Who Owns the Waters of the Potomac?

Proctor & Gamble (P&G) plans to build a $500 million manufacturing plant to produce Pantene shampoos and Old Spice body wash just south of Martinsburg, West Virginia. Under a previous agreement the local water treatment plant is authorized to draw four million gallons a day from the Potomac River. The water treatment plant currently draws 2.4 million and the P&G plant will require an additional 1.3 million gallon a day; however, the P&G factory will result in additional residential and industrial development that will push the county over the four million gallons a day it is currently limited to. In a letter to Maryland officials, West Virginia Attorney General Patrick Morrisey said the water treatment facility that will supply water to the P&G factory “has an urgent need” to increase capacity beyond limits imposed by Maryland and has threatened to file suit much as Virginia did at the turn of the 21st Century.

West Virginia has a strong case. Maryland instituted a permitting program for waterway construction and water withdrawal on the Potomac River in 1933. Over the years, starting in 1957, Maryland issued many of these permits to various Virginia and West Virginia entities without objection. In 1996, the predecessor agency to Fairfax Water applied for permits to build a 725-foot water intake structure to supply the new James J. Corbalis Jr. Water Treatment Plant in Herndon. Maryland denied the permit.

After failing to obtain administrative remedies, Virginia filed a complaint with the U.S. Supreme Court in March 2000 seeking a declaration that Maryland lacked regulatory authority to veto the project. (In 2001, Maryland approved the permit, but with the condition that FCWA install a restrictor to limit withdrawal.) The Court accepted that cast and referred the complaint to a Special Master for fact-finding and recommendation. The Special Master reviewed the evidence submitted by both states and recommended that the Court rule for Virginia. In the Special Master’s opinion, Maryland did not have authority to regulate Virginia’s rights under the 1785 compact and 1877 award.

Maryland opposed this recommendation on two grounds: first, that as sovereign over the river to the Virginia border it had regulatory authority; and second, that even if Virginia’s rights under the compact and award were unrestricted, Maryland had acquired the right to regulate by way of Virginia’s acquiescence to its regulation since 1957.

Nonetheless, in a 7-2 majority the Supreme Court overruled Maryland’s objections to the Special Master’s report, and entered the decree proposed by the Special Master affirming Virginia’s sovereign rights under the 1877 arbitration award to build structures appurtenant to its shore and withdraw water from the Potomac River without regulation by Maryland. Now West Virginia has threatened to challenge Maryland’s authority over its withdrawals.

The effect of the Virginia case on the West Virginia water disputes may be limited to most other states, the decision turned on interpretation of historical documents unique to the previous case – the 1785 compact and 1877 arbitration award. However, when Virginia attempted to secede from the Union in 1861 during the Civil Water, voters in 41 northwestern counties of Virginia (including Preston County) voted to secede from Virginia; and in 1863 the new state of West Virginia was admitted into the union with the United States. The historical claims of Virginia are the same as those of West Virginia.

Though the Potomac River, although practically serving as the border between West Virginia and Maryland is not the actual boundary. The Maryland Assembly passed legislation in April 1787 to formally establish the boundary. Francis Deakins was appointed surveyor, and in 1788 established what became known as the "Deakins line." The Deakins line became the de facto border of Maryland. Unfortunately, the Deakins line was not straight, and it was not a true meridian but rather drifted to the east. A second attempt was made to correct this error, but the dispute continued. Finally, in a 9-to-0 ruling by the United States Supreme Court in 1910 found that the boundary between Maryland and West Virginia is the south bank of the Potomac River and the Deakins line became the de facto border of Maryland.