I agree with your judgment that the term "mean" is irrelevant at MDVAWV. Unless
some legal basis emerges for the word "mean," the notion likely comes from the
Virginia statute on riparian land ownership that I quoted below. The statute is
catch-all for all waters--those subject to tidal fluctuation and those not. Had
Virginia been an inland state with no tides, the word "mean" could have been
omitted with no loss of precision. Tides cycle twice daily, but a rushing
inland river such as the upper Potomac has all manner of crazy swings in its
level without much cyclical regularity or predictability.
With no specific legal guidance as to how to find the low-water mark, we must
resort to our own reason. The functional rationale for the placement of the
boundary at the low-water mark is to allow riparian owners access to the river
(for commerce, water supply, etc.) at all possible river levels. Suppose the
river fell lower than ever heretofore known. Then, that's the low-water mark,
at least at the moment. To have it otherwise would allow Maryland to say, "You
Virginians can't trespass that far into our river bed!" This would defeat the
purpose of guaranteeing to Virginians sovereign access to the water.
However, although the Black-Jenkins Award of 1877 gave Maryland sovereignty over
the river to Virginia's low-water mark, the fourth article further gives
Virginia "a right to such use of the river beyond the line of low-water mark as
may be necessary to the full enjoyment of her riparian ownership" so long as it
doesn't impede navigation or use by Maryland. Just last December 9th, the
Supremes cited this sentence in finding Maryland powerless to prevent, regulate,
or even require a permit for the Fairfax County Water Authority to operate an
intake at mid-stream so as to obtain the cleanest water.
Lowell G. McManus
Leesville, Louisiana, USA
----- Original Message -----
From: "aletheiak" <aletheiak@...>
To: <BoundaryPoint@yahoogroups.com>
Sent: Wednesday, September 29, 2004 4:04 PM
Subject: [BoundaryPoint] Re: dcmdvan & mdvawv retries continued
yes & i think all these data only further substantiate an
exclusively maritime application for the term
mean low water mark
& thus its utter confusion & irrelevancy here at mdvawv
& its irrelevancy at dcmdvan too btw
for that matter
as just any plain low water mark should be equally good there
too
the funny thing is that there doesnt seem to be any clear idea
anywhere of the low water mark of a stream
let alone its mean low water mark
an apparent finesse of precision without new meaning or insight
but it makes me realize that whatever is meant by the term
it is perhaps almost as much a reference to a living changeable
line as is
say
the term thalweg is
so we are never going to pin it down once & forever in any case
& in fact we might only be able to observe the low water mark as
the actual & variable edge of the river whenever the water level
remains below some threshold that somehow signifies to
someone that a sufficient lack of water has been reached for its
edge to be taken seriously as the actual living state line marker
& at all higher stages
well
one would just have to remember or imagine where the water
edge was horizontally when it was last low enough to qualify
so in that way
under the right & not too terribly rare conditions
the true & variable mdvawv tripoint position might become
experientially determinate
& so might be experimentally determined
for that moment in time
by the trypointers themselves
but again
this assumes vawv can even be coaxed down to the true low
water mark
for i dont think these right conditions could ever be right enough
to cause mdvawv to truly reach the veggie line
plat & legal description to the contrary notwithstanding
as the lowness of low water would still have to be taken at least
somewhat in earnest
& the question for us may just be
how low is low enough
&or how earnest is earnest enough