify holding that Virginia has lost its solemnly agreed to and carefully preserved compact rights,” Lancaster’s report says.
But Maryland said in its argument to the court that it has done nothing to weaken its control of the river.
“Maryland has the right to regulate the Potomac because it is the owner of the river and has not relinquished this fundamental sovereign power,” state officials wrote.
The Audubon Naturalist Society, which joined the case, is siding with Maryland.
“Virginia wants the certainty that they can withdraw as much water as possible,” without Maryland’s consent, said Christopher Man, an attorney speaking on behalf of the environmental organization.
But Dove said water quantity is not an immediate problem.
“At the moment, there’s enough water for everyone,” she said. She added that a “low-flow allocation agreement” between Washington-region governments requires them to adjust their levels of water withdrawal in case of low flows.
But Man, who thinks the case should be dismissed, believes the dispute could just get worse.
“The D.C. area is growing so fast, that the concern is that there won’t be enough water for everyone,” he said. “This case is being used for what could be a future water war between Virginia and Maryland.”