Virginia v. Maryland
The Supreme Court ruled that Virginia can withdraw water from the Potomac River and build structures like piers and water-intake pipes off its own shore without needing Maryland's permission, resolving a dispute rooted in a 1785 agreement and an 1877 arbitration award between the two states.
The decision voided conditions Maryland had attached to a permit for a Fairfax County water intake project and settled a centuries-old disagreement over which state controls activity on the river, with two justices dissenting sharply over how much power this leaves Maryland to regulate its own territory.
“Thus, the right to use the River beyond low-water mark is a right of Virginia qua sovereign, and was nowhere made subject to Maryland's regulatory authority.”
The Court's core holding that Virginia's riparian rights are sovereign and unregulated by Maryland.
How it got here: Virginia invoked the Supreme Court's original jurisdiction over interstate disputes; the Court appointed a Special Master, who recommended ruling for Virginia, and Maryland filed exceptions to that report.
The Case in Depth
What happened
Virginia and Maryland have disputed control of the Potomac River since colonial times. A 1785 Compact and an 1877 arbitration (the Black-Jenkins Award) gave Maryland ownership of the riverbed but recognized Virginia riparian rights. When Fairfax County sought a permit in 1996 to build a water intake structure, Maryland's environmental agency initially refused it and later granted it only with a flow-restrictor condition, prompting Virginia to sue.
The question before the Court
Could Maryland require Virginia to get its permission before Virginia withdrew water from the Potomac River or built structures like water intake pipes off its own shore?
The Court's answer
No — the Court ruled that Maryland cannot require Virginia to get a permit before withdrawing water from the Potomac River or building shoreline improvements like piers and water intakes. Interpreting the 1785 Compact and the 1877 Black-Jenkins Award as it would a federal statute, the Court found that these documents gave Virginia sovereign rights to use the river beyond the low-water mark, with no accompanying grant of regulatory power to Maryland.
The Court also rejected Maryland's argument that Virginia had given up these rights by going along with Maryland's permitting system for decades, finding that Virginia had explicitly protested Maryland's claimed authority during 1976 congressional hearings. As a result, the flow-restrictor condition Maryland attached to Fairfax County's water-intake permit was voided.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Northern Virginia communities that rely on the Potomac for drinking water, including Fairfax County, no longer need Maryland's approval to build water intakes or withdraw water, easing a bureaucratic hurdle for regional water infrastructure. Maryland loses a regulatory check it had exercised for decades, and future disputes over projects on the river will be shaped by this ruling rather than Maryland permitting decisions.
What changes now
The Court entered a decree declaring that Virginia and its citizens may withdraw water and build shoreline improvements on the Potomac free of Maryland regulation, voiding the flow-restrictor condition Maryland had attached to Fairfax County's permit. This is a final merits decision resolving the two states' original-jurisdiction dispute, though the Court retained jurisdiction to issue further orders if needed to enforce the decree.
What this does not decide
The Court did not decide the precise limits of Virginia's riparian rights beyond freedom from Maryland regulation, such as whether federal common law or reasonableness constraints might still cabin how far Virginia could build into the river; Justice Kennedy's dissent argued the majority left open how to distinguish legitimate use from overreach.
Concurrences and dissents
Dissent — Justice Stevens
Justice Stevens argued the case should be resolved by ordinary common-law riparian principles: Maryland owns the river to the low-water mark, and riparian landowners' rights to withdraw water are always subject to the regulatory authority of the sovereign owning the water body. He noted the Fairfax County Water Authority's withdrawal for county residents is not even a traditional riparian use under Virginia law, and would have sustained Maryland's exceptions and dismissed Virginia's complaint.
Dissent — Justice Kennedy
Justice Kennedy argued that Maryland had clear historical title to the entire river and that Virginia's rights under the 1785 Compact and Black-Jenkins Award were only citizen-level riparian rights not accompanied by any abrogation of Maryland's police power. He would have held that Maryland may regulate Virginia's river use so long as it does not amount to a total exclusion, and would have sent the case back to determine whether Maryland's permit conditions crossed that line, ultimately siding with Stevens to dismiss Virginia's complaint.
How the Court got there
The legal reasoning, step by step
- The Court read the 1785 Compact the same way it would read a federal statute, since Congress had approved it, and found that Article Seventh gave Virginia's citizens a 'privilege' to build shoreline improvements without any accompanying grant of regulatory authority to Maryland, unlike the fishing rights in the same article which were expressly made subject to mutual regulation.
- The Court rejected Maryland's argument that its sovereignty over the river was 'well-settled' by 1785, noting that the Court's own precedents describe the boundary dispute between the states as continuing well past that date and into the 1870s, undercutting any presumption that Maryland's regulatory authority survived unmentioned.
- Turning to the 1877 Black-Jenkins Award, the Court found that Article Fourth's grant to 'Virginia' (the sovereign, not merely its citizens) of a right to use the river beyond the low-water mark was written in sovereign terms and contained no hint that Maryland could regulate that use, distinguishing it from the citizen-level rights in the 1785 Compact.
- The Court then addressed Maryland's defense that Virginia had acquiesced in Maryland's permitting regulation over time, a doctrine requiring Maryland to show a long, continuous assertion of authority met without protest; the Court found the relevant permitting history spanned at most 43 years, a short period by the Court's precedent.
- Even assuming that short period could suffice, the Court concluded Maryland failed to prove acquiescence because Virginia had explicitly and vigorously protested Maryland's claimed regulatory authority during 1976 congressional hearings over a water-allocation statute, and the resulting law preserved Virginia's riparian rights unaltered.
Doctrinal impact
Cases affected by this decision
Distinguishes Nebraska v. Wyoming (507 U.S. 584)
Distinguished as the only prior case finding a short prescriptive period sufficient, but factually different from Virginia's situation here.
Reaffirms New Jersey v. New York (523 U.S. 767)
Relied on for the standards governing interstate compact interpretation and the prescription-and-acquiescence defense.