Cite as: 540 U. S. 56 (2003)
Opinion of the Court
Justice Kennedy, while acknowledging that Virginia has a right to use the River, argues that Maryland may regulate Virginia's riparian usage so long as she does not exclude Virginia from the River altogether. Post, p. 82 (dissenting opinion). To reach this conclusion, he reasons that the Black-Jenkins Opinion rested Virginia's prescriptive riparian rights solely on Maryland's assent to the riparian rights granted to private citizens in the 1785 Compact. Post, at 87-89. According to Justice Kennedy, therefore, "Virginia's claims under Black-Jenkins rise as high as the Compact but no higher." Post, at 89.
We have already held that the Award's plain language permits no inference of Maryland's regulatory authority, supra, at 69-70; we also disagree that the arbitrators relied solely on the 1785 Compact as support for Virginia's prescriptive rights. To the contrary, the arbitrators' opinion also relied upon Virginia's riparian usage "from the earliest period of her history" and her express reservation in her 1776 Constitution of the unrestricted right to build improvements from the Virginia shore. Black-Jenkins Opinion (1877), App. to Report, at D-18. Indeed, since the arbitrators disclaimed "authority for the construction of [the 1785] compact . . . because nothing which concern[ed] it" was before them, ibid., it would be anomalous to conclude that Virginia's "sole right" under the Award "stem[s] from," and is "delimited" by, Article Seventh of the Compact. Post, at 90 (Kennedy, J., dissenting).
Accordingly, we conclude that the Black-Jenkins Award gives Virginia sovereign authority, free from regulation by Maryland, to build improvements appurtenant to her shore and to withdraw water from the River, subject to the constraints of federal common law and the Award.
of federal common law that governs the disputes between States concerning their rights to use the water of an interstate stream").
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