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Potomac River Sojourn: Control of the Water - 2002-07-28

The Potomac River is the nation's river. George Washington had his home here and lobbied to have the capital city on its shores. The river flows through four East Coast states and Washington, DC on its way to the Chesapeake Bay, the largest estuary in North America.

In this last of five reports, VOA's Rosanne Skirble takes us to a spot on the Potomac that has been the source of a heated controversy between the states of Maryland and Virginia, and is the subject of a Supreme Court battle between them.

We rest our canoe at an idyllic spot on the Potomac River. On the Maryland side is the C&O Canal with easy boat access to the river. On the Virginia side is a new golf course surrounded by a complex of luxury homes.

The Virginia shoreline development disturbs John Mathwin, a high school journalism teacher from Maryland, so much so that he has lobbied for years to stop it, and got Maryland State Delegate Jean Cryor involved. He and Ms. Cryor sit at a picnic table on the Maryland shore and watch dump trucks spill rocks into the river.

The Fairfax County Water Authority is at work on an extension of their intake pipe that will collect cleaner, cheaper drinking water for 1.2 million Virginia residents.

Mathwin: "And as you can see the purpose is to provide the Fairfax County [Virginia] Water Authority with an alternative intake which will be less susceptible to the inflow of ice, sediment, nutrients and other pollutants during flood events on two Potomac River tributaries, located upstream of the project. So, their way of dealing with this was to move the intake from the side of the river, which was getting all these sediments, to the middle of the river. They did nothing to improve stream quality. Basically, their way of dealing with it was to avoid it, run away from it, [they did] not take responsibility for it. This really boiled my blood and galvanized me for years of fighting with them."
Cryor: "As far as I'm concerned, they strip-mined this river. They make problems and they move on. No other place would we allow this to happen, much less a national treasure like the Potomac River. But, guess what, they are doing this as we sit here today. The Potomac River is once again being beaten up on. The assault never stops on this river."

Maryland and Virginia are in a legal battle over control of the river. The fight began five years ago when activists like John Mathwin convinced Maryland, which owns the river under a 1632 grant from King Charles I of England, to refuse to approve a Virginia permit to build the new intake pipe.

In denying the permit, Maryland argued that Virginia development had polluted the shore and that granting the permit to extend the pipe to the middle of the river would only accelerate development, and therefore pollution, in the region. After years of political squabbles and legal wrangling, Maryland finally issued the permit and work began, but not before the case was filed with the U.S. Supreme Court, which settles disputes between states.

Stuart Raphael is an attorney for the Fairfax County Water Authority who recently argued Virginia's case before a Special Master appointed by the Supreme Court. He says Virginia has become an easy target for Maryland politicians. "I think that what happened is that when people like Delegate Cryor and John Mathwin heard about this project they immediately jumped to the conclusion that the project was needed because Virginia was fouling its own nest or polluting its own side of the river," he says. "What they didn't realize is that the problem is actually a problem with rivers in general, and it's the same or worse problem on the Maryland side. And even when confronted with those facts they continue to make statements about Virginia being anti-environmental, which is entirely misplaced."

"If I had my way every United States Supreme Court justice would come out here, sit on the bank of this river, stare across from Maryland to Virginia and see indeed what we are talking about," says Ms. Cryor. "Because until people came to see what we were talking about they had no idea what was happening to the river. I think that the idea of a pipe in the river sounds so innocuous, I don't use the word. They want to put like a three-car garage in the river. That's a better way to explain what it looks like. It's a building on the side of the river. Now you have this tunnel of dirt coming out in the middle. Do you believe that this is happening here in this beautiful place to our special river that we have kept so carefully?"

Mathwin: "If they win this, they have control of the river which means that that these sort of projects will become routine."
Skirble: "What is it going to take to get Maryland and Virginia to come together for this natural resource?"
Cryor: "I think that what is going to have to happen in Virginia is what happened to me. The citizens, the homeowners, the people who love their own little spot and come to love the river have to come together to know that it's our fight. It is not a Virginia fight. It is not a Maryland fight. It's our fight for the river, and that's what has to happen. And will it happen? I am not sure. But that is my dream, that there are enough people on both sides of this river that we then talk as one."

"We're going to get along better when we sit at the table as equals," says Fairfax County Water Authority attorney Stuart Raphael. "At the moment Maryland has a legal system in place which doesn't treat Virginia as an equal. It treats Virginia as any other private user and Maryland politicians have no Virginian constituents. So you have a situation where Virginia's rights are not adequately protected. If Virginia wins the case, Virginia is an equal with Maryland as it should be. They are equal sovereigns. And they can work better together to address their mutual interests."

Attorney Raphael says what's at stake in the Supreme Court case is Virginia's access to the Potomac River. "The problem we have now is that the Maryland permit process is politically influenced. People like Delegate Cryor have been effective in causing permits to Virginia users to be denied or delayed extensively. So what's at stake is the future of cooperation. We have enough water to supply our needs through the year 2020, even assuming an historic drought of record. After 2020 we are going to need additional water resources and the states are going to have to cooperate to do that."

If Virginia wins the legal fight, it will no longer have to get Maryland permits to use the Potomac. But the state will still have to comply with Federal and Virginia State laws governing the river. Recommendations from the Special Master are expected in the coming months. Stuart Raphael says it is likely that the U.S. Supreme Court will determine the final outcome in its next judicial session.

This is the fifth piece in a five-part series on the Potomac River, the waterway in the eastern United States that flows through four U.S. States and metropolitan Washington DC into the Chesapeake Bay, the largest estuary in North America. In a canoe trip down the river, VOA's Rosanne Skirble explores the natural riches of the Potomac and the struggle to protect the land and water resources of the river in the face of population growth, sprawling development and pollution.