- The Washington Times - Thursday, April 25, 2002

Attorneys presented closing arguments yesterday in a dispute over whether Maryland could require Virginia residents to obtain permits before draining water from the Potomac River.
Most states that border rivers split the boundaries down the middle, but Maryland owns the Potomac River outright as a result of a 1632 charter from King Charles I. A compact between the states signed in 1785, however, gives Virginia certain privileges with regard to usage of the river.
"It is inconceivable that when George Washington was sitting at Mount Vernon he would wonder what Maryland was doing," said Stuart Raphael, the attorney representing Virginia. "Virginia is given [in prior historical agreements] the clear right of access, and Maryland is not given the right to deny that."
In 1999, the Fairfax County Water Authority applied to Maryland to build an intake pipe to pump cleaner water from the center of the river. Maryland denied the permit because, it said, the additional water would allow unchecked growth in Northern Virginia. A Maryland court ultimately ruled that the permit had to be approved, but Virginia then asked the Supreme Court to answer the question of authority over the river because it felt it should not have to apply for the Maryland permits at all.
"We are pursuing it for the future," Virginia Attorney General Jerry Kilgore said in a phone interview after the hearing. Mr. Kilgore, Republican, sat silently through the two-hour deliberations inside the Prettyman U.S. Courthouse on Constitution Avenue. "When the issue comes up again, we don't want to go through Maryland first," he said.
Maryland, however, contends that the original 1632 charter, as well as other historical agreements, allow it to ask for the permits.
"Virginia does not have any claim over the river," argued Maryland Solicitor General Andrew Baida. "Use is not the same as ownership Use does not carry title, it does not carry ownership."
The hearing was held before a special master appointed by the U.S. Supreme Court to review the case. The U.S. Supreme Court has original jurisdiction in cases between two states, and has appointed Ralph Lancaster as the special master to review the case and make a recommendation.
Both attorneys cited historical Supreme Court cases as defense of their claims, including the recent dispute between New York and New Jersey over which state had ownership of Ellis Island. The court ruled that while technically in New Jersey, the island would remain under the domain of New York.
References to Founding Fathers, including Washington, George Mason, Thomas Jefferson and James Madison, were reminders that this was a long-standing debate that both states wanted resolved.
Throughout the hearing, Mr. Lancaster peppered both Mr. Raphael and Mr. Baida with questions relating to documents, charters and agreements signed over the last 200 years.
Observers expect a recommendation from Mr. Lancaster in approximately 90 days.
"We feel good about our position," Mr. Kilgore said. "You never know what they will do, but we have argued all along that Virginia residents should not be [bound to] the rules of Maryland."

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