Virginia v. Maryland, 540 U.S. 56, 4 (2003)

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Cite as: 540 U. S. 56 (2003)

Syllabus

use the River, so long as Virginia is not excluded from the River altogether. Pp. 65-75. 2. Virginia did not lose her sovereign riparian rights by acquiescing in Maryland's regulation of her water withdrawal and waterway construction activities. To succeed in her acquiescence defense, Maryland must show that Virginia "failed to protest" her assertion of sovereign authority over waterway construction and water withdrawal. New Jersey v. New York, 523 U. S. 767, 807. Maryland has not carried her burden. As the Special Master found, Virginia vigorously protested Maryland's asserted authority during the negotiations that led to the passage of § 181 of the Water Resources Development Act of 1976, which required those States to enter into an agreement with the Secretary of the Army apportioning the River's waters during low-flow periods. Section 181 and the ensuing Low Flow Allocation Agreement are conclusive evidence that, far from acquiescing in Maryland's regulation, Virginia explicitly asserted her sovereign riparian rights. Pp. 76-80.

Maryland's exceptions overruled; relief sought by Virginia granted; and

Special Master's proposed decree entered.

Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, in which Kennedy, J., joined, post, p. 80. Kennedy, J., filed a dissenting opinion, in which Stevens, J., joined, post, p. 82.

Stuart A. Raphael argued the cause for plaintiff. With him on the brief were Jerry W. Kilgore, Attorney General of Virginia, William H. Hurd, Solicitor General, Roger L. Chaffe and Frederick S. Fisher, Senior Assistant Attorneys General, and Jill M. Dennis.

Andrew H. Baida, former Solicitor General of Maryland, argued the cause for defendant. With him on the briefs were J. Joseph Curran, Jr., Attorney General, and Maureen Mullen Dove, M. Rosewin Sweeney, Adam D. Snyder, and Randolph S. Sergent, Assistant Attorneys General.*

*Briefs of amici curiae were filed for the Audubon Naturalist Society by Kathleen A. Behan and Christopher D. Man; and for the Loudoun County Sanitation Authority of Virginia by Stanley M. Franklin, E. Duncan Getchell, Jr., Robert L. Hodges, and James E. Brown.

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