CHARLESTON — For 400 years Maryland and Virginia have disputed control of the Potomac and its North Branch, since both states’ original colonial charters grant the entire river rather than half of it as is normally the case with boundary rivers.
In its first state constitution adopted in 1776, Virginia ceded its claim to the entire river but reserved free use of it, an act disputed by Maryland.
Both states acceded to the Compact of 1785 which grants Maryland the river bank-to-bank from the low water mark on the Virginia side, while permitting Virginia full riparian rights short of obstructing navigation.
When the State of West Virginia was founded in 1863, the new government in Wheeling inherited this age old fight with “The Old Line State” and the battle has continued for over a century and a half.
In fact, sensing the level of chaos taking place in the nation during the mid-1860s to be the perfect time to strike, the State of Maryland actually laid claim to lands in the new state that had long been held by Virginia — land north of the South Branch (all of Mineral and Grant Counties and parts of Hampshire, Hardy, Tucker and Pendleton Counties).
Maryland’s persistence in claiming the lands eventually forced the Supreme Court to take up the issue in 1910, ruling that Maryland did not have a claim to the counties in question.
For over 85 years, the battle fell largely silent, as the Maryland Department of the Environment (MDE) routinely issued permits applied for by Virginia and West Virginia entities concerning use of the Potomac.
However, in 1996 the MDE denied a permit submitted by the Fairfax County Water Authority to build a water intake 725 feet (220 m) offshore, citing potential harm to Maryland’s interests by an increase in Virginia sprawl caused by the project – and so the fight was reignited.
After years of failed appeals within the Maryland government’s appeal processes, in 2000 Virginia took the case to the Supreme Court of the United States, which exercises original jurisdiction in cases between two states. Maryland claimed Virginia lost its riparian rights by acquiescing to MDE’s permit process for 63 years (MDE began its permit process in 1933). A Special Master appointed by the Supreme Court to investigate recommended the case be settled in favor of Virginia, citing the language in the 1785 Compact and the 1877 Award. On December 9, 2003, the Court agreed in a 7-2 decision.
Unfortunately, the court’s ruling did not consider West Virginia’s case and in recent years, the State of West Virginia has found itself increasingly at odds with its neighbor to the northeast.
Things have in fact gotten so bad that West Virginia Attorney General Patrick Morrisey sent a letter to the neighboring state threatening to sue Maryland if its leaders continued to “limit West Virginia’s access to the Potomac River.”
The initial letter argued Maryland’s time-consuming and costly permit process hinders population growth and commercial development in the Eastern Panhandle – growth that is projected to increase the region’s daily demand for water by approximately 2 million gallons.
“It is believed new development, already under construction, will spur other companies to consider locating in the Eastern Panhandle, creating additional jobs and increasing residential demand for water,” said Morrisey.
Today, Morrisey announced that the State of Maryland has stated that it intends to cease a permitting process that restricted West Virginia’s use of the Potomac River, “an unlawful procedure that hinders economic growth in the Eastern Panhandle.”
Maryland Attorney General Brian E. Frosh and Secretary of the Environment Benjamin H. Grumbles signed a letter that acknowledged West Virginia’s right to the Potomac River and agreed to cease further review and issuance of water appropriation and use permits for West Virginia users.
“I welcome Maryland’s willingness to cease its efforts to regulate West Virginia’s use of the Potomac River,” Attorney General Morrisey said. “Its unequivocal acknowledgement of West Virginia’s right to the river represents an important step in protecting residential and commercial development in a rapidly-growing part of our state. My office continues to review the matter and will evaluate what next steps, if any, are necessary.
“Given Maryland’s admission of West Virginia’s rights, we no longer believe litigation is necessary at this time. Instead, we intend to work cooperatively with stakeholders both in West Virginia and Maryland to determine logistically what steps might be necessary to guarantee West Virginia’s permanent autonomy over additional construction and use of water on our side of the Potomac. It has always been our goal to ensure that there is an adequate amount of water available for our citizens, while at the same time protecting and conserving this valuable resource for future generations. Our next steps will seek to achieve this balance,” Attorney General Morrisey added.
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