Court Rules for Virginia in Potomac Conflict
Virginia v. Maryland,
124 S.Ct. 598, 2003 LEXIS 9192 (2003).
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
Marylands borders. The 7-2 majority based its decision on its
interpretation of key provisions of two historical documents. Chief
Justice Rehnquist delivered the Courts opinion; Justices Kennedy
and Stevens filed dissents.
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: Virginias 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.
Marylands 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. Marylands constitutional convention
shortly afterward passed a resolution rejecting Virginias 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 Virginias 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 Virginias rights
under the compact and award were unrestricted, Maryland had acquired
the right to regulate by way of Virginias acquiescence to its
regulation since 1957.
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 compacts
structure indicated the states intention to define clearly the
circumstances under which one states citizens would be under the
jurisdiction of the other, and therefore Article Sevenths 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 Marylands
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 Marylands
favor, by drawing the boundary line at the Virginia shores 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 Potomacs waters.2
Maryland argued that even if Virginia did have such a right, it lost
it by acquiescing for years in Marylands 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 Marylands
assertion of an exclusive right to withdraw water; thus, Virginia had
not in fact acquiesced to Marylands assertion of regulatory authority
over withdrawals and construction, and Marylands acquiescence
Justices Stevens and Kennedy filed separate dissenting opinions, and
each joined the others 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
Marylands 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 states 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. Marylands police powers remained
intact. Maryland can, therefore, restrict Virginias water withdrawals
so long as such restriction does not amount to exclusion.
Unless, of course, Virginias rights were expanded by the 1877
arbitration award. Here, Justice Kennedy rejects the majoritys
reading of the plain language of Article Fourth and concludes
that the award simply recognizes Virginias riparian (but not sovereign)
Justice Kennedy ultimately declares that the proper question would have
been whether Marylands 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 Virginias withdrawals, and that
more complex questions about the power of one state to regulate another
have been circumvented.
A 7-2 majority of the Supreme Court overruled Marylands objections
to the Special Masters report, and entered the decree proposed
by the Special Master affirming Virginias 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 Courts 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
Virginias D.C. suburbs, seems inevitable.
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