- The Washington Times - Monday, September 8, 2008


Business owners along the Alexandria waterfront last week won a partial court victory that would allow them to build up their wharves despite the federal government’s claim to the property dating to the presidency of George Washington.

Wharf reconstruction might be good for the waterfront’s boating, retail and entertainment businesses, but Justice Department attorneys say it could infringe on the government’s ownership of the Potomac River waterway.

“We are reviewing the court’s opinion, and no determination has been made as to the government’s next step,” said Andrew Ames, Justice Department spokesman.

Maryland ceded its part of the property now known as the District of Columbia to the federal government under a 1791 land grant. The government’s property rights under the land grant “included the bed of the Potomac River to the high water mark on the Virginia shore.”

But times have changed.

The Alexandria waterfront has evolved from a navigable waterway used mostly for maritime shipping and fishing to more of a commercial and residential area built partly on infill soil and rocks.

The U.S. District Court for the District of Columbia re-examined whether centuries-old ownership rights should continue to determine who controls the property.

The dispute arose from questions by such business owners as Robinson Terminal Warehouse Corp. and Old Dominion Boat Club about whether they could rebuild and possibly extend wharves along the waterfront. Wharves refer to platforms supported by pilings built out from the shore into waterways.

Old Dominion Boat Club uses wharves for its members to dock boats. Robinson Terminal Warehouse provides commercial shipping services.

The Army Corps of Engineers said no construction to extend the wharves is allowed without their permission or an act of Congress. Even then, the property could be used only for public purposes.

The business owners want to use the property for private enterprise, which included building a fence around the wharves to keep out unwanted visitors.

They said the government owns only the navigable portion of the Potomac River under the 1791 land grant, which should not include the waterfront.

Property owners along the waterfront can decide when and where to build their wharves, they said.

“Neither party is correct,” said the ruling by U.S. District Judge Henry H. Kennedy Jr.

The federal government owns the property from the riverbed all the way to the shoreline in Alexandria, the ruling said.

However, the government can control only structures that could interfere with navigation along the Potomac River.

“While Old Dominion [Boat Club and other businesses have] a right to lay fill and construct wharves on the bed of the Potomac River, Old Dominion’s right is not absolute,” the ruling said. “It is instead a qualified right that is subject to the United States’ authority to regulate navigation on the Potomac River.”

In 1939, the Army Corps of Engineers established “harbor lines” in the Potomac River that determined where the infill stopped and the navigable waterway begins.

Those lines set the limits of the business owners’ right to build wharves, the court said.

The judge also disagreed with the government’s argument that the business owners could use their waterfront property only for public purposes, citing previous court decisions saying “there is significant authority stating that [waterfront property] owners can construct wharves and lay fill for private purposes.”

Above the Law runs on Mondays. Call Tom Ramstack at 202/636-3180 or e-mail By Tom Ramstack.

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