- The Washington Times - Tuesday, October 7, 2003

A lawyer fighting to allow Virginia to take more drinking water from the Potomac River told the U.S. Supreme Court yesterday that Maryland exploits its river ownership to control Northern Virginia’s explosive growth — the latest skirmish over river rights dating from 1777.

“You cannot give one state the right to control another state’s water supply,” argued Virginia’s special counsel, Stuart A. Raphael of McLean, whom the Fairfax County Water Authority (FCWA) retained for the case

“If Virginia prevails in this case, Virginia will regulate its residents’ use of the river and Maryland will regulate its residents’ use of the river,” he said.

The Supreme Court has the final word in a rare “original” lawsuit filed directly in the high court and casts the justices more in the role of jurors. Their decision cannot be appealed.

Mr. Raphael, who seeks a decision that also would empower other Virginia communities, saidthe FCWA should not have been forced to obtain a Maryland permit to extend its water-intake pipe 725 feet into the middle of the river, where the water is cleaner.

The court appointed Portland, Maine, lawyer Ralph Lancaster as a special master, the traditional judge’s role, to analyze the case and gather evidence.

Mr. Lancaster ruled for Virginia. Maryland objected. The justices now must decide whether to accept the Lancaster report or modify it. The special master took no part in yesterday’s hearing, but watched from a section reserved for lawyers.

Maryland argued that its powers stem literally from the right of kings, bolstered by 18th- and 19th-century agreements with Virginia.

“Maryland is, and has been, the owner of the Potomac River since 1632 … and has never relinquished the sovereign authority [a royal grant] gives it over the river,” said Andrew H. Baida, the Baltimore attorney for Maryland.

Five of the nine justices are Virginia residents, three live in the District and one in Maryland.

“There were other royal deeds, too. Different kings,” Justice Ruth Bader Ginsburg said. She was referring to a string of sometimes conflicting grants beginning in 1609 before Maryland was established.

“First in time, first in line,” responded Mr. Baida, who relied heavily on King Charles I’s grant in 1632 to Lord Baltimore of the Potomac River all the way to the Virginia riverbank.

Mr. Baida handled the dispute for seven years as Maryland solicitor general, a job he left in July. The state then became his private client. He acknowledged Virginia’s “riparian rights” to the water, use of the river bank.

Justice Antonin Scalia said, “A right is a right. … That’s the right to take water, not the right to come and beg Maryland to take water?”

The history is complex but includes King James I’s grant to Virginia in 1609 of the Northern Neck, including the Potomac, and confirmation of that grant by King James II in 1688. In 1776, Virginia’s new state constitution ceded conflicted waters to Maryland except for use of the Pocomoke and Potomac.

The disputes began in 1777 and led to a Compact of 1785, a document referred to yesterday along with the 1878 “Black-Jenkins Award,” an arbitrator’s decision fixing the Maryland-Virginia boundary at the low water mark on the Virginia side. Both states accepted that in 1878.

After fighting for five years, Fairfax installed its pipe in 2002 with the blessing of Maryland legislation and a permit. Mr. Raphael said yesterday that did not end the case, particularly since the permit limited the amount of water to be taken.

“A flow restrictor in the pipe allows Maryland to control development in Northern Virginia,” Mr. Raphael said.

“So it comes down to a flow restrictor in the pipe?” Justice Sandra Day O’Connor asked.

“No. We contend that no such authority was required in the first place,” Mr. Raphael said, adding that it should not be required in the future for state, city or county agencies, or for citizens building docks or piers.

Once Justice Stephen G. Breyer established that Virginia’s governor legally could dip a pail in the river and take water to slake his thirst, he commented, “Virginia is just taking water and happens to have a lot of people who are thirsty.”

Justice John Paul Stevens asked, “Could you drain the river?”

Mr. Raphael said federal navigation restrictions and a 1978 flow agreement bar that and limit other unreasonable uses.

Mr. Raphael said Maryland has acknowledged Virginia’s power over the years to approve permits for piers, of which 340 now extend from its side of the river. All are taxed by Virginia. Three that have restaurant businesses also are taxed by Maryland.

Maryland used its police powers over the years to regulate legal gambling on Virginia-based piers, river safety and other police issues. A bistate commission sanctions licenses to fish the river, the court was told.

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