- The Washington Times - Tuesday, December 10, 2002

A special master, appointed by the U.S. Supreme Court, yesterday recommended that the court side with Virginia in a centuries-old water dispute with Maryland.
"The Court [should] enter judgment declaring that Virginia and its citizens have the right, free of regulation by Maryland, to construct improvements in the Potomac appurtenant to the Virginia shore and to withdraw water from the Potomac," Special Master Ralph I. Lancaster said in his recommendation.
The dispute began when Maryland's Department of the Environment rejected a permit request from the Fairfax County Water Authority in December 1997 to build a water intake pipe in the Potomac River to serve its 1.2 million customers. According to the authority, water drawn through the existing intake pipe is too muddy. Instead of pumping water from a pipe located at the shore, the proposed pipe would extend 725 feet into the river and collect clearer water to dispense through the region.
The Fairfax water authority appealed to a Maryland administrative law judge, who ruled that the pipe could be built.
Virginia then appealed the case to the Supreme Court because it did not believe it needed Maryland's permission in the first place.
The Supreme Court has not announced when it will make a decision on the case, and Mr. Lancaster's recommendation is not binding. It would be surprising, however, for the court to disregard the opinion of the special master.
Virginia officials are confident the decision will be upheld, and welcomed the recommendation.
"Ensuring that Virginians have access to water in an environmentally sound way will help ensure that Northern Virginia remains vibrant and strong. I hope that the Supreme Court agrees with the special master's recommendation, so Virginia and Maryland can move forward and enjoy a friendly relationship," said Virginia Attorney General Jerry Kilgore, a Republican.
Stuart Raphael, attorney for the Fairfax County Water Authority, agreed.
"I think it is the right decision, and the master made a lot of very good points," he said.
"I was cautiously optimistic about [our chances] after the hearing in April that the winds were blowing in the right decision."
Should the Supreme Court accept Mr. Lancaster's decision, as expected, Maryland Attorney General J. Joseph Curran Jr. will file an exception to the special master's ruling.
"Maryland has a responsibility, as owner of the Potomac River for nearly 400 years, in caring for this important natural resource to the fullest extent possible," said Mr. Curran, a Democrat.
The whole mess began in 1632 when King Charles I endowed a charter of land what would become Maryland to Lord Baltimore. The charter defined the southern border as the southern edge of the river, contradicting the usual practice of splitting the river between two territories.
Virginians have been protesting the king's decision ever since.
Late 18th-century disagreements between the two states over Virginians' use of the river led to the meeting at Mount Vernon. Representatives from both states wrote the Compact of 1785, which was supposed to settle the matter.
It grants Virginians the right to fish, crab and build structures such as piers as long as they don't block the river.
It didn't settle anything.
Maryland had argued in this latest flare-up that Virginia had waived its rights to the land as a result of the Compact of 1785.
In his recommendation, Mr. Lancaster said that this was not the case.
"Maryland has not made a strong enough showing to justify holding that Virginia has lost its solemnly agreed to and carefully preserved Compact rights," he said.
Construction for the intake pipe, as a result of the Maryland judge's decision, began last year. It is nearly complete, Mr. Raphael said.
The pipe runs 725 feet offshore and will pump 312 million gallons of water a day into the region, providing Northern Virginia with half its water supply, Mr. Raphael said.

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