In the earliest years of the United States as a nation George Washington called a meeting at Mount Vernon to try to settle a serious issue over water use of the Potomac River between Virginia and Maryland. The 1785 Agreement sufficed for several decades, but in the early 19th Century, dispute grew to the point that an arbitration was called for. That “Black-Jenkins Award.” That Award established Maryland as having jurisdiction of the Potomac where it defines the border between those two states. Virginia’s sovereignty commenced at the low water line on the Virginia side. Over, a hundred years later, some 2003 litigation in the United States Supreme Court make clear that the sovereignty of Virginia includes traditional “riparian” rights of reasonable use of the waters of the Potomac. The 2003 litigation began over the question of whether Virginia owners could withdraw water for Virginia-side use by means of an intake pipe out to the central area of the water course.

In November 2016, the Attorney General of West Virginia threatened the Commonwealth of Maryland with litigation under the Supreme Court’s original jurisdiction. At issue was much the same controversy that Virginia had long had with Maryland. West Virginia, of course, was made a separate state in 1863, with its territory being the westernmost part of Virginia.

Toward the end of November, Brian Frosh, Maryland’s Attorney General, and Benjamin Grumbles, its Environmental Secretary, announced that Maryland would no longer expect permit applications from the West Virginia side

The parties are expected to continue to discuss and exchange constructive communications going forward.

Thus, it may be that reasonable recognition of respective, albeit sometimes competing, interests of the two states and their residents can be worked out without recourse to Supreme Court litigation. It only took 231 years of American history.

(Harvey M. Sheldon)