- The Washington Times - Wednesday, May 31, 2000

The Supreme Court agreed yesterday to decide Virginia's historic fight with Maryland to draw more Potomac River water, employing a rarely used constitutional tool designed to settle boundary battles that once caused wars.

In the brief asking the justices to decide the simmering feud, Virginia officials quoted the statement of Maryland state Sen. Clarence W. Blount, Baltimore City Democrat, that "if Virginia and Maryland were independent states, we would be at war over this."

The high court accepted the case after Virginia complained about a series of Maryland actions "thwarting" Fairfax County Water Authority's request to build a new water intake near Lowes Island, above Great Falls and upstream from the Fairfax-Loudoun county line, that would reach far enough out toward the river's center to collect cleaner water.

"The purpose is to freeze Virginia's use of the river and to control Northern Virginia's economic growth," Virginia Attorney General Mark L. Earley charged May 2 in a final brief imploring the court to take the case.

Under a 1632 grant from England's King Charles I, Maryland owns the entire Potomac River to the opposite shore with Virginia, as well as to the high-water mark in West Virginia, which in 1910 lost a 19-year Supreme Court fight to move the state boundary offshore.

A 1785 compact between Maryland and Virginia, modified in 1958, permits "improvements appurtenant to the Virginia shoreline" such as wharfs, Mr. Earley said. He said an 1879 arbitration award ratified by Congress applied the compact "above the Great Falls as well as below."

Maryland contends the compact does not apply above the point where the river's waters are affected by tides, and that access to non-tidal water is subject to its regulations.

Maryland Attorney General J. Joseph Curran Jr. yesterday defended his state's right to regulate an intrusion "more than one-third of the way across the Potomac River within Maryland territory" and predicted victory to preserve rights that state has defended for two centuries.

"We believe that the Supreme Court will uphold Maryland's historic right … to review proposed construction activities within the Maryland portion of the river," said Mr. Curran, whose position is supported by the Audubon Naturalist Society, which filed a friend-of-the-court brief.

The justices agreed to hear the controversy, not as an appeal of a lower court ruling like most of the 7,000 matters they consider each term, but as a trial court under the "original jurisdiction" invoked fewer than 200 times since the court began operating in 1789. "Original jurisdiction" may be used for disputes between states and the federal government, among the states, or in cases involving foreign diplomats.

Such cases generally involve boundaries, water, coal or oil the kinds of issues that historically have led to wars, like the 1835-36 Toledo War between Michigan and Ohio, resolving an 8-mile difference of opinion on the boundary and making Toledo part of Ohio.

Justices will appoint a special master to hear testimony, review exhibits and recommend a decision, which the justices may accept or reject after hearing arguments from the states.

Virginia says the application it filed in 1996 was doomed even before Maryland enacted a law May 18 that effectively put it on hold for three more years. The law requires that new pipes may only replace older ones to prevent an increase in amount of water drawn from the river, and it stipulates that new pipe be at least 30 inches below the river's historic drought level.

"The new legislation guarantees that it will remain so for many more years, and perhaps forever," Mr. Earley said in asking the court to break the gridlock so it can avoid potential health problems and interrupted water supplies.

But the Supreme Court method it chose can be far from speedy.

The oldest original case pending, Arizona vs. California, was filed on President Truman's last full day in office, Jan. 19, 1953. The swiftest decision on a modern original case came when South Carolina's challenge to the 1965 Voting Rights Act was rejected seven months and a day after it was signed into law.

It took Virginia 53 years to get an order that West Virginia repay $12,393,929.50 as its share of the state public debt with interest after the states split in 1861 at the start of the Civil War.

A Maryland legislator who helped stall the Fairfax County plan, Delegate Jean B. Cryor, Montgomery County Republican and a sponsor of the bill that became law in May, said it was her request that sparked the original public hearing. She became involved after being alerted by Montgomery Blair High School teacher John Mathwin, who canoes in the river.

"To me it's modern-day strip mining," said Mrs. Cryor, who lives in Potomac. "The nation's river is under assault and the abuse cannot continue."

She said her main fear is the plan to dynamite the riverbed in laying pipe and to install other structures above the surface for access to the works. She dismissed the relevance of claims that the river has less sediment and pollutants in one part than another.

"No one's arguing about that, but the water still has to go to a water treatment plant," she said.

"Our ability to provide clean water to our citizens, free from obstruction by Maryland, is at the heart of this case," Mr. Earley said yesterday. "We look forward to presenting the facts and are optimistic the court will uphold our right to an adequate supply of drinking water for the health and safety of approximately 2 million Northern Virginia residents."

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