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Does a 1910 ruling let Maryland tell West Virginia what to do?

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UPDATED

Does a boundary dispute settled between Maryland and Virginia in 1785 ultimately give Maryland control over West Virginia permits for wastewater discharged into the Potomac River?

Washington, D.C.-based Potomac Riverkeeper thinks West Virginia permits should follow Maryland standards, where those standards are more strict.

"In an attempt to require West Virginia discharge permits to be more protective of water quality, Potomac Riverkeeper is filing an administrative appeal of one such permit," said group spokesperson Robin Broder.

But the West Virginia Department of Environmental Protection said it does run its permits by Maryland and incorporates its comments.

Potomac Riverkeeper filed an appeal Feb. 28 of a wastewater discharge permit issued to the U.S. Fish and Wildlife Service's National Conservation Training Center in Shepherdstown by the West Virginia DEP.

The permit requires the facility to sample its discharge once per month, as required by West Virginia DEP rules, whereas Maryland Department of the Environment rules would require once-per-week sampling.

"Monthly samplings render the permit's maximum daily limitations toothless," reads a March 4 Potomac Riverkeeper media release. "For all but one day per month, DEP and the public will receive no information regarding whether the NCTC facility is in compliance with its maximum daily limitations."

It's true that, unlike most border rivers, which are controlled to their centers by the border states, the Potomac is controlled to its low water mark on the south shore of the North Branch, or the Maryland-West Virginia border, by Maryland.

It was declared so in 1910 in the Supreme Court case Maryland v. West Virginia.

The deep history of that is that colonial grants for both Maryland and Virginia granted them control of the Potomac. Virginia ceded its right to the river but retained riparian, or riverside, rights in a 1785 compact that was further spelled out in 1877.

The 1910 decision simply carried that up the river.

Potomac Riverkeeper said it submitted comments to West Virginia DEP before the January 2013 renewal of the NCTC's wastewater discharge permit, seeking more frequent sampling of the discharge.

When the reissued permit did not address that request, the group decided to appeal.

In order to ensure compliance with the water quality standards of the state of Maryland, the group asks the EQB to remand the permit to DEP to require more frequent sampling according to specific Maryland standards.

The fact is, West Virginia DEP is aware of and respectful of Maryland's jurisdiction over the Potomac River.

DEP spokesperson Kathy Cosco said her agency runs its Potomac River discharge permits by Maryland permitting authorities. Their comments on this permit resulted in restrictions on pH, she said.

With regard to monitoring frequencies, states typically follow their own rules, she said. which are matters of agency policy that are not laid out in water quality standards.

Discussions are ongoing about ways in which following Maryland's standards actually would weaken limits in the permit rather than strengthen them, she said.

Because the Potomac feeds into the heavily regulated Chesapeake Bay, West Virginia DEP also sent the permit to the U.S. Environmental Protection Agency, which had no comments, Cosco added.

She emphasized the fact that the state regulatory agencies collaborate on Potomac River discharge permits and are working together on this one.