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Map of Potomac River boundary

Map coutesty of Johns Hopkins Applied Physics Laboratory

Maryland and Virginia have contested their Potomac River boundary ever since King Charles I granted The Charter of Maryland in 1632 to Cecil Calvert, Baron of Baltimore. Lord Baltimore named the new colony for the wife of Charles I, Queen Henrietta Maria. As recently as 2004, the Supreme Court of the United States rendered a decision concerning access to the waters of the Potomac River by Virginia.

The Charter of Maryland 1632 established the Maryland-Virginia border from

the first Fountain [source] of the River Pottawmack, thence verging toward the South, unto the further [southern] bank of the said River, and following the same on the West andSouth, unto a certain Place, called Cinquack, situated near the mouth of said River, where it disembogues in the aforesaid Bay of Chesapeake, and thence by shortest Line unto the aforesaid Promontory Place called Watkin’s Point.

The charter clearly establishes the boundary at the low water mark of the Potomac River on the Virginia side. The boundary is not in the center of the river, rather Maryland owns the entire river. However, in negotiations over the years, Maryland granted Virginians limited use of the river. The major source of the boundary disputes is that The Charter of Maryland 1632 granted land to Lord Baltimore that had previously been included in the several charters of Virginia. In 1658, Virginia’s gave up its claims to territory included in the Maryland charter as well as the Potomac River; this relinquishment was confirmed in the Virginia Constitution of 1776.

The Compact of 1785
From the early colonial period to just after the American Revolution, Maryland contested fishing in the Potomac by Virginians. Even George Washington supported a herring fishery in the Potomac adjacent to his Mt. Vernon estate and claimed it was a more reliable source of income than growing tobacco and other crops. He never paid Maryland for use of the Potomac nor sought its permission.

George Washington brought commissioners from Maryland and Virginia together at Mt. Vernon to negotiate the Compact of 1785. The Commonwealth of Virginia disclaimed all rights to impose any toll or duty, or to prohibit or restrain any vessel whatever sailing by the capes of Chesapeake Bay to the state of Maryland. It was agreed that the waters of the Bay and Pocomoke River would be considered a common highway, free for use by both states. In exchange, Maryland agreed that neither state would interfere with the other’s trade or fishing in the Potomac. Maryland had the law on its side, since the original land grant placed the Potomac entirely within its boundaries. Virginia had geography on its side since it controlled the entrance to the Chesapeake Bay at Cape Charles and Cape Henry. It wasn’t until 1829 that an alternate route, the Chesapeake and Delaware Canal, was opened, connecting the upper Chesapeake Bay through the Delaware River to the Atlantic Ocean.

The Arbitration of 1877
The Compact of 1785 was not the last word on the Maryland-Virginia boundary. A continuous series of disputes led to several boundary adjustments into the mid-twentieth century. In 1858, Maryland and Virginia appointed commissioners who, with the help of Lt. N. Micheler, U.S. Corps of Engineers, began a new survey of the boundary. In 1877, both states accepted the recommendations of a board of arbitrators.  The original charter to Lord Baltimore had included the Potomac River to the high water mark on the southern (Virginia) shore. The arbitrators of 1877 changed this to the low water mark. Their justification was the long occupation by Virginia of the land above the low water line. Both states accepted the award and it was approved by act of Congress on March 3, 1879.

Maryland-Virginia Compact of 1958
In 1957, the Maryland legislature abrogated the Compact of 1785. Once again, commissioners from Maryland and Virginia met at Mt. Vernon. The result was the Maryland-Virginia Compact of 1958. This new compact recognized the boundary that had existed, in fact, since 1877. Under the terms of this compact, a joint commission regulates the Potomac River fishery, and patrol boats from both states enforce the laws.

A bizarre twist to the story of the Maryland-Virginia boundary concerns slot machines and gambling. Until 1958, slot machines were legal in several Maryland counties bordering Virginia. Although illegal in Virginia, gambling was allowed in casinos built on the ends of piers stretching from the Virginia shore out into the Potomac beyond the low water mark. By walking to the end of the pier, Virginians could legally gamble in the state of Maryland. Finally, in 1958 Maryland outlawed slot machines. It is ironic that at the start of the twenty-first century Marylanders were once again embroiled in the issue of legalizing slot machines. 

Supreme Court Decision, 2003
As both states entered the twenty-first century, the Potomac River boundary remained an issue. Rapid population growth in Virginia along the Potomac River, especially in Fairfax County, has led to increased needs for fresh water. Since Maryland controls the bottom of the Potomac River, Fairfax County had to seek permission to extend a water intake pipe for its Corballis water treatment plant to the middle of the river. The older intake pipe, close to the shoreline of Fairfax County, was sucking in lots of sediment generated from the construction of extensive new housing developments in Loudon County. The water in the middle of the river is cleaner. Maryland’s Governor Parris Glendening refused to grant permission, suggesting that Virginia mitigate the effects of sedimentation and pollution by better controlling growth. The Maryland position was continued by Governor Robert Ehrlich elected in 2002. When negotiations between the two states failed, Virginia took the case to the United States Supreme Court.

On December 9, 2003, the Supreme Court by a vote of 7 to 2 decided that although the 1877 arbitration affirmed Maryland’s sovereignty over the entire riverbed, it also preserved Virginia’s rights to extend water intake pipes into the middle of the stream. Chief Justice Rehnquist wrote for the court majority:

We conclude that the 1877 decision 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 law.

Over the centuries, Maryland has had to defend its boundaries on all sides. The Maryland-Virginia boundary across the Chesapeake Bay and the Delmarva Peninsula was hotly contested to the point where both states built Chesapeake “navies.” The boundary with West Virginia was not settled until May 31, 1910, when it was defined by the U.S. Supreme Court as the low water mark on the south bank of the North Branch of the Potomac River. The long struggle with Pennsylvania led to the establishment of the Mason-Dixon Line in 1767.

—--James E. DiLisio

Towson University