A New Potomac River Legal Dispute Appears Between Maryland and West Virginia

Over the past two centuries, many courts – including the United States Supreme Court — have had to decide who owns or controls the rights to the Potomac River in multiple legal river rights disputes between Maryland and its two southern neighbors. In fact, just a few years ago, we wrote about a civil Potomac River legal dispute related to property rights between private parties. Succinctly, the Potomac River has spawn multiple river rights disputes between its neighboring states.

As Supreme Court Chief Justice Rehnquist noted in 2003: “Control of the [Potomac] River has been disputed for nearly 400 years. In the 17th century, both Maryland and Virginia laid claim to the River pursuant to conflicting royal charters issued by different British monarchs.”

Now, the Potomac River legal dispute between Maryland and West Virginia has been resurrected once again. Just a few days ago, the State of West Virginia (through its Attorney General Patrick Morrisey) in a Letter to the State of Maryland (to its Attorney General Brian Frosh and Secretary of the Environment Benjamin Grumbles) has asserted that the State of West Virginia may file a lawsuit against the State of Maryland if Maryland continues to limit West Virginia’s access to the Potomac River, a water source which is directly adjacent to Maryland, Virginia, West Virginia, and Washington, DC.

In its 2016 Water Letter (dated November 2, 2016), West Virginia told Maryland that “It is fundamentally unfair for Maryland to claim regulatory authority to tilt the competitive balance in its favor by limiting West Virginia’s access to basic utilities like water.” The full text of the Letter can be found via West Virginia here: Link to the 2016 Water Letter.

Specifically, the issue of a state’s rights to water from the Potomac River has been argued before the United States Supreme Court in prior matters. Most recently, in a similar dispute between Virginia and Maryland thirteen years ago, the Supreme Court ruled that, “Maryland and Virginia each has a sovereign right to build improvements appurtenant to her own shore and to withdraw water, without interfering with the proper use of the River by the other.” (Virginia v. Maryland). Relying on Virginia and Maryland’s prior more-that-200-years-old Compact related to the Potomac River, in the 2003 matter, the United States Supreme Court specifically decreed that:

Article Seventh of the Compact of 1785 between the Commonwealth of Virginia and the State of Maryland, which governs the rights of the Commonwealth of Virginia, its governmental subdivisions and its citizens to withdraw water from the Potomac River and to construct improvements appurtenant to the Virginia shore, applies to the entire length of the Potomac River, including its nontidal reach.

Additionally, the Supreme Court has previously stated that West Virginia holds similar sovereign rights to the Potomac River as does Virginia, and the Court has specifically held that the boundary between the states of Maryland and West Virginia is the “south bank” of the Potomac River. (Maryland v. West Virginia). Thus, West Virginia’s 2016 Water Letter specifically referenced the Compact of 1785 as the authority for its assertion of its own sovereign rights to the Potomac River’s water.

The 2016 Water Letter to Maryland from West Virginia gives Maryland until November 23, 2016 to agree that Maryland cannot regulate West Virginia’s use of the Potomac River and agree to work with West Virginia in drafting an interstate compact related to the use of the Potomac River.

If Maryland does not agree to the West-Virginia-asserted water-rights limitations by the stated deadline, West Virginia stated that it will file a lawsuit with the United States Supreme Court to seek clarification of its rights to the Potomac River. Within such a Potomac River lawsuit, the Supreme Court would specifically need to degree whether West Virginia has the same (or similar) rights to the Potomac River as Virginia was provided with in the 2003 Virginia v. Maryland matter.

The attorneys at Longman & Van Grack represent many parties on appeals, property disputes, river disputes, and recreation law matters in Maryland, Virginia and Washington DC. Specifically, Adam Van Grack has represented many clients on these issues. Call (301) 291-5027 if you would like a consultation with Adam or one of our other attorneys at our Maryland (Bethesda and Rockville), Virginia, or Washington, DC offices.