WASHINGTON – A 371-year-old dispute over the Potomac River came down to an hour of legal arguments Tuesday before the Supreme Court, where lawyers for Maryland and Virginia each staked their state’s claim to control of the river.
“Maryland is and has been the owner of the Potomac,” said Andrew Baida, solicitor general for Maryland. “Maryland has a right to regulate what goes on in its territory.”
Virginia attorney Stuart Raphael did not dispute Maryland’s ownership of the river, but said a 1785 compact signed between the states allows Virginia to control activity on its side of the river.
“Virginia can withdraw water and make improvements appurtenant to its shore without having to get permission from Maryland,” Raphael said.
The justices — who have never ruled in the Potomac dispute — questioned both sides in the hour-long hearing. No date has been set for a decision by the high court, which could come any time between now and the end of its current session next June.
The roots of the dispute date back to colonial times. A 1632 charter by England’s King Charles I granted ownership of the entire river to Maryland, but the 1785 interstate compact gave the commonwealth the right to regulate the river on the Virginia side.
The feud flared up most recently in 1996, when Maryland denied a Fairfax County (Va.) Water Authority request to build a water intake structure that would extend to the Maryland portion of the river.
Maryland eventually lost that fight in court. But in 2000, Virginia asked the Supreme Court to settle the dispute over the river once and for all.
“Maryland regulated Virginia’s improvement on the shore,” Raphael said, in regards to the construction of the pipe. He added that “no permit was required in the first place.”
Justice Ruth Bader Ginsburg asked Baida how the whole river-regulation issue affects Maryland. The justices also challenged Maryland’s over-reliance on ownership rights, when, as Justice Antonin Scalia said, Virginia did not contest ownership.
In response to Ginsburg’s question, Baida noted that Fairfax County wanted to extend its pipe over 700 feet into the river, prompting Maryland to see if there were “less-intrusive alternatives available.”
Baida also said that Maryland’s regulatory power is implied if it has jurisdiction of the river. While he admitted that Virginia has certain water rights, he said that the compact recognizes the differences in jurisdiction and property rights among states.
“It confirms Maryland’s regulatory power,” Baida said.
“Maryland had this power as a result of the plain language of the charter,” he said. “Maryland’s title has not changed one iota in almost 400 years.”
The court also challenged Raphael’s argument that Virginia had special rights to the river, with Justice Anthony Kennedy asking if the commonwealth could be taking matters beyond the compact.
Raphael said that all Virginia was trying to do was keep another state from imposing its will on the commonwealth.
“Virginia has the right to regulate its citizens’ use of the river,” he said. “If Maryland prevails, they can control growth and development in Virginia.”
Tuesday’s arguments were in response to a report issued last year by a court-appointed special master, who concluded that Virginia should be allowed to use the river free of Maryland regulation.