The upcoming term of the United Stated Supreme Court will mark the tenth anniversary of the decision that ended the hundreds-of-years-long war between Virginia and Maryland over Virginia’s rights to the Potomac River. Virginia v. Maryland, 540 U.S. 56 (2003). Most of the story of the final battle in that war has remained untold, until now.
It is the story of how obscure local water officials made an astounding discovery that enabled them to channel the spirits of George Washington and George Mason to finally lay to rest the centuries-old squabble between the two states. It is the story of how Virginia regained its sovereignty, and its dignity, shook off the yoke placed upon its neck by the long departed British Crown and finally became master of its own destiny, largely on account of what one, rather unlikely, local official found.
Roiling on the River
Rivers forming the boundaries between two states are, for the most part, sensibly divided in the middle, with each state owning the river bed adjoining its territory up to the middle of the river. That, however, is not the case with respect to the Potomac. As most any Virginia school child could tell you, Maryland owns the Potomac River up to the low water mark on the Virginia shore. The reason is that the kings of England, who of course, had never been here, gave the Potomac away – twice, once to Maryland and once to Virginia.
By a charter dated 1632, King Charles I, granted a vast swath of territory, including both sides of the Potomac, to the Lords Baltimore. Virginia, on the other hand traced its claim to both sides of the river to a royal charter issued by King James I to the London Company and to a subsequent land patent issued by King James II to Thomas, Lord Culpeper.
By its constitution of 1776, Virginia recognized the 1632 grant to Maryland, ceding to Maryland ownership of the entire Potomac, but reserving to itself the right of free use and navigation of the river, together with “the property of the Virginia shores or strands bordering” the Potomac and “all improvements which have been or shall be made thereon.” Maryland responded that same year, at its own constitutional convention, with a resolution rejecting the Virginia reservation.
The art and science of drinking-water purification is an old one, tracing its origins all the way back to the ancient Egyptians, who discovered the principle of coagulation, still relied upon in water treatment today. By the mid 1990’s, water treatment was prepared to embrace the principle, fairly familiar to anyone who has ever taken a bath, that a body of water tends to be cleaner at its center and dirtier around the edges.
The Fairfax County Water Authority (“Fairfax Water”), the public utility that provides water throughout most of Northern Virginia had, since as far back as 1957, withdrawn water from the Potomac under a permit issued by Maryland. Therefore, when it was realized that huge savings in treatment costs and perhaps even an improved product could be achieved by the simple expedient of taking water from the middle of the river rather than from just offshore, it again applied to Maryland for permission.
Sinking in the Quagmire
Given the important public purpose to be served and that the request was, essentially, on behalf of one state to another, you might expect that it would be received with dignity, maturity and comity, perhaps even generosity. But you would be dead wrong. Maryland, instead, denied the requested permit and proceeded to mire Fairfax Water, simply trying to best serve its customers, in year after year of costly, desultory, Dickensian litigation conducted through Maryland’s own, hardly objective, tribunals.
When one looks at the reasons asserted by Maryland for denying the permit and subjects them to even rudimentary analysis you find that they were not even passingly plausible, and that the permit denial was motivated purely by jealousy and spite.
According to Maryland, Virginia was trying to remedy the consequences of excessive development that had resulted in silting of the Virginia shore; and Maryland did not wish to aid Virginia in overcoming those consequences. In point of fact, the engineering studies, including aerial studies, clearly showed that there was no silt build-up on the Virginia side attributable to development, and, indeed, that the water on the Virginia side was actually cleaner than that on the Maryland side, where, supposedly, only “responsible” development was permitted.
Next, Maryland insisted to the bitter end that the construction of Fairfax Water’s so called “mid-river intake” was to enable Virginia to increase its withdrawal from the Potomac. That argument was totally fatuous given that Maryland by permit could, at that time, have limited the water withdrawal to a specified amount, just as it had in 1957. Moreover, the volume of Potomac water withdrawals was already closely regulated by binding agreement among the various water utilities on both sides of the river. Finally, Fairfax Water even offered to physically restrict the amount of water that could be withdrawn, by engineering the permitted limit into the constructed capacity of the mid-river facility. Maryland would have none of it.
Perhaps Maryland’s obduracy was not that hard to understand when you realize that on other occasions, the neighbors’ squabbles over the Potomac had actually led to violence. A protracted series of confrontations sometimes between Maryland and Virginia, sometimes between one state and the citizens of the other and sometimes involving outsiders, came to be known as the “Oyster Wars” and persisted for about one hundred years.
Starting in 1830, Maryland sought to restrict oyster harvesting along the Potomac to its own citizens. Maryland also outlawed dredging, which Virginia continued to permit until 1879. In 1865, Maryland required annual permits for oyster harvesting. None of this sat well with Virginia oystermen.
Bullets not infrequently whizzed along the Potomac as the “Maryland Oyster Police” and its successor agencies sought to control poaching and maintain Maryland’s sovereignty over the river, into the 1940’s. In addition, according to John Wennersten in his 2007 book, The Oyster Wars of Chesapeake Bay, ”Maryland also harbored a grudge against Virginia that stemmed from the fact that since the seventeenth century Maryland had lost every territorial dispute it had with Virginia.”
The belligerence was not, however, entirely one sided. In 1882, Virginia Governor William E. Cameron led a force including the tugboat Victoria J. Peed against Maryland oystermen, resulting in the arrest of 46 and the seizure of seven vessels.
Fairfax Water filed its request for a Maryland permit to build its mid-river intake in 1996. That application was opposed by various Maryland officials for the spurious reasons already discussed. Late in 1997, the permit request was denied by the Maryland Department of the Environment. Fairfax Water pursued various administrative appeals through various Maryland administrative agencies for the next two years.
In 1998, Maryland’s Secretary of the Environment designated a “Final Decision Maker.” The matter was then referred to Maryland’s Office of Administrative Hearings to conduct contested case proceedings before a Maryland Administrative Law Judge. After eight days of testimony over a two-year period and various trips through the Maryland bureaucratic maze, back and forth between the Administrative Law Judge and the Final Decision Maker, the Administrative Law Judge issued an opinion recommending that the permit be granted. That recommendation was adopted by the Final Decision Maker, who ordered Maryland’s Water Management Administration to issue the permit. Still, that agency refused to comply. Instead, Maryland appealed the decision of its own administrative bureaucracy to the Maryland courts.
In addition, the issue had now become overtly political. Taking the lead, the late Maryland General Assembly Delegate, Jean Cryor (R-Montgomery), introduced and secured passage of her Potomac River Protection Act, which thwarted Fairfax Water’s plan to build the mid-river intake by imposing requirements for further, prohibitively expensive, onerous and time consuming environmental studies. Her Bill passed the Maryland Senate and received a commitment from Maryland Governor Parris Glendening to sign it.
We will, I suppose, never really know whether Delegate Cryor’s opposition, on the asserted grounds that the need for the intake stemmed from inadequately regulated Virginia development, was based on her simple inability to absorb the fact that such a contention was flatly refuted by the submitted scientific and engineering studies, or arose from simple political expediency. It must have been extremely tempting for any Maryland legislator to don the faux mantel of environmental protector by opposing a project in which no constituent had a stake.
Throughout all of this, Fairfax Water persisted, patiently slogging through the Maryland morass, presumably upon the gambler’s theory that although the game may have been rigged, it was still the only game in town. Then, a most extraordinary thing happened.
Thrown a Rope
During a session of Fairfax Water’s governing board at which the frustrating Maryland quagmire is being discussed, Member-Commissioner Paul Andino refers to the “Mount Vernon Compact.” At first, the implications of his remarks are not clear. Andino was not, to my knowledge, either a lawyer or historian, and in many ways, least likely among the Board members to be possessed of this particular historical, gold nugget. But, in those days before the full flowering of the internet when research still meant clambering among books in libraries, he was possessed of one thing that made him especially well equipped to have unearthed it – a bull dog like tenacity. Now, Andino had for us the Mount Vernon Compact, and there it was in Article Seventh.
The citizens of each state respectively shall have full property in the shores of Potowmack 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.
From its shores, Virginia was entitled, by right, to build into the river, structures such as the mid-river intake as long as they did not obstruct navigation.
As recounted by author Joel Achenbach in his wonderful 2004 book, The Grand Idea: George Washington’s Potomac and the Race to the West, on March 20, 1785, with heavy snow falling, commissioners representing Virginia and Maryland met in Alexandria to discuss issues arising from the conflicting British royal grants that put Maryland’s southern boundary on Virginia’s Potomac shore. Maryland was represented by Daniel of St. Thomas Jenifer, Thomas Stone, and Samuel Chase; Virginia by George Mason and Alexander Henderson.
George Washington, the father of our Country, was deeply interested in National cohesion and unity and had, as well, significant personal, financial, interests, attendant upon successful development of the river. After four days of discussions, Washington invited both sets of representatives to join him and reconvene at Mount Vernon. There, as Achenbach tells us, “Once in the general’s mansion, drinking his wine, the commissioners made great progress…,” culminating in agreement on what was to be known as the “Mount Vernon Compact.” The Compact was subsequently ratified by the legislatures of both states, thereby incorporating it into their respective laws.
Fairfax Water’s “rediscovery” of the Mount Vernon Compact had two significant implications. First, it meant that Virginia, and thereby Fairfax Water, had a separate, already established right to build structures into the river, apart from any “permission” it might secure from Maryland. Second, it suggested, perhaps first to the lawyers on the Board, that there was a new, independent, impartial route available to resolve the dispute and to provide Fairfax Water with any needed relief, which did not require going through Maryland’s process. That route led directly to the United States Supreme Court.
The vast bulk of the Supreme Court’s work comes from its role as the appellate court of last resort in our system, reviewing decisions of lower courts, as it did this past Term when it struck down portions of the Defense of Marriage Act. However the Constitution also vests it with another role, serving as the court of first resort with respect to disputes arising among the states. Disputes between two or more states may be filed directly in the Supreme Court, which will generally then appoint a “Special Master,” who will take evidence and hear testimony and issue a recommended decision on which the Supreme Court may then act.
Given that, under the Compact, this was no longer just Fairfax Water seeking permission under Maryland’s rules and regulations but a question of Virginia’s rights against those of Maryland, the potential existed to take our case directly to the Supreme Court. However this route also brought with it its own set of obstacles. First among these was persuading our own legal team that this was the route we wanted them to follow.
Lawyers are both by nature and training cautious and incrementalist. When I took the Law School Aptitude Test many years ago, a whole section consisted of reading a narrative and selecting the correct answer describing the narrowest, never the broadest, ruling a court could make to decide the issue presented, without unnecessarily deciding anything more. By suggesting that our case be taken directly to the Supreme Court and decided under the general principles set forth in a 200-year old document agreed between the two States, we were asking nothing less than that our lawyers swing for the fence. Something lawyers are not readily inclined to do.
The next obstacle lay in the fact that to pursue this line, the case had to become in every respect Virginia’s case, not just that of Fairfax Water. Although Fairfax Water was a creation and agency of the state, that was not good enough. Only the Commonwealth could assert its rights directly in the Supreme Court. So that’s what we needed to persuade it to do. This meant going to Richmond, meeting with the Attorney General and convincing him that we had a good case, an important case, and one that could be won.
About the time we were doing this, I happened to see then Governor Jim Gilmore at a Lincoln’s Birthday event. I am keenly aware of the “buttonholing” to which elected officials are subjected anytime they make themselves available to the public. This generally consists of the constituent’s cornering the official and trying to obtain from him or her, an on the spot commitment to support or oppose a particular position. The fervor with which this is carried out is usually inversely proportional to the serious consideration the issue merits. I would imagine that “black helicopters operated by the U.N.” was probably a frequent subject on which public officials are “buttonholed.”
So, I was more than a little reticent about approaching the Governor about the mid-river intake on the Lincoln’s Birthday occasion. At the same time, we were in conversations with the Attorney General, this was an important infrastructure project, a responsible public agency, Fairfax Water had already taken the position I was advocating, and there were very serious implications regarding Virginia’s relations with Maryland. After all, this was not me asking the Governor to make my cat an honorary colonel in the state police. So I decided to go over and talk with him.
Governor Gilmore listened politely through about the first half of my presentation, then he looked up, waved in the general direction of the far fringe of the gathering, and briskly strode off to speak with an imaginary friend. Nevertheless, in the end, our efforts to have the state enter the case were successful.
In 2000, the Supreme Court granted Virginia leave to file its complaint against Maryland. The following year the High Court referred the case to Ralph Lancaster, Jr., of Maine to act as Special Master.
Even then, Maryland could have settled this litigation; it had everything to lose and nothing to gain, but it chose not to do so. As early as March of 2000, I had publicly warned Delegate Cryor that if Maryland persisted in its adolescent bad behavior it risked not only failing in its objective to stop the mid-river intake, but risked losing its exclusive control of the river as well. And that’s what happened.
On December 9, 2002, Special Master Lancaster issued his report recommending that the Supreme Court hold that “Virginia, its governmental subdivisions, and its citizens may withdraw water from the Potomac River and construct improvements appurtenant to the Virginia shore of the Potomac River free of regulation by Maryland.”
The case was argued before the Supreme Court on October 7, 2003, brilliantly by Fairfax Water’s attorney, Stuart Raphael, appearing on behalf of the Commonwealth, less so on behalf of Maryland by in-house counsel from its Attorney General’s Office. On December 9 of that year the Court handed down its decision adopting the Special Master’s Report by a vote of 7 to 2.
In Virginia, cities are separate and independent from counties, on the Jeffersonian notion that there are only so many levels of government to which one should be accountable. No such principle moved dissenting Justices Kennedy and Stevens who opined that notwithstanding the Mount Vernon Compact, Maryland could use its police powers to regulate Virginia.
Ten years on, Fairfax Water taps the Potomac through its mid-river intake, but built at a cost measured in millions beyond the cost of the steel and concrete that went into it. It should be something of a cautionary tale for those who would obstruct critical infrastructure for purely parochial reasons. A plaque placed by Fairfax Water at the mid-river facility upon its dedication on April 11, 2003 permanently proclaims that it was built in 595 days after more than 5 years of legal battles with Maryland. Since then, those seeking to withdraw water or build into the river from the Virginia shore, must apply to Virginia not Maryland to do so; and, to paraphrase Abraham Lincoln, the Potomac flows once more unvexed to the bay.