- The Washington Times - Monday, November 27, 2000

An arbitrator's decision to allow Fairfax County, Va., to build a water intake pipe in the Potomac River could pressure Maryland and Virginia into ending their feud over the river, the U.S. Supreme Court's mediator in the case said.

If the decision does lead to a successful compromise between the two states, "any resolution the parties are comfortable with is a resolution I'm comfortable with," said Ralph Lancaster, the court-appointed special master in the case.

"I don't monitor what they're doing, and they don't monitor what I'm doing," said Mr. Lancaster. "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 N. Glendening is urging state officials to appeal the arbitrator's ruling. A decision could come as early as this week.

Virginia Attorney General Mark Earley, meanwhile, is vowing to press the issue on to the U.S. Supreme Court.

The arbitrator's decision to allow the extension of a water intake pipe which Mr. 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 the proposed intake pipe did not pose enough of a threat to be canceled, particularly if Fairfax took certain safeguards.

While Mr. 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 next month or could be used as leverage in negotiations between the states.

Maryland officials still are deciding whether to appeal the case to the circuit courts. Mr. Glendening is "strongly urging an appeal," an aide to the governor said.

Virginia officials, for their part, are not ready to rest with Mr. Penner's ruling.

"We are pleased Maryland has recognized this project is in the public interest," Mr. Earley said 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 likely will focus on documents that each side argues validate its control over the river.

Maryland relies on a 1632 decree from King Charles I that 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, Mr. Lancaster has said, it could take years to reach a final settlement.

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