Virginia v. Maryland

LOCATION: Pennsylvania General Assembly

DECIDED BY: Rehnquist Court (1986-2005)

CITATION: 540 US 56 (2003)
ARGUED: Oct 07, 2003
DECIDED: Dec 09, 2003

Andrew H. Baida - on behalf of the Defendant
Stuart A. Raphael - on behalf of the Plaintiff

Facts of the case

In 1632, King Charles I gave the Potomac River to Lord Baltimore and, through that charter, to the colony of Maryland. More than 360 years later, Virginia developed a plan to build a water intake pipe in the middle of the river to provide water to Virginia residents. Maryland objected to Virginia's plan and initially refused to grant Virginia a permit to build the pipe. After losing in administrative and state court, Maryland agreed to let Virginia build the pipe, but Virginia refused to let the issue die. Instead, it filed suit with the Supreme Court, asking the court to declare that while Maryland owns the river, Virginia has the right to build in it. Virginia cites a 1785 agreement between the states that gave each "the privilege of making and carrying out wharfs and other improvements" in the river. Maryland, however, argues that while Virginia may be able to build in the river, it does not have the right to draw water from the river without Maryland's consent. A "special master" appointed to evaluate the case by the Supreme Court issued a non-binding holding agreeing with Virginia.


Does Virginia have a right to build in the Potomac river (and, as a result of that building, draw water from the river)?

Media for Virginia v. Maryland

Audio Transcription for Oral Argument - October 07, 2003 in Virginia v. Maryland

Audio Transcription for Opinion Announcement - December 09, 2003 in Virginia v. Maryland

William H. Rehnquist:

I have the opinion of the Court to announce No. 129 Original, the Commonwealth of Virginia versus the State of Maryland.

This control of the Potomac River has been disputed for nearly 400 years and in this case, we consider one aspect of this dispute.

The Fairfax County Water Authority, a political subdivision of Virginia, sought a permit from Maryland to build a water intake structure extending 725 feet into the river from the Virginia shore.

Maryland refused to issue the permit for four years.

When it finally did, it plays restrictions on the amount of water that the authority could withdraw from the River.

Virginia brought this action under our original jurisdiction seeking a declaration that it has the right to withdraw water and build improvements from each shore free from regulation by Maryland.

We referred the action to a Special Master who recommended that we grant the relief sought by Virginia.

Maryland filed exceptions to the report of the Master and we now overrule those exceptions.

In the 17th century, Maryland and Virginia each claim sovereignty over the River under conflicting royal charters.

This dispute is governed by two interstate compacts designed to settle ownership and regulation of the River.

The compact of 1785 and the Black-Jenkins Award of 1877.

The 1785 compact did not address sovereignty over the River.

Among other things, however, it granted the citizens of each State full property rights in the land adjoining the River, with all the emoluments and advantages thereunto belonging as they put it and the privilege of building improvements from the shore.

We hold that this compact preserved the riparian rights of citizens of both States, subject to whatever later resolution of sovereignty would occur.

And that occurred in the Black-Jenkins Award of 1877.

That Award recognized Maryland as the owner of the riverbed up to the low watermark on the Virginia shore.

At the same time, however, the Award stated that Virginia has a right to such use of the River beyond the line of low watermark is maybe necessary to the full enjoyment of her riparian ownership.

We hold that the plain language of the Award grants Virginia's sovereign riparian rights and the River is subject only to federal common law and the limitations contained in the Award itself.

Those were that Virginia neither impede navigation or interfere with the proper use of the Maryland River by Maryland.

The Award does not allow Maryland to regulate Virginia's riparian use of the River.

If it had, the stated limitations would have been entirely unnecessary.

Finally, we reject Maryland's claim that Virginia lost her rights under the Award by acquiescing in Maryland's regulation of her waterway activities.

To the contrary, Virginia vigorously asserted her riparian rights into negotiations that led to the passage of the Water Resources Development Act of 1976.

So Maryland's exceptions are overruled, the relief sought by Virginia is granted, and the Special Master's proposed decree is entered.

Justice Stevens has filed a dissenting opinion in which Justice Kennedy has joined.

Justice Kennedy has filed a dissenting opinion in which Justice Stevens has joined.