Virginia v. Maryland, 124 S.Ct. 598, 2003 LEXIS 9192 (2003).

Josh Clemons, M.S., J.D.

On December 9, 2003, the U.S. Supreme Court ruled that the Fairfax County, Virginia, Water Authority legally may build a structure to divert water from the Potomac River for use in Virginia without being subject to regulation by the State of Maryland, despite the fact that the river lies entirely within Maryland’s borders. The 7-2 majority based its decision on its interpretation of key provisions of two historical documents. Chief Justice Rehnquist delivered the Court’s opinion; Justices Kennedy and Stevens filed dissents.

Background – Centuries of Dispute
Maryland and Virginia have bickered over control of the Potomac River since the 1700s. The roots of the dispute reach even farther back in time: Virginia’s claims go back to a 1609 charter from King James I and a 1688 patent from King James II, both of which included the Potomac. Maryland’s claim dates to a 1632 charter from King Charles I, which also included the Potomac. In its 1776 constitution Virginia recognized the validity of the 1632 charter, but reserved the rights of “navigation and use” of the Potomac. Maryland’s constitutional convention shortly afterward passed a resolution rejecting Virginia’s reservation.

For nine years the states quarreled over navigational and jurisdictional issues. In 1785, at the urging of George Washington, the states agreed to a binding compact. The 1785 compact recognized, among other things, both states’ rights to navigate the river. Of particular moment in the present case is Article Seventh of the compact, which provides

The citizens of each state respectively shall have full property in the shores of Potowmack [sic] river adjoining their lands, with all emoluments and advantages thereunto belonging, and the privilege of making and carrying out wharves and other improvements, so as not to obstruct or injure the navigation of the river.

The compact did not, however, settle the issue of the exact location of the boundary between the states. Ninety-two years would pass before binding arbitration awarded ownership of the bed of the Potomac to Maryland by establishing the boundary at the low-water mark on the Virginia shore. Article Fourth of the 1877 award is the second key provision interpreted by the Court in the present case. Article Fourth of the award states

Virginia is entitled not only to full dominion over the soil to low-water mark on the south shore of the Potomac, but has a right to such use of the river beyond the line of low-water mark as may be necessary to the full enjoyment of her riparian ownership, without impeding the navigation or otherwise interfering with the proper use of it by Maryland, agreeably to the compact of seventeen hundred and eighty-five.

The Modern Conflict
Maryland instituted a permitting program for waterway construction and water withdrawal on the Potomac in 1933. Over the years, starting in 1957, Maryland issued many of these permits to various Virginia entities without objection. In 1996, the Fairfax County Water Authority (FCWA) applied for permits to build a 725-foot water intake structure to supply water to northern Virginia, site of some of Washington D.C.’s most booming suburbs. Maryland denied the permit – a first. Maryland officials believed granting the permit would be detrimental to their state by encouraging sprawl in Virginia, and claimed that FCWA had not adequately demonstrated need for the project. After fruitlessly seeking administrative remedies, Virginia filed a complaint with the U.S. Supreme Court in March 2000 seeking a declaration that Maryland lacked regulatory authority to veto the project. (In 2001, Maryland approved the permit, but with the condition that FCWA install a restrictor to limit withdrawal.)

The Court accepted the case under its original jurisdiction over controversies between states.1 As it typically does in original jurisdiction cases, the Court referred the complaint to a Special Master for factfinding and recommendation. The Special Master, Ralph I. Lancaster, Jr., of Maine, reviewed evidence submitted by both states and recommended that the Court rule for Virginia because, in his opinion, Maryland did not have authority to regulate Virginia’s rights under the 1785 compact and 1877 award. Maryland opposed this recommendation on two grounds: first, that as sovereign over the river to the Virginia border it had regulatory authority; and second, that even if Virginia’s rights under the compact and award were unrestricted, Maryland had acquired the right to regulate by way of Virginia’s acquiescence to its regulation since 1957.

The Court’s Analysis
The Court agreed with both states that the 1785 compact and 1877 award were determinative. Starting with the 1785 compact, the Court observed that Article Seventh, quoted above, is silent concerning regulatory authority, while other articles about other rights (for example, fishing) speak explicitly of regulatory schemes. Virginia argued that the compact’s structure indicated the states’ intention to define clearly the circumstances under which one state’s citizens would be under the jurisdiction of the other, and therefore Article Seventh’s silence meant each state would regulate its own citizens under that article. Maryland argued that its sovereignty over the Potomac was well settled by 1785, so Article Seventh should be interpreted in Maryland’s favor. The Court sided with Virginia after noting the fact that the states’ boundary was not finally determined until 1877, so sovereignty over the river could not have been well settled by 1785. In 1785, the Court said, the states merely agreed to protect the rights of both states’ citizens to build structures; questions of regulatory authority were postponed until sovereignty over the river was decided.

The 1877 arbitration decided the sovereignty question in Maryland’s favor, by drawing the boundary line at the Virginia shore’s low-water mark. Nonetheless, even though the Potomac is an entirely intrastate, Maryland river, the Court read the “plain language” of Article Fourth as recognizing in Virginia a sovereign right – that is, a right Maryland cannot regulate - to use the Potomac’s waters.2

Maryland argued that even if Virginia did have such a right, it lost it by acquiescing for years in Maryland’s regulation of water withdrawal and waterway construction. Among other things, Maryland had taxed structures, issued licenses, and exercised exclusive criminal jurisdiction on its side of the state boundary – policing activities normally carried out by a sovereign. The Court deflated this argument by focusing solely on the states’ relationship vis-à-vis water withdrawal and waterway construction activities. In 1976, Virginia protested Maryland’s assertion of an exclusive right to withdraw water; thus, Virginia had not in fact acquiesced to Maryland’s assertion of regulatory authority over withdrawals and construction, and Maryland’s acquiescence argument fails.

The Dissents
Justices Stevens and Kennedy filed separate dissenting opinions, and each joined the other’s opinion. Justice Stevens saw a much simpler issue: Maryland is sovereign, Virginia is riparian, so the question is whether riparian landowners’ rights to withdraw water can be restricted by the sovereign. Under common law, the answer is “yes.”

Justice Kennedy undertakes a more extensive analysis. Unlike the majority, he finds that Maryland had clear title to the river in 1785, because the 1877 award (approved by both states and Congress) declared that Maryland’s “clear title to the whole River” dated back to 1632.3 The fact that Virginia disputed title between 1785 and 1877 has no force. The decisive question, then, is whether Maryland waived sovereignty at some time since 1785.

Justice Kennedy interprets the 1785 compact as a mutual recognition of rights of access to the river, to protect each state’s citizens in case the other state ultimately was found to have full title to the river. When Maryland was determined to have title, the compact worked as a waiver of sovereignty only to the extent that Maryland could not exclude Virginia from the river. Maryland’s police powers remained intact. Maryland can, therefore, restrict Virginia’s water withdrawals so long as such restriction does not amount to exclusion.
Unless, of course, Virginia’s rights were expanded by the 1877 arbitration award. Here, Justice Kennedy rejects the majority’s reading of the “plain language” of Article Fourth and concludes that the award simply recognizes Virginia’s riparian (but not sovereign) rights.

Justice Kennedy ultimately declares that the proper question would have been whether Maryland’s regulation in this case amounted to an exclusion of Virginia, and not whether Maryland has the right to regulate Virginia at all. He also expresses concern that the majority decision contains no principle limiting Virginia’s withdrawals, and that more complex questions about the power of one state to regulate another have been circumvented.

Conclusion
A 7-2 majority of the Supreme Court overruled Maryland’s objections to the Special Master’s report, and entered the decree proposed by the Special Master affirming Virginia’s sovereign rights under the 1877 arbitration award to build structures appurtenant to its shore and withdraw water from the Potomac River without regulation by Maryland. The effect of this case on other interstate water disputes may be limited, for two reasons. First, the decision turned on interpretation of historical documents unique to this case – the 1785 compact and 1877 arbitration award. Second, the Potomac River, although practically serving as the border between Virginia and Maryland, in fact belongs entirely to Maryland. Conflicts generally involve interstate waters, not intrastate ones. As Justice Kennedy points out in his dissent, interstate disputes are governed by the federal common law of equitable apportionment.4 The Court’s decision leaves open the question of what law will be applied when, in the future, Maryland objects to the amount Virginia withdraws – an objection that, when one considers the growth of Virginia’s D.C. suburbs, seems inevitable.

Endnotes
1. U.S. CONST. art. III, § 2, cl. 1.
2. Virginia v. Maryland, 124 S.Ct. 598, 2003 LEXIS 9192 at * 36 (2003).
3. Id. at *48 (Kennedy, J., dissenting).
4. See Josh Clemons, Water-Sharing Compact Dissolves, WaterLog 23:3, 1 (2003), available at http://www.olemiss.edu/orgs/SGLC/MS-AL/Water Log/23.3watershare.htm .