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Virginia v. Maryland

ELR Citation: 34 ELR 20005
Nos. No. 129, (U.S., 12/09/2003)

The U.S. Supreme Court holds that an interstate compact, a 1785 agreement between Virginia and Maryland, and a subsequent arbitration award—the Black-Jenkins Award of 1877—(the Black-Jenkins Award) concerning water allocation rights have the force of legislation and supersede inconsistent regulatory activity; therefore, Virginia has a right to withdraw water from the Potomac River and to construct improvements appurtenant to the Virginia shore free from regulation by the state of Maryland. Maryland objected to Virginia's plan to construct a new water intake pipe, citing its previously uncontested issuance of Virginia's permit applications for water withdrawal. The Black-Jenkins Award gives Virginia sovereign authority, free from regulation by Maryland, to build improvements appurtenant to her shore and to withdraw water from the Potomac River, subject to the constraints of federal common law and the Black-Jenkins Award. Article 4 of the Black-Jenkins Award and Article 7 of the 1785 Compact are applicable, and the the plain language of the latter grants the "citizens of each state . . . full property" rights in the "shores of Potowmack river" and the "privilege" of building "improvements" from the shore. Virginia did not lose her sovereign riparian rights by acquiescing in Maryland's regulation of her water withdrawal and waterway construction activities. Maryland did not show that Virginia "failed to protest" her assertion of sovereign authority over waterway construction and water withdrawal. Rehnquist, C. J., delivered the opinion of the Court. Stevens, J., filed a dissenting opinion, in which Kennedy, J., joined. Kennedy, J., filed a dissenting opinion, in which Stevens, J., joined.

[Counsel not available at this printing.]