Amicus Curiae Brief — Virginia v. Maryland

Ae The | Mest oe

Supreme Court of the Uniteruieittes ~

| OBFICE oF Tam

COMMONWEALTH OF VIRGINIA,

Plaintiff,

STATE OF MARYLAND,

Defendant.

BRIEF OF AMICUS CURIAE LOUDOUN COUNTY

SANITATION AUTHORITY

IN SUPPORT OF REPLY BY THE

COMMONWEALTH OF VIRGINIA

TO THE EXCEPTIONS OF THE STATE OF

MARYLAND

TO THE REPORT OF THE SPECIAL MASTER

Stanley M. Franklin

E. Duncan Getchell, Jr., Counsel of Record

Robert L. Hodges

James E. Brown

McGUIREWOODS LLP

One James Center

901 East Cary Street

Richmond, Virginia 23219

(804) 775-1000 (Telephone)

(804) 775-1061 (Facsimile)

Counsel for Amicus in Support

of the Commonwealth of Virginia

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

TABLE OF CONTENTS

ee ee Ce ctiicerertccieienstnsiiinasiniaiiniinniaiiiniainimatiian i

ee Ca Cnr I ticinetesicnininnsiitintiiininciininaniimnianins il

I. INTRODUCTION, STATEMENT OF

INTEREST OF AMICUS, AND SUMMARY

Sr Se PIO wenseseniusentnsiciataneteccinnninnannea l

A. Interest of Amicus Loudoun County

ee FI ccecscsvncenennttiininnintensiincninian 2

B. Summary of the Argument.............cccsceeeees 7

IES sicerrtermiceinneitesionieabionadiiiien 9

A. The Loudoun Authority’s active

plan to construct an intake into

the Potomac River refutes the

claims of ANS of mootness and lack of

ED cnnssritestnemminimmmninnsl 9

B. The Commonwealth of Virginia has

standing to pursue this action parens

TIEE, ccanntunsmmarennimnnnninamamnninninansiin 13

ee ED ccsesesnscsnesentinssnsanisennianateiennimmemeiianii 18

ll

TABLE OF AUTHORITIES

FEDERAL CASES

Alfred L. Snapp & Son, Inc. v. Puerto

poe. Lik oy | 14

Clinton v. City of New York, 524 U.S.

GF Ge verenennessnensetacccesecsensocevemereneeservasseeses 12

Colorado v. New Mexico, 459 U.S.

Si saris abeeeeniceeneeememnndenegennsnennvoumeenvens 17, 18

Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs. (TOC), Inc., 528 U.S.

IF TIT ccscisisteensenansanenenemnnayeipenseevenseonensesens 11

Georgia v. Pennsylvania R. Co., 324 U.S.

IE scinensastcsidncncnnesevepsennevennersecevesessesesouss 13

Kansas v. Colorado, 185 U.S. 125 (1902)............ 15

Maryland v. Louisiana, 451 U.S. 725 (1981) ....... 14

Maryland v. West Virginia, 217 U.S.

BaF CED vencerecesessssesenesessesocsesenecsevevcncocsnenseseses 7

Missouri v. Illinois, 180 U.S. 208 (1901)........ 13, 15

New Jersey v. New York, 345 U.S. 369

ITE aceceannenssdesincennssnvennsvienssvevscsecccscnsvecenes 13, 16

Pennsylvania v. New Jersey, 426 U.S.

eel ccscunsevessesuncensesencenesnesenveneeesocscessnnasece 13

STATUTES AND REGULATIONS

Compact of 1785, 1785-86, Md. Laws ch. 1

1785-86 Va. Acts ch. 17, codified in part

at Va. Code Ann. § 07.1-7........ccccccccccecceeeeeeens

Black-Jenkins Award, 1878 Md. Laws ch.

274, 1878 Va. Acts ch. 246, Act of

March 3, 1879, ch. 196, 20 Stat. 481 .............

Potomac River Compact of 1958, Va.

Code Ann. § 28.2-1001, Md. Code

Ann., Nat. Res. § 4-306 (2002

Supp.), Pub. L. No. 98-893, 76 Stat.

i

Potomac River Protection Act, 2000 Md.

RS ET

Re Ef S| | nee

18 Va. Regs. Reg. 3601-03 (Aug. 26, 2001).......

OTHER MATERIALS

Low Flow Allocation Agreement of 1978 ..........

Water Supply Cooperation Agreement

ae

eeee

HE SAE aa eB lO NEI 1 AE RNR i RIN

Pee RO REE AR CREAR Pie RN Mom ere PN

|

I. INTRODUCTION, STATEMENT OF

INTEREST OF AMICUS, AND SUMMARY OF

THE ARGUMENT’

The Fairfax County Water Authority (“FCWA”)

instituted a plan to construct a drinking water intake structure

in the channel of the Potomac River because the previous

intake near the Virginia shore was subject to increased

turbidity that raised treatment costs and created a greater risk

of disease for consumers of treated water.’ FCWA’s plans

set in motion a series of events that led Maryland to assert

suzerainty over the rights of Virginia, its subdivisions,

instrumentalities, and citizens in the waters of the Potomac

River.

' No counsel for a party authored this brief in whole or in part. No

person or entity other than the amicus curiae have made any monetary

contribution or monetary commitment to the preparation or submission

of the brief. Counsel for Virginia was afforded the courtesy of

previewing and commenting on the drafts of the brief prior to filing.

2 While this action was pending, the State of Maryland granted

permission for the FCWA to construct this intake. However, the new

permit requires a flow-restrictor which limits FCWA’s ability to

withdraw water from the river.

A. Interest of Amicus Loudoun County

Sanitation Authority.

The Loudoun County Sanitation Authority

(“Loudoun Authority”) is vitally interested in seeing that the

Court affirms the findings of the Special Master. The

Loudoun Authority is a public body politic and corporate and

is also an instrumentality and political subdivision of the

Commonwealth of Virginia authorized by the Virginia Water

and Waste Authorities Act, Va. Code Ann. § 15.2-5114. The

Loudoun Authority was created by action of the Board of

Supervisors of Loudoun County pursuant to that legislation

and was chartered by the State Corporation Commission on

May 27, 1959. Because the Loudoun Authority has obtained

the consent of both parties to this suit, it submits that it

should be afforded amicus status as a matter of course under

Rule 37.3(a), Rules of the United States Supreme Court.’

* Letters of Consent from Virginia and Maryland have been lodged with

the Clerk.

The Virginia Water and Waste Authorities Act and

the Lovdoun Authority’s Articles of Incorporation provide

that the Loudoun Authority is authorized to acquire,

construct, improve, operate and maintain a water system for

supplying and distributing water in Loudoun County.

Loudoun County has imposed the responsibility upon the

Loudoun Authority to meet the water needs of the citizens of

Loudoun County. While the Loudoun Authority currently

serves Eastern Loudoun County, its chartered service area

includes all of the unincorporated areas of the County's

approximately 517 square miles. The incorporated towns

within the County operate water supply systems

independently of the Authority.

In 1990, the Loudoun Authority provided water

service to a residential population of 40,500 people. In 2002,

the Loudoun Authority served a population of 120,000, an

increase of over 190%. The Loudoun Authority estimates

that it will be responsible to serve a population of 145,000 in

2005, 188,000 for the year 2010, and 265,000 for the year

2020. In 1990, the Loudoun Authority experienced a

maximum daily water demand of 8.2 million gallons per day

(“mgd”) and expects this demand to grow to an ultimate

water demand of approximately 75 mgd after 2020, an

increase of over 900%.

Loudoun County is at the epicenter of Virginia’s

dispute with Maryland because Maryland’s admitted efforts

to regulate growth in Northern Virginia are principally

directed against Loudoun County.

Although it might be possible for the Loudoun

Authority to receive additional water capacity from the

FCWA in the future, negotiations in this area have been

slow, sporadic and uncertain. As a functional matter, the

FCWA’s new intake will not increase its overall capacity.

The Loudoun Authority’s ability to rely on the FCWA for its

future water supply is uncertain at best. The FCWA’s

current permit to withdraw water from the Potomac River

comes up for renewal in April 2008. A delay (or denial) by

Maryland in granting a renewal similar to the delay in

granting the permit that was the initial subject of this case

would have disastrous consequences for the citizens of

Loudoun County. Furthermore, the flow-restrictor

requirement imposed by Maryland in the existing permit

stands as a stark reminder that Maryland still purports to

retain the last word on any use of the river.

In an effort to meet the demands of its growing

population, the Loudoun Authority purchased 22.7 acres

along the Potomac River in Loudoun County, Virginia in

1993 for the purpose of constructing a water intake and

treatment facility using Potomac River water. The Loudoun

Authority plans to withdraw water from the Potomac River

from its own intake system upon the non-tidal part of the

Potomac River bordering the County. A “Master Plan” for

meeting the current and future needs of the citizens of

Loudoun County, including construction and use of the

proposed intake, has been prepared and is under active

consideration by the Authority’s Board. The Loudoun

Authority has undertaken a “Water Supply Augmentation

Study” as part of its Master Plan. As a result of this planning

process, the Authority has determined that the Potomac

River intake is necessary, and it intends to build the proposed

intake. Maryland’s claims of authority to regulate Virginia’s

use of the river stand as a substantial impediment to the

Authority’s ability to discharge its water supply

responsibilities both in the present and the future.

Maryland’s delay of the FCWA’s intake for five

years and its claims of right to prohibit or limit all intake

permits, makes the orderly planning, design and construction

of a water intake facility highly uncertain. The Loudoun

Authority is at the point on its Master Plan where it would

have begun the permitting process but for the fact that it is

relying on Virginia in this suit to vindicate its right to be free

from Maryland’s permitting requirements. Should Virginia

succeed in this regard, the Loudoun Authority will apply for

the appropriate permits under 18 Va. Regs. Reg. 3601-03

(Aug. 26, 2001), which will become effective upon a

favorable outcome in this case. Thus, putative amicus

Audubon Naturalist Society’s (“ANS”) stated concerns of a

regulatory void are unfounded. (amicus Brief at 22).

B. Summary of the Argument.

By virtue of the Compact of 1785 between Virginia

and Maryland, 1785 Acts c. XVII, codified in part at Va.

Code Ann. § 7.1-7, 1786 Md. Laws c. I; the Black-Jenkins

Award of 1877, Va. Code Ann § 7.1-7, Act of March 3,

1879, ch. 196, 20 Stat. 481, 483; this Court’s decision in

Maryland y. West Virginia, 217 U.S. 577 (1910); the

-Potomac River Compact of 1958, Va. Code Ann § 28.2-

1001, Md. Code Ann., Nat. Res. § 4-306 (2002 Supp.), Pub.

L. No. 98-893, 76 Stat. 797 (1962); the Low Flow Allocation

Agreement of 1978; and the Water Supply Cooperation

Agreement of 1982, it is clear that Virginia, and her

subdivisions, instrumentalities, and citizens, have the right to

build structures in the river that do not obstruct navigation,

and that Virginia has retained its rights of access to the

Potomac River, including a right to withdraw and use water

without the prior consent of Maryland.

Maryland requires that anyone seeking to construct a

facility to withdraw water from the Potomac River obtain

permits including a waterway construction permit and a

water appropriation permit. Maryland conditions the

issuance of such permits on a showing that the appropriation,

in Maryland’s sole view, is “necessary.” On November 30,

1999, in response to the situation precipitated by the

FCWA’s request to build its proposed off-shore intake, the

Attorney General of Virginia wrote to the Attorney General

of Maryland demanding that Maryland either issue the

permit or agree that permit approval is not required for such

intakes. The Attorney General of Maryland replied on

January 4, 2000, asserting Maryland’s putative power to

regulate Virginia’s rights in the Potomac River.

As a consequence, the arguments of putative amicus

ANS that Virginia’s claims are moot or unripe are mistaken.

Furthermore, the Commonwealth of Virginia clearly has

standing to pursue this action parens patriae. The

‘Commonwealth has a sovereign interest in protecting the

ability of her citizens to freely exercise their rights of access

to the Potomac River free of the political whims of

Maryland. Virginia also has quasi-sovereign interests in

protecting the health and welfare of her citizens in general,

which are being threatened by Maryland’s express position

on the use of Potomac River water, and in insuring that her

residents are not being discriminatorily denied their rightful

status within the federal system.

Il. ARGUMENT

A. The Loudoun Authority’s active plan to

construct an intake into the Potomac River

refutes the claims of ANS of mootness and

lack of ripeness.

The Loudoun Authority is an owner of riparian

property with a practical stake in the outcome of this

proceeding. It therefore has a particular insight into the

practical needs of a riparian owner actually intending to

remove water from the Potomac River for the use of citizens

of Northern Virginia above the fall line. As a consequence,

10

the Loudoun Authority has specialized information and a

distinct perspective that may be helpful to this Court.

Contrary to the assertions of putative amicus ANS,

there is at least one Virginia entity, the Loudoun Authority,

which has imminent plans to withdraw additional water from

the Potomac River. The Loudoun Authority’s Master Plan

calls for the construction of an intake into the Potomac River

and a treatment facility that, together, will provide at least

one-half of the County’s daily water needs. This plan is not

merely theoretical or a remote contingency; the plan has

been extensively developed and is at the point where a

permit would have been sought but for the fact that the

Loudoun Authority agrees with the Commonwealth of

Virginia’s position that Maryland does not possess the

authority to issue such permits.‘

* In fact, since July 2001 when your amicus submitted the declaration of

Dale C. Hammes, the General Manager of the Loudoun Authority, for

inclusion in the record (Va. Lodging 327), seven out of nine work tasks

have been completed for the Water Supply Augmentation Study.

1]

With respect to ANS’ claim of mootness, the fact that

a permit has been issued does not satisfy the heavy burden a

litigant has when claiming mootness. As this Court has

recently stated:

It is well settled that ‘a defendant’s

voluntary cessation of a challenged

practice does not deprive a federal

court of its power to determine the

legality of the practice.’ ... ‘[I]f it did,

the courts would be compelled to

leave ‘[t]he defendant ... free to return

to his old ways.’... In accordance

with this principle, the standard we

have announced for determining

whether a case has been mooted by the

defendant’s voluntary conduct is

stringent: ‘A case might become moot

if subsequent events made it

absolutely clear that the allegedly

wrongful behavior could not

reasonably be expected to recur.” ...

The ‘heavy burden of persua[ding]’

the court that the challenged conduct

cannot reasonably be expected to start

up again lies with the party asserting

mootness.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),

Inc., 528 U.S. 167, 189 (2000) (citations omitted). Not only

is the challenged activity here clearly capable of repetition, it

12

has not even ceased. Maryland, through its requirement for a

flow-restrictor for FCWA and through its unretracted claims

of right, continues to create a situation which requires

judicial resolution.

With respect to ripeness, the controversy between

Maryland and Virginia could hardly be more present,

immediate and concrete than it is. See Clinton v. City of New

York, 524 U.S. 417, 430 (1998). .

In light of these circumstances, your amicus

respectfully asks the Court to accept the recommendation of

the Special Master and hold that “Virginia, its governmental

subdivisions, and its citizens may withdraw water from the

Potomac River and construct improvements appurtenant to

the Virginia shore of the Potomac River free of regulation by

Maryland.” Report of the Special Master at 96-97. The

Loudoun Authority, acting on behalf of the citizens of

Loudoun County, Virginia, should be able to construct a

water intake to meet the needs of those citizens free of the

13

political choices of Maryland officials who have no duty to

the citizens of Loudoun County.

B. The Commonwealth of Virginia has

standing to pursue this action parens

patriae.

It is well settled that a state has standing to sue when

its sovereign or quasi-sovereign interests are implicated.

Pennsylvania v. New Jersey, 426 U.S. 660, 665 (1976). The

water rights disputes present here touch on both interests.

Sovereign interests are those in which the state, if it

were an independent nation, could resolve through the use of

diplomacy or force. Georgia v. Pennsylvania R. Co., 324

U.S. 439, 450 (1945); Missouri v. Illinois, 180 U.S. 208, 241

(1901). Surely, the use of an interstate waterway, without

having to defer to the sovereign claims of another state,

constitutes such an interest. The parens patriae doctrine, “is

a recognition of the principle that the state, when a party to a

suit involving a matter of sovereign interest, must be deemed

to represent all its citizens.” New Jersey v. New York, 345

U.S. 369, 372 (1953). Here, the position taken by the

14

Commonwealth of Virginia, that the citizens of Virginia

should be free to exercise their rights in the river without

submitting to the political agenda of Maryland, is a proper

exercise of its sovereign responsibilities and thus falls

squarely within the parens patriae doctrine. See Maryland v.

Louisiana, 451 U.S. 725, 737 (1981) (holding that state “may

act as the representative of its citizens in original actions

where the injury alleged affects the general population of a

State in a substantial way”).

The present case also touches on Virginia’s quasi-

sovereign interests. These interests fall into two general

categories:

First, a State has a quasi-sovereign interest in

the health and well-being — both physical and

economic — of its residents in general.

Second, a State has a quasi-sovereign interest

in not being discriminatorily denied its

rightful status within the federal system.

Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592,

607 (1982). Virginia’s interests are clearly implicated in

both categories. It has been long established that where “the

15

health and comfort of the inhabitants of a State are

threatened, the State is the proper party to represent and

defend them.” Missouri v. Illinois, 180 U.S. at 241; see also

Kansas v. Colorado, 185 U.S. 125, 141-42 (1902) (observing

that a state is the proper party to represent and defend its

citizens when their health and comfort is threatened through

the acts of another state depriving those citizens of water

rights). The need for sufficient water for Loudoun County’s

and Northern Virginia’s projected population strongly

implicates the health and comfort of that population.

Furthermore, it is clear from the record before this

Court that the citizens of Virginia face disparate treatment

from Maryland in terms of access to the Potomac River. The

express purpose of the supporters of the so-called Potomac

River Protection Act was to curb the growth of Northern

Virginia, with a focus on Loudoun County. Given the

politicized treatment and consequent delay in processing the

FCWA’s request to build an offshore intake, there is no

reason to believe the Loudoun Authority would fare any

16

better should it seek a permit. While the FCWA’s permit

was eventually granted after protracted delay and great

expense, it is clear that Maryland officials can make the

process difficult, time-consuming and expensive in order to

serve Maryland’s opposition to growth in Northern Virginia.

Finally, the position taken by putative amicus ANS

that individual water authorities and jurisdictions must

pursue individual actions to protect their own interests (see

amicus Brief at 12), is unsupportable under the facts and

circumstances of this case. In New Jersey v. New York, 345

U.S. 369 (1953), the Court held that the Commonwealth of

Pennsylvania, which was allowed to intervene, was in a

better position to represent the needs of all its citizens than

the City of Philadelphia, which was not allowed to intervene,

because Philadelphia represented “only a part of the citizens

of Pennsylvania who reside in the watershed area of the

Delaware River and its tributaries and depend upon those

waters.” Jd. at 373. Here, Virginia represents the FWCA,

the Loudoun Authority and all of Virginia’s other citizens

17

and subdivisions by virtue of parens patriae. The Loudoun

Authority, in turn, is speaking only because the parties have

consented, and the rules of this Court therefore permit its

views to be aired.

The various sovereign and quasi-sovereign interests

being asserted here are at least as varied and strong as those

advanced by Colorado in Colorado v. New Mexico, 459 U.S.

176 (1982), where this Court noted:

New Mexico also contends that

Colorado is improperly suing directly

and solely for the benefit of a private

individual -- C.F. & I. ...

... While C.F. & 1. will most likely be

the primary user of any water diverted

from the Vermejo River, other

Colorado citizens may jointly use the

water or purchase water rights in the

future. In any event, Colorado surely

has a sovereign interest in the

beneficial effects of a diversion on the

general prosperity of the State. Faced

with a similar set of circumstances in

Kansas v. Colorado, 206 U.S. 46, 99,

27 S.Ct. 655, 668, 51 L.Ed. 956

(1907), we concluded that ‘[t)he

controversy rises ... above a mere

18

question of local private right and

involves the matter of state interest

and must be considered from that

standpoint.’

459 US. at 181 n.9.

The present case is in all respects a concrete dispute

among co-equal sovereigns of the sort that this court

regularly decides.

Ill. CONCLUSION

Because the Report of the Special Master is correct in

all respects, the Loudoun Authority requests that this Court

adopt the Report of the Special Master and enter the Special

Master’s proposed Decree.

19

Respectfully Submitted,

LOUDOUN COUNTY

SANITATION AUTHORITY

Stanley M. Franklin

E. Duncan Getchell, Jr., Counsel of Record

Robert L. Hodges

James E. Brown

McGUIREWOODS LLP

One James Center

901 —. Cary Street

Richmond, Virginia 23219-4030

(804) 775-1000 (telephone)

(804) 775-1061 (facsimile)