NEW JERSEY v. DELAWARE on exceptions to report of special master

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NEW JERSEY v. DELAWARE
on exceptions to report of special master
No. 134, Orig. Argued November 27, 2007—Decided March 31, 2008
This is the third original action between New Jersey and Delaware involv
ing the boundary along the Delaware River (or River) separating the
two States. The first action was settled by a compact the two States
approved in 1905, and Congress ratified in 1907 (1905 Compact or Com
pact). See New Jersey v. Delaware, 205 U. S. 550 (New Jersey v. Dela
ware I). The 1905 Compact addressed fishing rights but did not define
the interstate boundary line. Two provisions of the Compact sowed
the seeds for further litigation. Article VII provided: “Each State may,
on its own side of the river, continue to exercise riparian jurisdiction of
every kind and nature.” But Article VIII added: “Nothing herein . . .
shall affect the territorial limits, rights, or jurisdiction of either State
of, in, or over the Delaware River, or the ownership of the subaqueous
soil thereof, except as herein expressly set forth.” The second action,
resolved by this Court in 1934, conclusively determined the location of
the interstate boundary: Delaware owned “the river and the subaqueous
soil” within a twelve-mile circle centered on New Castle, Del., “up to
[the] low water mark on the easterly or New Jersey side”; south of the
twelve-mile circle, the middle of the River’s main ship channel marked
the boundary. New Jersey v. Delaware, 291 U. S. 361, 385 (New Jersey
v. Delaware II).
The current controversy was sparked by the Delaware Department
of Natural Resources and Environmental Control’s (DNREC) refusal to
grant British Petroleum permission to construct a liquefied natural gas
(LNG) unloading terminal projected to extend beyond New Jersey’s
shore some 2,000 feet into Delaware territory. DNREC determined
that, under Delaware’s Costal Zone Act (DCZA), the proposed terminal
would be an “offshore bulk product transfer facilit[y]” as well as a
“heavy industry use,” both prohibited by the DCZA. New Jersey com
menced this action, seeking a declaration that Article VII of the 1905
Compact gave it exclusive regulatory authority over all projects appur
tenant to its shores, including wharves extending past the low-water
mark on New Jersey’s side into Delaware territory. Delaware’s answer
asserted that, under, inter alia, Article VIII of the Compact and New
Jersey v. Delaware II, it had regulatory authority, undiminished by Arti
cle VII, over structures located within its borders. On cross-motions
for summary judgment, the Special Master filed a report recommending
a determination by this Court that the “riparian jurisdiction” preserved

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to New Jersey by Article VII is not exclusive and that Delaware has
overlapping jurisdiction, within the twelve-mile circle, to regulate im
provements outshore of the low-water mark on the New Jersey side of
the River. New Jersey filed exceptions.
Held: Article VII of the 1905 Compact did not secure to New Jersey ex
clusive jurisdiction over all riparian improvements commencing on its
shores; New Jersey and Delaware have overlapping authority to regu
late riparian structures and operations of extraordinary character
extending outshore of New Jersey’s domain into territory over which
Delaware is sovereign. Pp. 609–623.
(a) The Court rejects New Jersey’s argument that Article VII, which
accords each State “riparian jurisdiction of every kind and nature,” bars
Delaware from any encroachment upon New Jersey’s authority over im
provements extending from New Jersey’s shore. Pp. 609–615.
(1) The novel term “riparian jurisdiction,” as used in Article VII,
is properly read as a limiting modifier and does not mean “exclusive
jurisdiction.” “[R]iparian jurisdiction” has never been a legal term of
art, and appears to be a verbal formulation the 1905 Compact negotia
tors devised specifically for Article VII. Elsewhere in the 1905 Com
pact—most notably, in Article VIII—the more familiar term “jurisdic
tion” or “exclusive jurisdiction” appears. Attributing to “riparian
jurisdiction” the same meaning as “jurisdiction” unmodified, or equating
the novel term with the formulation “exclusive jurisdiction,” would deny
operative effect to each word in the Compact. See United States v.
Menasche, 348 U. S. 528, 538–539. Presumably drafted in recognition
of the still-unresolved boundary dispute, Article VIII requires an ex
press statement in the Compact in order to “affect the territorial . . .
jurisdiction of either State . . . over the Delaware River.” The Court
resists reading the uncommon term “riparian jurisdiction,” even when
aggrandized by the phrase “of every kind and nature,” as effectuating
a transfer to New Jersey of Delaware’s entire “territorial . . .
jurisdiction . . . over [the portion of] the Delaware River [in ques
tion].” Pp. 610–612.
(2) A riparian landowner ordinarily enjoys the right to build a
wharf to access navigable waters far enough to permit the loading and
unloading of ships. But that right, New Jersey agrees, is subject to
state regulation for the protection of the public. New Jersey sees itself,
however, as the only State empowered to regulate, for the benefit of the
public, New Jersey landowners’ exercise of riparian rights. Commonly,
the State that grants riparian rights also has regulatory authority over
their exercise. But the 1905 Compact’s negotiators faced an unusual
situation: As long as the boundary issue remained unsettled, they could
not know which State was sovereign within the twelve-mile circle be

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yond New Jersey’s shore. They likely knew, however, that “[t]he rights
of a riparian owner [seeking to wharf out into] a navigable stream . . .
are governed by the law of the state in which the stream is situated.”
Weems Steamboat Co. of Baltimore v. People’s Steamboat Co., 214 U. S.
345, 355. With the sovereignty issue reserved by the 1905 Compact for
another day, it is difficult to gainsay the Special Master’s conclusion that
Article VII’s reference to “riparian jurisdiction” did not mean “exclusive
jurisdiction.” Endeavoring to harmonize Article VII with the bound
ary determination, the Special Master concluded that Article VII’s pres
ervation to each State of “riparian jurisdiction” gave New Jersey control
of the riparian rights ordinarily and usually enjoyed by landowners on
New Jersey’s shore. But once the boundary line at low water is passed,
the Special Master further concluded, New Jersey’s regulatory authority
is qualified. Just as New Jersey cannot grant land belonging to Dela
ware, New Jersey cannot authorize activities that go beyond the exer
cise of ordinary and usual riparian rights in the face of contrary regula
tion by Delaware. Pp. 612–615.
(b) An 1834 compact between New Jersey and New York establishing
the two States’ common Hudson River boundary casts informative light
on the 1905 New Jersey-Delaware Compact. Similar to the boundary
settled in New Jersey v. Delaware II, the 1834 accord located the New
Jersey-New York boundary at “the low water-mark on the . . . New
Jersey side [of the Hudson River,]” 4 Stat. 710. Unlike the 1905 Com
pact, however, the 1834 agreement expressly gave New Jersey “the
exclusive right of property in and to . . . land under water” and
“the exclusive jurisdiction of and over the wharves, docks, and
improvements . . . on the shore of the said state . . . ,” ibid. (emphasis
added). Comparable language is noticeably absent in Article VII of the
1905 Compact, while other provisions of the Compact appear to have
been adopted almost verbatim from the 1834 New Jersey-New York
accord. New Jersey, therefore, could hardly claim ignorance that Arti
cle VII could have been but was not drafted to grant it “exclusive
jurisdiction” (not merely “riparian jurisdiction”) over wharves and
other improvements extending from its shore into navigable waters.
Pp. 615–617.
(c) Virginia v. Maryland, 540 U. S. 56, 75—in which this Court held
that a Maryland-Virginia boundary settlement gave Virginia “sovereign
authority, free from regulation by Maryland, to build improvements
appurtenant to [Virginia’s] shore and to withdraw water from the
[Potomac] River”—provides scant support for New Jersey’s claim. As
the Special Master explained, the result in Virginia v. Maryland turned
on the unique language of the 1785 compact and 1877 arbitration award
there involved. The 1785 compact addressed only “the right [of the

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citizens of each State] to build wharves and improvements regardless of
which State ultimately was determined to be sovereign over the River,”
id., at 69. Concerning the States themselves, the 1877 arbitration
award that settled the boundary was definitive. See id., at 75. By
recognizing in that award Virginia’s right, “qua sovereign,” “to use the
River beyond low-water mark,” id., at 72, the arbitrators manifested
their intention to safeguard Virginia’s authority to construct riparian
improvements outshore of the low-water mark free from regulation by
Maryland. By contrast, neither the 1905 Compact nor New Jersey v.
Delaware II purported to give New Jersey all regulatory oversight (as
opposed to only “riparian jurisdiction”). Pp. 617–618.
(d) Delaware’s claim to regulatory authority is further supported by
New Jersey’s acceptance (until the present controversy) of Delaware’s
jurisdiction over water and land within its domain to preserve the qual
ity and prevent deterioration of its coastal areas. When New Jersey
sought federal approval for its coastal management program, it made
the representation—fundamentally inconsistent with its position here—
that any New Jersey project extending beyond mean low water within
the twelve-mile circle would require coastal permits from both States.
DNREC, with no objection from New Jersey, had previously rejected
as a prohibited bulk transfer facility an earlier request to build an LNG
terminal extending from New Jersey into Delaware. DNREC issued
permits for each of the three structures extending from New Jersey
into Delaware built between 1969 and 2006, one of them undertaken by
New Jersey itself. Even during the pendency of this action, New Jer
sey applied to Delaware for renewal of the permit covering the portion
of New Jersey’s project that extended into Delaware. Pp. 618–621.
(e) Nowhere does Article VII “expressly set forth,” in Article VIII’s
words, Delaware’s lack of any governing authority over territory within
the State’s own borders. The Special Master correctly determined that
Delaware’s pre-1971 “hands off ” policy regarding coastal development
did not signal that the State never could or never would assert any
regulatory authority over structures using its subaqueous land. In the
decades since Delaware, pursuant to the DCZA, began to manage its
waters and submerged lands, the State has followed a consistent course:
Largely with New Jersey’s cooperation, Delaware has checked proposed
structures and activity extending beyond New Jersey’s shore into Dela
ware’s domain in order to protect the natural environment of its coastal
areas. P. 622.
(f) Given the authority over riparian rights preserved for New Jersey
by the 1905 Compact, Delaware may not impede ordinary and usual
exercises of the right of riparian owners to wharf out from New Jersey’s
shore. The project British Petroleum sought to construct and operate,

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however, goes well beyond the ordinary or usual. Delaware’s classifi
cation of the proposed LNG unloading terminal as a “heavy industry
use” and a “bulk product transfer facilit[y]” under the DCZA has not
been, and hardly could be, challenged as inaccurate. Consistent with
the scope of Delaware’s retained police power to regulate certain ripar
ian uses, it was within that State’s authority to prohibit construction of
the LNG facility. Pp. 622–623.
Delaware’s authority to deny British Petroleum permission to construct
the proposed LNG terminal confirmed; New Jersey’s exceptions over
ruled; and the Special Master’s proposed decree entered with modifica
tions consistent with the Court’s opinion.
Ginsburg, J., delivered the opinion of the Court, in which Roberts,
C. J., and Kennedy, Souter, and Thomas, JJ., joined, and in which Ste
vens, J., joined as to paragraphs 1(c), 2, 3, and 4 of the Decree. Stevens,
J., filed an opinion concurring in part and dissenting in part, post, p. 624.
Scalia, J., filed a dissenting opinion, in which Alito, J., joined, post, p. 628.
Breyer, J., took no part in the consideration or decision of the case.
H. Bartow Farr III argued the cause for plaintiff. With
him on the brief were Anne Milgram, Attorney General of
New Jersey, Rachel J. Horowitz and Barbara L. Conklin,
Deputy Attorneys General, Gerard Burke, Assistant Attor
ney General, and John R. Renella, William E. Andersen,
Amy C. Donlon, Dean Jablonski, and Eileen P. Kelly, Dep
uty Attorneys General.
David C. Frederick argued the cause for defendant. With
him on the brief were Joseph R. Biden III, Attorney General
of Delaware, Kevin P. Maloney, Scott H. Angstreich, Scott
K. Attaway, Priya R. Aiyar, Collins J. Seitz, Jr., Matthew
F. Boyer, and Max B. Walton.*
Justice Ginsburg delivered the opinion of the Court.
The States of Delaware and New Jersey seek this Court’s
resolution of a dispute concerning their respective regula
tory authority over a portion of the Delaware River within
a circle of twelve miles centered on the town of New Castle,
*Stuart A. Raphael and Sona Rewari filed a brief for BP America Inc.
et al. as amici curiae.

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Delaware. In an earlier contest between the two States,
this Court upheld the title of Delaware to “the river and the
subaqueous soil” within the circle “up to [the] low water
mark on the easterly or New Jersey side.” New Jersey v.
Delaware, 291 U. S. 361, 385 (1934) (New Jersey v. Delaware
II).1 Prior to that 1934 boundary determination, in 1905,
the two States had entered into an accord (1905 Compact or
Compact), which Congress ratified in 1907. The Compact
accommodated both States’ concerns on matters over which
the States had crossed swords: service of civil and criminal
process on vessels and rights of fishery within the twelve
mile zone. Although the parties were unable to reach agree
ment on the interstate boundary at that time, the 1905 Com
pact contained two jurisdictional provisions important to the
current dispute:
“Art. VII. Each State may, on its own side of the
river, continue to exercise riparian jurisdiction of every
kind and nature, and to make grants, leases, and convey
ances of riparian lands and rights under the laws of the
respective States.
“Art. VIII. Nothing herein contained shall affect the
territorial limits, rights, or jurisdiction of either State
of, in, or over the Delaware River, or the ownership of
the subaqueous soil thereof, except as herein expressly
set forth.” Act of Jan. 24, 1907, 34 Stat. 860.
The controversy we here resolve was sparked by Dela
ware’s refusal to grant permission for construction of a lique
fied natural gas (LNG) unloading terminal that would extend
some 2,000 feet from New Jersey’s shore into territory New
Jersey v. Delaware II adjudged to belong to Delaware. The
LNG plant, storage tanks, and other structures would be
1 A map showing the interstate boundary line is annexed to the Court’s
Decree. New Jersey v. Delaware II, 295 U. S. 694, 700 (1935). Six of
New Jersey’s municipalities have one boundary all or partially at the low
water mark of the Delaware River within the twelve-mile circle.

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maintained onshore in New Jersey. Relying on Article VII
of the 1905 Compact, New Jersey urged that it had exclusive
jurisdiction over all projects appurtenant to its shores, in
cluding wharves extending past the low-water mark on New
Jersey’s side into Delaware territory. Delaware asserted
regulatory authority, undiminished by Article VII, over
structures located within its borders; in support, Delaware
invoked, inter alia, Article VIII of the 1905 Compact and
our decision in New Jersey v. Delaware II. The Special
Master we appointed to superintend the proceedings filed
a report recommending a determination that Delaware has
authority to regulate the proposed construction, concur
rently with New Jersey, to the extent that the project
reached beyond New Jersey’s border and extended into Dela
ware’s domain.
We accept the Special Master’s recommendation in princi
pal part. Article VII of the 1905 Compact, we hold, did not
secure to New Jersey exclusive jurisdiction over all riparian
improvements commencing on its shores.2 The parties’ own
conduct, since the time Delaware has endeavored to regulate
coastal development, supports the conclusion to which other
relevant factors point: New Jersey and Delaware have over
lapping authority to regulate riparian structures and op
erations of extraordinary character extending outshore of
New Jersey’s domain into territory over which Delaware is
sovereign.
I
Disputes between New Jersey and Delaware concerning
the boundary along the Delaware River (or River) separating
the two States have persisted “almost from the beginning of
statehood.” New Jersey v. Delaware II, 291 U. S., at 376.
The history of the States’ competing claims of sovereignty,
2 All Members of the Court agree that New Jersey lacks exclusive juris
diction over riparian structures. Post, at 633 (Scalia, J., dissenting);
post, at 626 (Stevens, J., concurring in part and dissenting in part).

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rehearsed at length in New Jersey v. Delaware II, need not
be detailed here. In brief, tracing title through a series of
deeds originating with a 1682 grant from the Duke of York
to William Penn, Delaware asserted dominion, within the
twelve-mile circle, over the River and its subaqueous lands
up to the low-water mark on the New Jersey side. Id.,
at 364, 374.3 New Jersey claimed sovereign ownership up
to the middle of the navigable channel. Id., at 363–364.
The instant proceeding is the third original action New
Jersey has commenced against Delaware involving the Dela
ware River boundary between the two States. The first ac
tion, New Jersey v. Delaware, No. 1, Orig. (filed 1877) (New
Jersey v. Delaware I), was propelled by the States’ disagree
ments over fishing rights. See Report of Special Master 3
(Report).4 That case “slumbered for many years.” New
Jersey v. Delaware II, 291 U. S., at 377. Eventually, the par
ties negotiated a Compact, which both States approved in
1905, and Congress ratified in 1907. See Act of Jan. 24, 1907,
ch. 394, 34 Stat. 858. Modest in comparison to the parties’
initial aim, the Compact left location of the interstate bound
ary an unsettled question.5 New Jersey then withdrew its
3 The “low-water mark” of a river is “the point to which the water re
cedes at its lowest stage.” Black’s Law Dictionary 1623 (8th ed. 2004).
4 The Report of the Special Master, and all public filings in this case, are
available at http://www.pierceatwood.com/custompagedisplay.asp?Show=2.
5 After the States approved the Compact, but prior to Congress’ ratifi
cation, the parties submitted a joint application for suspension of Court
proceedings pending action by the National Legislature. New Jersey v.
Delaware I, O. T. 1905, No. 1, Orig., Statement of reasons submitted orally
for the joint application of Counsel on both sides for suspension of proceed
ings until the further order of the Court (reproduced in 1 App. of Delaware
on Cross-Motions for Summary Judgment 190 (hereinafter Del. App.)).
In that submission, Delaware’s counsel represented that “[t]he compact . . .
was . . . not a settlement of the disputed boundary, but a truce or modus
vivendi.” Ibid. Counsel further stated that the “main purpose” of the
Compact was to authorize joint regulation of “the business of fishing in
the Delaware River and Bay.” Ibid.

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complaint and this Court dismissed the case without preju
dice. New Jersey v. Delaware I, 205 U. S. 550 (1907).
The second original action, New Jersey v. Delaware II, was
fueled by a dispute over ownership of an oyster bed in the
River below the twelve-mile circle. See Report 14. In re
sponse to New Jersey’s complaint, the Court conclusively
settled the boundary between the States. Confirming the
Special Master’s report, the Court held that, within the
twelve-mile circle, Delaware owns the River and the sub
aqueous soil up to the low-water mark on the New Jersey
side. 291 U. S., at 385.6 But New Jersey gained the dis
puted oyster bed: South of the circle, the Court adjudged
the boundary “to be the middle of the main ship channel in
Delaware River and Bay.” Ibid. See also New Jersey v.
Delaware II, 295 U. S. 694, 699 (1935) (Decree) (perpetually
enjoining the States from further disputing the boundary).
In upholding Delaware’s title to the area within the
twelve-mile circle, the Court rejected an argument pressed
by New Jersey based on the 1905 Compact: By agreeing to
the Compact, New Jersey urged, Delaware had abandoned
any claim of ownership beyond the middle of the River. The
Court found New Jersey’s argument “wholly without force.”
291 U. S., at 377. “The compact of 1905,” the Court de
clared, “provides for the enjoyment of riparian rights, for
concurrent jurisdiction in respect of civil and criminal proc
ess, and for concurrent rights of fishery. Beyond that it does
not go.” Id., at 377–378. The Court next recited in full the
text of Article VIII of the Compact: “Nothing herein con
tained shall affect the territorial limits, rights, or jurisdiction
of either State of, in, or over the Delaware River, or the
ownership of the subaqueous soil thereof, except as herein
6 The dissent suggests, post, at 630, that the long dormant first original
action “appeared to be going badly” for Delaware. The strength of Dela
ware’s claim to sovereign ownership of the riverbed within the twelve
mile circle, however, is comprehensively described in New Jersey v. Dela
ware II, 291 U. S., at 364–378.

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expressly set forth.” Id., at 378 (internal quotation marks
omitted).
II
The current controversy arose out of the planned construc
tion of facilities to import, store, and vaporize foreign-source
LNG; the proposed project would be operated by Crown
Landing, LLC, a wholly owned subsidiary of British Petro
leum (BP). See Report 19; 6 App. of Delaware on Cross-
Motions for Summary Judgment 3793, 3804–3807 (herein
after Del. App.) (Request for Coastal Zone Status Decision).
The “Crown Landing” project would include a gasification
plant, storage tanks, and other structures onshore in New
Jersey, and a pier and related structures extending some
2,000 feet from New Jersey’s shore into Delaware. Report
19–20; 6 Del. App. 3804. Supertankers with capacities of up
to 200,000 cubic meters (more than 40 percent larger than
any ship then carrying natural gas) would berth at the pier.
Id., at 3810.7 A multipart transfer system—including, inter
alia, cryogenic piping, a containment trough, and utility
lines—would be installed on the 6,000-square-foot unloading
platform and along the pier to transport the LNG (at suffi
ciently cold temperatures to keep it in a liquid state) from
ships to three 158,000-cubic-meter storage tanks onshore;
vapor byproducts resulting from the onshore gasification
would be returned to the tankers. Report 19–20; 6 Del.
App. 3804; 7 id., at 4307 (Cherry Affidavit). Even “[d]uring
the holding mode of terminal operation (when no ship is un
loading),” LNG would circulate through the piping along the
pier to “keep the line cold.” 6 id., at 3804. Construction of
7 Two or three LNG supertankers, it was anticipated, would arrive at
the unloading terminal each week. 7 Del. App. 4303, 4307 (Affidavit of
Philip Cherry, Delaware Dept. of Natural Resources and Environmental
Control, Director of Policy and Planning) (hereinafter Cherry Affidavit).
In transit, the ships would pass densely populated areas, id., at 4307–4308;
a moving safety zone would restrict other vessels 3,000 feet ahead and
behind, and 1,500 feet on all sides of a supertanker, id., at 4308.

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the Crown Landing project would require dredging 1.24 mil
lion cubic yards of subaqueous soil, affecting approximately
29 acres of the riverbed within Delaware’s territory. Re
port 19–20.8
In September 2004, BP sought permission from Delaware’s
Department of Natural Resources and Environmental Con
trol (DNREC) to construct the Crown Landing unloading
terminal. See id., at 20.9 DNREC refused permission
some months later on the ground that the terminal was
barred by Delaware’s Coastal Zone Act (DCZA), Del. Code
Ann., Tit. 7, § 7001 et seq. (2001),10 as a prohibited “offshore
. . . bulk product transfer facilit[y]” as well as a prohibited
“[h]eavy industry us[e],” § 7003; Report 20.11
Reactions to DNREC’s decision boiled over on both sides.
New Jersey threatened to withdraw state pension funds
from Delaware banks, and Delaware considered authorizing
the National Guard to protect its border from encroachment.
8 The dissent points to other projects involving extensive dredging.
Post, at 642. The examples presented, however, involved large-scale pub
lic works, not privately owned and operated facilities.
9 Three months after seeking Delaware’s permission, BP commenced the
permitting process in New Jersey, by filing a Waterfront Development
Application with New Jersey’s Department of Environmental Protection.
Report 20.
10 The DCZA is designed “to control the location, extent and type of
industrial development in Delaware’s coastal areas . . . and [to] safeguard
th[e] use [of those areas] primarily for recreation and tourism.” Del. Code
Ann., Tit. 7, § 7001 (2001).
11 On BP’s appeal, Delaware’s Coastal Zone Industrial Control Board
affirmed DNREC’s determination that the Crown Landing project was a
bulk product transfer facility prohibited by the DCZA. BP did not appeal
the decision, rendering it a final determination. Report 20–21. The dis
sent suspects that Delaware’s permit denial may have been designed to
lure BP away from New Jersey, siting the plant, instead, on Delaware’s
“own shore.” Post, at 645. Delaware law, however, proscribes “[h]eavy
industry us[e],” Del. Code Ann., Tit. 7, § 7003, in any area within “[t]he
coastal zone” over which Delaware is sovereign, § 7002(a). Nothing what
ever in the record before us warrants the suggestion that Delaware
acted duplicitously.

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Opinion of the Court
See Report 21. One New Jersey legislator looked into re
commissioning the museum-piece battleship U. S. S. New Jer
sey, in the event that the vessel might be needed to repel an
armed invasion by Delaware. See ibid.
New Jersey commenced the instant action in 2005, seeking
a declaration that Article VII of the 1905 Compact estab
lishes its exclusive jurisdiction “to regulate the construction
of improvements appurtenant to the New Jersey shore of
the Delaware River within the Twelve-Mile Circle, free of
regulation by Delaware.” Motion to Reopen and for Supple
mental Decree 35; see Report 22, 29. We granted leave to
file a bill of complaint. 546 U. S. 1028 (2005). Delaware op
posed New Jersey’s reading of Article VII, and maintained
that the 1905 Compact did not give New Jersey exclusive
authority to “approve projects that encroach on Delaware
submerged lands without any say by Delaware.” Brief for
Delaware in Opposition to New Jersey’s Motion to Reopen
and for Supplemental Decree 21; see Report 23, 29.
The Special Master appointed by the Court, Ralph I.
Lancaster, Jr., 546 U. S. 1147 (2006), superintended discovery
and carefully considered nearly 6,500 pages of materials pre
sented by the parties in support of cross-motions for sum
mary judgment. Report 27. He ultimately determined
that the “riparian jurisdiction” preserved to New Jersey by
Article VII of the 1905 Compact “is not exclusive” and that
Delaware “has overlapping jurisdiction to regulate . . .
improvements outshore of the low water mark on the New
Jersey side of the River.” Id., at 32. New Jersey filed ex
ceptions to which we now turn.12
12 New Jersey takes no exception to the Special Master’s determinations
that Delaware was not judicially estopped from challenging New Jersey’s
interpretation of Article VII, Report 86–92, and that Delaware has not
lost jurisdiction through prescription and acquiescence, id., at 92–99. See
Exceptions by New Jersey to Report of Special Master and Supporting
Brief 16, n. 5 (hereinafter New Jersey Exceptions).

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Opinion of the Court
III
At the outset, we summarize our decision and the principal
reasons for it. In accord with the Special Master, we hold
that Article VII of the 1905 Compact does not grant New
Jersey exclusive jurisdiction over all riparian improvements
extending outshore of the low-water mark. First, the novel
term “riparian jurisdiction,” which the parties employed in
the Compact, is properly read as a limiting modifier and not
as synonymous with “exclusive jurisdiction.” Second, an
1834 compact between New Jersey and New York casts in
formative light on the later New Jersey-Delaware accord.
Third, our decision in Virginia v. Maryland, 540 U. S. 56
(2003), provides scant support for New Jersey’s claim. We
there held that a Maryland-Virginia boundary settlement
gave Virginia “sovereign authority, free from regulation by
Maryland, to build improvements appurtenant to [Virginia’s]
shore and to withdraw water from the [Potomac] River.”
Id., at 75. Delaware’s 1905 agreement to New Jersey’s exer
cise of “riparian jurisdiction,” made when the boundary was
still disputed, cannot plausibly be read as an equivalent rec
ognition of New Jersey’s sovereign authority. Finally, Dela
ware’s claim to regulating authority is supported by New
Jersey’s acceptance (until the present controversy) of Dela
ware’s jurisdiction over water and land within its domain to
preserve the quality and prevent deterioration of the State’s
coastal areas.
A
New Jersey hinges its case on Article VII of the 1905 Com
pact, which it reads as conferring on “each State complete
regulatory authority over the construction and operation of
riparian improvements on its shores, even if the improve
ments extend past the low-water mark.” Exceptions by
New Jersey to Report of Special Master and Supporting
Brief 16 (hereinafter New Jersey Exceptions). New Jersey

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v. Delaware II, New Jersey recognizes, confirmed Delaware’s
sovereign ownership of the River and subaqueous soil within
the twelve-mile circle. But, New Jersey emphasizes, the
Court expressly made that determination “subject to the
Compact of 1905.” 291 U. S., at 385. New Jersey acknowl
edges that Delaware “unquestionably can exercise its police
power outshore of the low-water mark.” New Jersey Ex
ceptions 16. New Jersey contends, however, that Delaware
cannot do so in a manner that would interfere with the au
thority over riparian rights that Article VII of the 1905
Compact preserves for New Jersey. Ibid.
Because the meaning of the 1905 Compact and, in particu
lar, Article VII, is key to the resolution of this controversy,
we focus our attention on that issue. Significantly, Article
VII provides that “[e]ach State may, on its own side of the
river, continue to exercise” not “exclusive jurisdiction” or
“jurisdiction” unmodified, but “riparian jurisdiction of every
kind and nature.” 34 Stat. 860. New Jersey argues that
“riparian jurisdiction” should be read broadly to encompass
full police-power jurisdiction over activities carried out on
riparian structures. New Jersey Exceptions 36–37. If
New Jersey enjoys full police power over improvements ex
tending from its shore, New Jersey reasons, then necessarily
Delaware cannot encroach on that authority. See Report 54.
1
We agree with the Special Master that “ ‘riparian’ is a lim
iting modifier.” Report 57. Interpreting an interstate
compact, “[j]ust as if [we] were addressing a federal statute,”
New Jersey v. New York, 523 U. S. 767, 811 (1998), it would
be appropriate to construe a compact term in accord with its
common-law meaning, see Morissette v. United States, 342
U. S. 246, 263 (1952). The term “riparian jurisdiction,” how
ever, was not a legal term of art in 1905, nor is it one now.
See 7 Del. App. 4279, 4281 (Expert Report of Professor Jo

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seph L. Sax (Nov. 7, 2006)). As the Special Master stated,
“riparian jurisdiction” appears to be a verbal formulation
“devised by the [1905 Compact] drafters specifically for Arti
cle VII.” Report 54.13
Elsewhere in the Compact, one finds the more familiar
terms “jurisdiction” (in the introductory paragraphs and,
most notably, in Article VIII) or “exclusive jurisdiction” (in
Article IV).14 To attribute to “riparian jurisdiction” the
same meaning as “jurisdiction” unmodified, or to equate the
novel term with the distinct formulation “exclusive juris
diction,” would deny operative effect to each word in the
Compact, contrary to basic principles of construction. See
United States v. Menasche, 348 U. S. 528, 538–539 (1955).
In this regard, Article VIII bears reiteration:
“Nothing herein contained shall affect the territorial
limits, rights, or jurisdiction of either State of, in, or
over the Delaware River, or the ownership of the sub
aqueous soil thereof, except as herein expressly set
forth.” 34 Stat. 860.
Presumably drafted in recognition of the still-unresolved
boundary dispute, see supra, at 603–606, Article VIII re
quires an express statement in the Compact in order to “af
fect the territorial . . . jurisdiction of either State . . . over
the Delaware River.” We resist reading the uncommon
term “riparian jurisdiction,” even when aggrandized by the
13 The term appears in no other interstate compact. New Jersey’s codi
fication of the 1905 Compact, N. J. Stat. Ann. § 52:28–41 (West 2001), in
cludes the term, but our attention has been called to no other state statute
that does so.
14 The last paragraph of Article IV reads: “Each State shall have and
exercise exclusive jurisdiction within said river to arrest, try, and punish
its own inhabitants for violation of the concurrent legislation related to
fishery herein provided for.” 34 Stat. 860 (emphasis added). See also id.,
at 859 (Articles I and II, recognizing the “exclusive jurisdiction” of each
State in regard to service of criminal process).

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phrase “of every kind and nature,” as tantamount to an ex
press cession by Delaware of its entire “territorial . . .
jurisdiction . . . over the Delaware River.”
2
Endeavoring to fathom the import of the novel term “ri
parian jurisdiction,” the Special Master recognized that a ri
parian landowner ordinarily enjoys the right to build a wharf
to access navigable waters far enough to permit the loading
and unloading of ships. Report 47–49, 58–59. Accord 1
H. Farnham, Law of Waters and Water Rights § 62, p. 279
(1904) (“The riparian owner is also entitled to have his con
tact with the water remain intact. This is what is known as
the right of access, and includes the right to erect wharves
to reach the navigable portion of the stream.”); id., § 111,
p. 520 (“A wharf is a structure on the margin of navigable
water, alongside of which vessels are brought for the sake of
being conveniently loaded or unloaded.”). But the Special
Master also recognized that the right of a riparian owner to
wharf out is subject to state regulation. Report 58; see 1
Farnham, supra, § 63, p. 284 (rights of riparian owner “are
always subordinate to the public rights, and the state may
regulate their exercise in the interest of the public”); Shively
v. Bowlby, 152 U. S. 1, 40 (1894) (“[A] riparian proprietor . . .
has the right of access to the navigable part of the stream in
front of his land, and to construct a wharf or pier projecting
into the stream . . . , subject to such general rules and regula
tions as the legislature may prescribe for the protection of
the public . . . .” (internal quotation marks omitted)).
New Jersey took no issue with the Special Master’s recog
nition that States, in the public interest, may place restric
tions on a riparian proprietor’s activities. In its response to
Delaware’s request for admissions, New Jersey readily ac
knowledged that a person wishing to conduct a particular
activity on a wharf, in addition to obtaining a riparian grant,
would have to comply with all other “applicable New Jersey

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laws, and local laws.” 6 Del. App. 4147, 4156 (New Jersey’s
Responses to Delaware’s First Request for Admissions ¶ 22
(Sept. 8, 2006)). See also Restatement (Second) of Torts
§ 856, Comment e, pp. 246–247 (1977) (“[A] state may exercise
its police power by controlling the initiation and conduct of
riparian and nonriparian uses of water.”). But New Jersey
sees itself, to the exclusion of Delaware, as the State empow
ered to regulate, for the benefit of the public, New Jersey
landowners’ exercise of riparian rights.
In the ordinary case, the State that grants riparian rights
is also the State that has regulatory authority over the exer
cise of those rights. But cf. Cummings v. Chicago, 188 U. S.
410, 431 (1903) (federal regulation of wharfing out in the Cal
umet River did not divest local government of regulatory
authority based on location of project within that govern
ment’s territory). In this regard, the negotiators of the 1905
Compact faced an unusual situation: As long as the boundary
issue remained unsettled, they could not know which State
was sovereign within the twelve-mile circle beyond New Jer
sey’s shore. They likely knew, however, that “[i]n a case of
wharfing out . . . ‘[t]he rights of a riparian owner upon a
navigable stream in this country are governed by the law of
the State in which the stream is situated.’ ” 1 S. Wiel,
Water Rights in the Western States § 898, p. 934 (3d ed. 1911)
(quoting Weems Steamboat Co. of Baltimore v. People’s
Steamboat Co., 214 U. S. 345, 355 (1909)). With the issue of
sovereignty reserved by the 1905 Compact drafters for an
other day, the Special Master’s conclusion that Article VII’s
reference to “riparian jurisdiction” did not mean “exclusive
jurisdiction” is difficult to gainsay.
The Special Master pertinently observed that, as New Jer
sey read the 1905 Compact, Delaware had given up all gov
erning authority over the disputed area while receiving
nothing in return. He found New Jersey’s position “implau
sible.” Report 63. “Delaware,” the Special Master stated,
“would not have willingly ceded all jurisdiction over matters

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taking place on land that [Delaware adamantly] contended it
owned exclusively and outright.” Id., at 64.15
New Jersey asserts that Delaware did just that, as shown
by representations made during proceedings in New Jersey
v. Delaware II. New Jersey Exceptions 44. Delaware’s
reply brief before the Special Master in that case stated: “Ar
ticle VII of the Compact is obviously merely a recognition of
the rights of the riparian owners of New Jersey and a cession
to the State of New Jersey by the State of Delaware of juris
diction to regulate those rights.” 1 App. of New Jersey on
Motion for Summary Judgment 123a. Further, at oral argu
ment before the Special Master in that earlier fray, Dela
ware’s counsel said that, in his view, the 1905 Compact
“ceded to the State of New Jersey all the right to control the
erection of [wharves extending into the Delaware River from
New Jersey’s shore] and to say who shall erect them.” Id.,
at 126a–1.
The Special Master in the instant case found New Jersey’s
position dubious, as do we. The representations Delaware
made in the course of New Jersey v. Delaware II, the Special
Master here observed, were “fully consistent with [the Mas
ter’s] interpretation of Article VII [of the 1905 Compact].”
Report 89. New Jersey did indeed preserve “the right to
15 The dissent insists that Delaware received “plenty in return.” Post,
at 630. But, in truth, the 1905 Compact gave neither State “plenty.”
Each State accommodated to the other to assure equal access to fishing
rights in the River. See supra, at 604, n. 5. Delaware agreed to the
Compact “not [as] a settlement of the disputed boundary, but [as] a truce
or modus vivendi.” 1 Del. App. 190. In deciding whether to proceed
with the litigation, Delaware’s Attorney General advised that the suit
“would entail very considerable expense.” 2 id., at 1069, 1075 (Letter
from Herbert Ward to Gov. John Hunn (Jan. 31, 1903)). He noted, how
ever, that the process of preparing Delaware’s Answer had “greatly
strengthened the belief and reliance of counsel . . . upon the justice of her
claim.” Id., at 1076. The decision in New Jersey v. Delaware II con
firmed Delaware’s conviction. See supra, at 605, n. 6.

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exercise its own jurisdiction over riparian improvements ap
purtenant to its shore.” Ibid. But, critically, Delaware no
where “suggested that New Jersey would have the exclusive
authority to regulate all aspects of riparian improvements,
even if on Delaware’s land.” Ibid.
Delaware, in its argument before the Special Master, was
equally uncompromising. As a result of the 1934 boundary
determination, Delaware urged, “the entire River is on Dela
ware’s ‘own side,’ and New Jersey consequently ha[d] no
‘side’ of the River on which to exercise any riparian rights
or riparian jurisdiction.” Id., at 36. Article VII of the 1905
Compact, according to Delaware, was a “temporary” meas
ure, “entirely . . . contingent on the ultimate resolution of the
boundary.” Id., at 39. That reading, the Special Master
demonstrated, was altogether fallacious. Id., at 36–40.
Seeking to harmonize Article VII with the boundary de
termination, the Special Master reached these conclusions.
First, the 1905 Compact gave New Jersey no authority to
grant lands owned by Delaware. Id., at 45–46. Second, Ar
ticle VII’s preservation to each State of “riparian jurisdic
tion” means that New Jersey may control the riparian rights
ordinarily and usually enjoyed by landowners on New Jer
sey’s shore. For example, New Jersey may define “how far
a riparian owner can wharf out, the quantities of water that
a riparian owner can draw from the River, and the like.”
Id., at 57–58. Nevertheless, New Jersey’s regulatory au
thority is qualified once the boundary line at low water
is passed. Id., at 58. Just as New Jersey cannot grant
land belonging to Delaware, so New Jersey cannot author
ize activities that go beyond the exercise of ordinary and
usual riparian rights in the face of contrary regulation by
Delaware.
B
Interstate compacts, like treaties, are presumed to be “the
subject of careful consideration before they are entered into,

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and are drawn by persons competent to express their mean
ing and to choose apt words in which to embody the pur
poses of the high contracting parties.” Rocca v. Thompson,
223 U. S. 317, 332 (1912). Accordingly, the Special Master
found informative a comparison of language in the 1905 Com
pact with language contained in an 1834 compact between
New Jersey and New York. See Report 65. That compact
established the two States’ common boundary along the Hud
son River. Act of June 28, 1834, ch. 126, 4 Stat. 708. Simi
lar to the boundary between New Jersey and Delaware set
tled in 1934 in New Jersey v. Delaware II, the 1834 accord
located the New Jersey-New York boundary at “the low
water-mark on the westerly or New Jersey side [of the Hud
son River].” Art. Third, 4 Stat. 710; cf. supra, at 602. The
1834 agreement, however, expressly gave to New Jersey
“the exclusive right of property in and to the land under
water lying west of the middle of the bay of New York, and
west of the middle of that part of the Hudson river which
lies between Manhattan island and New Jersey” and “the
exclusive jurisdiction of and over the wharves, docks, and
improvements, made and to be made on the shore of the said
state . . . .” Art. Third, ¶¶ 1, 2, 4 Stat. 710 (emphasis added).
“Comparable language [conferring exclusive authority],”
the Special Master observed, “is noticeably absent in the
[1905] Compact.” Report 66. The Master found this dis
parity “conspicuous,” id., at 68, for “[s]everal provisions in
the two interstate compacts [contain] strikingly similar lan
guage,” id., at 66; see id., App. J (Table Comparing Similar
Provisions in the New Jersey-New York Compact of 1834
and the New Jersey-Delaware Compact of 1905). Given that
provisions of the 1905 Compact appear to have been adopted
almost verbatim from New Jersey’s 1834 accord with New
York, see ibid., New Jersey could hardly claim ignorance that
Article VII could have been drafted to grant New Jersey
“exclusive jurisdiction” (not merely “riparian jurisdiction”)

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over wharves and other improvements extending from its
shore into navigable Delaware River waters, id., at 67.16
C
New Jersey urged before the Special Master, and in its
exceptions to his report, that Virginia v. Maryland, 540
U. S. 56, is dispositive of this case.17 Both cases involved
an interstate compact, which left the boundary between the
contending States unresolved, and a later determination set
tling the boundary. And both original actions were referred
to Ralph I. Lancaster, Jr., as Special Master. We find per
suasive the Special Master’s reconciliation of his recommen
dations in the two actions. See Report 64–65, n. 118.
Virginia v. Maryland involved a 1785 compact and an 1877
arbitration award. Agreeing with the Special Master, we
held that the arbitration award permitted Virginia to con
struct a water intake structure extending into the Potomac
River, even though the award placed Virginia’s boundary at
the low-water mark on its own side of the Potomac. See 540
U. S., at 75. “Superficially,” the Special Master said, “that
holding would appear to support New Jersey’s argument
here, i. e., that construction of wharves off New Jersey’s
shore should not be subject to regulation by Delaware.”
Report 64, n. 118. But, the Special Master explained, the
result in Virginia v. Maryland turned on “the unique lan
guage of the compact and arbitration award involved in that
case.” Report 64, n. 118.
16 The 1834 accord was the subject of significant litigation in the years
leading up to and surrounding the adoption of the 1905 Compact. Report
67. Notably, New York’s highest court concluded Article Third of the
1834 interstate agreement meant what it said: New Jersey had “exclusive”
jurisdiction over wharves extending from and beyond its shore; therefore
New York lacked authority to declare those wharves to be nuisances. See
New York v. Central R. Co. of N. J., 42 N. Y. 283, 293 (1870); Report 67.
17 The dissent, post, at 638–640, essentially repeats New Jersey’s
argument.

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The key provision of the 1785 compact between Maryland
and Virginia, we observed, addressed only “the right [of the
citizens of each State] to build wharves and improvements
regardless of which State ultimately was determined to be
sovereign over the River.” 540 U. S., at 69. Concerning
the rights of the States, the 1877 arbitration award, not the
1785 compact, was definitive. See id., at 75. The key pro
vision of that award recognized the right of Virginia, “qua
sovereign,” “to use the River beyond low-water mark,” a
right “nowhere made subject to Maryland’s regulatory au
thority.” Id., at 72.
Confirming the “sovereign character” of Virginia’s right,
we noted, Maryland had proposed to the arbitrators that the
boundary line between the States be drawn around “all
wharves and other improvements now extending or which
may hereafter be extended, by authority of Virginia from the
Virginia shore into the [Potomac] beyond low water mark.”
Id., at 72, n. 7 (internal quotation marks omitted). Although
the formulation Maryland proposed was not used in the arbi
tration award, the arbitrators plainly manifested their inten
tion to accomplish the same end: to safeguard “Virginia’s au
thority to construct riparian improvements outshore of the
low water mark without regulation by Maryland.” Report
65, n. 118; see Virginia v. Maryland, 540 U. S., at 73, n. 7.
By contrast, in the instant case, neither the 1905 Compact,
nor New Jersey v. Delaware II, the 1934 decision settling the
boundary dispute, purported to give New Jersey “all regula
tory oversight (as opposed to merely riparian oversight)” or
to endow New Jersey with authority “exclusive of jurisdic
tion by Delaware.” Report 65, n. 118; see supra, at 610–615.
D
We turn, finally, to the parties’ prior course of conduct, on
which the Special Master placed considerable weight. See
Report 68–84; cf. O’Connor v. United States, 479 U. S. 27, 33

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(1986) (“The course of conduct of parties to an international
agreement, like the course of conduct of parties to any con
tract, is evidence of its meaning.”).
Until the 1960’s, wharfing out from the New Jersey shore
into Delaware territory was not a matter of controversy be
tween the two States. From 1851, when New Jersey began
issuing grants for such activity, through 1969, only 11 con
structions straddled the interstate boundary. Report 74.
At the time of the 1905 Compact and continuing into the
1950’s, Delaware, unlike New Jersey, issued no grants or
leases for its subaqueous lands. Delaware regulated ripar
ian improvements solely under its common law, which limited
developments only to the extent they constituted public nui
sances. Id., at 69.
In 1961, Delaware enacted its first statute regulating sub
merged lands, and in 1966, it enacted broader legislation gov
erning leases of state-owned subaqueous lands. Id., at 70.
The State grandfathered piers and wharves built prior to
the effective date of the regulations implementing the 1966
statute. Id., at 70–71. Permits were required, however,
for modifications to the grandfathered structures and for
new structures. Id., at 71.18
Then, in 1971, Delaware enacted the DCZA to prevent
“a significant danger of pollution to the coastal zone.” Del.
Code Ann., Tit. 7, § 7001. The DCZA prohibits within the
coastal zone “[h]eavy industry uses of any kind” and “off
shore gas, liquid or solid bulk product transfer facilities.”
§ 7003. In 1972, Delaware rejected as a prohibited bulk
transfer facility El Paso Eastern Company’s request to build
an LNG unloading facility extending from New Jersey into
18 In 1986, Delaware adopted its current Subaqueous Lands Act, 65 Del.
Laws ch. 508, Del. Code Ann., Tit. 7, ch. 72 (2001), which authorizes
DNREC to regulate any potentially polluting use made of Delaware’s sub
aqueous lands and to grant or lease property interests in those lands. See
id., § 7206(a).

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Delaware. 5 Del. App. 3483 (Letter from David Keifer, Di
rector of Delaware State Planning Office, to Barry Hunt
singer, El Paso Eastern Company (Feb. 23, 1972)). Shortly
before denying El Paso’s application, Delaware notified New
Jersey’s Department of Environmental Protection (NJDEP),
which raised no objection to Delaware’s refusal to permit the
LNG terminal.19 Delaware similarly relied on the DCZA to
deny permits for construction of the Crown Landing unload
ing facility at issue in this case. Report 20.
Also in 1972, Congress enacted the federal Coastal Zone
Management Act, 86 Stat. 1280, 16 U. S. C. § 1451 et seq.,
which required States to submit their coastal manage
ment programs to the Secretary of Commerce for review
and approval. In return, States with approved programs
would receive federal funding for coastal management. See
§§ 1454–1455. Delaware’s coastal management program, ap
proved by the Secretary in 1979, specifically addressed LNG
facilities and reported that “ ‘no site in Delaware [is] suitable
for the location of any LNG import-export facility.’ ” Re
port 72 (quoting 4 Del. App. 2591 (Dept. of Commerce, Na
tional Oceanic and Atmospheric Admin. (NOAA), Delaware
Coastal Management Program and Final Environmental Im
pact Statement 57 (Mar. 1980))). The next year, 1980, New
Jersey gained approval for its coastal management program.
The Special Master found telling, as do we, a representation
New Jersey made in its submission to the Secretary:
“The New Jersey and Delaware Coastal Management
agencies . . . have concluded that any New Jersey project
extending beyond mean low water must obtain coastal
permits from both states. New Jersey and Delaware,
therefore, will coordinate reviews of any proposed devel
19 5 Del. App. 3481 (Letter from David Keifer, Director of Delaware
State Planning Office, to Richard Sullivan, Commissioner, NJDEP (Feb.
17, 1972)); id., at 3485 (Letter from Mr. Sullivan, NJDEP, to Mr. Keifer
(Mar. 2, 1972)).

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opment that would span the interstate boundary to en
sure that no development is constructed unless it would
be consistent with both state coastal management pro
grams.” Report 81 (quoting 4 Del. App. 2657 (NOAA,
N. J. Coastal Management Program and Final Environ
mental Impact Statement 20 (Aug. 1980)); emphasis
added).
See also Report 72–73. That representation, the Special
Master observed, “is fundamentally inconsistent with the po
sition advanced by New Jersey here, i. e., that only New Jer
sey has the right to regulate such projects.” Id., at 73.
As the Special Master reported, just three structures ex
tending from New Jersey into Delaware were built between
1969 and 2006. Delaware’s DNREC issued permits for each
of them. Id., at 74–76. One of those projects was under
taken by New Jersey itself. The State, in 1996, sought to
refurbish a stone pier at New Jersey’s Fort Mott State Park.
Id., at 75–76. New Jersey issued a waterfront development
permit for the project, but that permit approved structures
only to the low-water mark. Delaware’s approval was
sought and obtained for structures outshore of that point.
Even during the pendency of this action, New Jersey applied
to Delaware for renewal of the permit covering the portion
of the Fort Mott project extending into Delaware. Ibid.20
20 New Jersey asserts “the most striking thing about this [course of con
duct] evidence is the lack of any reference by . . . New Jersey officials to
the [1905] Compact itself, much less to the terms of Article VII.” New
Jersey Exceptions 48. “All citizens,” however, “are presumptively
charged with knowledge of the law.” Atkins v. Parker, 472 U. S. 115, 130
(1985). The 1905 Compact is codified at N. J. Stat. Ann. §§ 52:28–34 to
52:28–45. We find unconvincing New Jersey’s contention that its officials
were ignorant of the State’s own statutes. The assertion is all the more
implausible given New Jersey’s recognition of Delaware’s regulatory au
thority in New Jersey’s coastal management plan, despite a New Jersey
county planning board’s objection to that acknowledgment. Report 82; 4
Del. App. 3135 (NOAA, N. J. Coastal Management Program and Final
Environmental Impact Statement 499 (Aug. 1980)).

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IV
New Jersey v. Delaware II upheld Delaware’s ownership
of the River and subaqueous soil within the twelve-mile cir
cle. The 1905 Compact did not ordain that this Court’s 1934
settlement of the boundary would be an academic exercise
with slim practical significance. Tending against a reading
that would give New Jersey exclusive authority, Article VIII
of the Compact, as earlier emphasized, see supra, at 611,
states: “Nothing herein contained shall affect the territorial
limits, rights or jurisdiction of either State of, in or over
the Delaware River, or the ownership of the subaqueous soil
thereof, except as herein expressly set forth.” Nowhere
does Article VII “expressly set forth” Delaware’s lack of any
governing authority over territory within the State’s own
borders. Cf. Report 43–46.
The Special Master correctly determined that Delaware’s
once “hands off ” policy regarding coastal development did
not signal that the State never could or never would assert
any regulatory authority over structures using its subaque
ous land. Id., at 69–70. In the decades since Delaware
began to manage its waters and submerged lands to prevent
“a significant danger of pollution to the coastal zone,” Del.
Code Ann., Tit. 7, § 7001, the State has followed a consistent
course: Largely with New Jersey’s cooperation, Delaware
has checked proposed structures and activity extending be
yond New Jersey’s shore into Delaware’s domain in order to
“protect the natural environment of [Delaware’s] . . . coastal
areas.” Ibid.
* * *
Given the authority over riparian rights that the 1905
Compact preserves for New Jersey, Delaware may not im
pede ordinary and usual exercises of the right of riparian
owners to wharf out from New Jersey’s shore. The Crown
Landing project, however, goes well beyond the ordinary or
usual. See supra, at 606–607. Delaware’s classification of
the proposed LNG unloading terminal as a “[h]eavy industry

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use” and a “bulk product transfer facilit[y],” Del. Code Ann.,
Tit. 7, §§ 7001, 7003, has not been, and hardly could be, chal
lenged as inaccurate.21 Consistent with the scope of its re
tained police power to regulate certain riparian uses, it was
within Delaware’s authority to prohibit construction of the
facility within its domain.22 As recommended by the Special
Master, we confirm Delaware’s authority to deny permission
for the Crown Landing terminal, overrule New Jersey’s ex
ceptions, and enter, with modifications consistent with this
opinion, the decree proposed by the Special Master.
It is so ordered.
Justice Breyer took no part in the consideration or deci
sion of this case.
DECREE
The Court having exercised original jurisdiction over this
controversy between two sovereign States; the issues having
been referred to the Special Master appointed by the Court;
the Court having received briefs and heard oral argument
on New Jersey’s exceptions to the Report of the Special Mas
ter and Delaware’s responses thereto; and the Court having
issued its Opinion, supra, at 601–622 and this page.
It is Hereby Ordered, Adjudged, Declared, and Decreed
as follows:
1. (a) The State of New Jersey may, under its laws, grant
and thereafter exercise governing authority over ordinary
21 We agree with the dissent, post, at 644, that Delaware could not ration
ally categorize as a “heavy industry use” a terminal for unloading cargoes
of tofu and bean sprouts. On the other hand, we cannot fathom why, if
Delaware could block a casino, or even a restaurant on a pier extending
into its territory, post, at 633–634, it could not reject a permit for the LNG
terminal described, supra, at 606–607.
22 In deploring New Jersey’s loss, post, at 644–645, the dissent overlooks
alternative sites in New Jersey that could accommodate BP’s LNG project.
7 Del. App. 4306 (Cherry Affidavit).

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624 NEW JERSEY v. DELAWARE
Opinion of Stevens, J.
and usual riparian rights for the construction, maintenance,
and use of wharves and other riparian improvements appur
tenant to the eastern shore of the Delaware River within the
twelve-mile circle and extending outshore of the low-water
mark; and further
(b) The State of Delaware may, under its laws and subject
to New Jersey’s authority over riparian rights as stated in
the preceding paragraph, exercise governing authority over
the construction, maintenance, and use of those same
wharves and other improvements appurtenant to the eastern
shore of the Delaware River within the twelve-mile circle
and extending outshore of the low-water mark, to the extent
that they exceed ordinary and usual riparian uses.
(c) In refusing to permit construction of the proposed
Crown Landing LNG unloading terminal, Delaware acted
within the scope of its governing authority to prohibit unrea
sonable uses of the river and soil within the twelve-mile
circle.
2. Except as hereinbefore provided, the motions for sum
mary judgment of both the States of New Jersey and Dela
ware are denied and their prayers for relief dismissed with
prejudice.
3. The party States shall share equally in the compensa
tion of the Special Master and his assistants, and in the costs
of this litigation incurred by the Special Master.
4. The Court retains jurisdiction to entertain such further
proceedings, enter such orders, and issue such writs as it
may from time to time deem necessary or desirable to give
proper force and effect to this Decree or to effectuate the
rights of the parties.
Justice Stevens, concurring in part and dissenting in
part.
While I agree with most of the reasoning in the Court’s
opinion, I do not agree with the rule it announces, or with
all of the terms of its decree. In my view, the construction

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Opinion of Stevens, J.
and maintenance of wharves and other riparian improve
ments that extend into territory over which Delaware is sov
ereign may only be authorized by New Jersey to the extent
that such activities are not inconsistent with Delaware’s ex
ercise of its police power. I therefore join paragraphs 1(c),
2, 3, and 4 of the Court’s decree, and write separately to
explain that in my view, New Jersey’s authority to regulate
beyond the low-water mark on its shore is subordinate to the
paramount authority of the sovereign owner of the river,
Delaware.
I
At common law, owners of land abutting bodies of water
enjoyed certain rights by virtue of their adjacency to that
water. See 1 H. Farnham, Law of Waters and Water Rights
§ 62, p. 279 (1904) (“The riparian owner is . . . entitled to have
his contact with the water remain intact. This is what is
known as the right of access, and includes the right to erect
wharves to reach the navigable portion of the stream”). Yet
those rights were by no means unlimited; “[w]hile the rights
of the riparian owner cannot be destroyed . . . they are al
ways subordinate to the public rights, and the state may reg
ulate their exercise in the interest of the public.” Id., § 63,
at 284. See also 4 Restatement (Second) of Torts § 856,
Comment e (1977) (“[A] state may exercise its police power
by controlling the initiation and conduct of riparian and non
riparian uses of water”).1
1 See also Weber v. Board of Harbor Comm’rs, 18 Wall. 57, 64–65 (1873)
(“[A] riparian proprietor, whose land is bounded by a navigable stream,
has the right of access to the navigable part of the stream in front of his
land, and to construct a wharf or pier projecting into the stream, for his
own use, or the use of others, subject to such general rules and regula
tions as the legislature may prescribe for the protection of the public”
(emphasis added)); Yates v. Milwaukee, 10 Wall. 497, 504 (1871) (“[The
owner of a lot along the river] is . . . entitled to the rights of a riparian
proprietor whose land is bounded by a navigable stream . . . subject to
such general rules and regulations as the legislature may see proper to
impose” (emphasis added)).

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626 NEW JERSEY v. DELAWARE
Opinion of Stevens, J.
From these authorities it is clear that the rights of riparian
landowners are ordinarily subject to regulation by some
State. The only relevant question, then, for purposes of this
case, is which State. As the Court notes, “[i]n the ordinary
case, the State that grants riparian rights is also the State
that has regulatory authority over the exercise of those
rights,” ante, at 613. But the history of the relationship be
tween these two States vis-a` -vis their jointly bounded river
takes this case out of the ordinary. In light of the 1905 Com
pact, our previous decision in New Jersey v. Delaware, 291
U. S. 361 (1934), and the States’ course of conduct, I agree
with the Court’s sensible conclusion that within the twelve
mile circle, the two States’ authority over riparian improve
ments is to some extent overlapping. In my judgment, how
ever, that overlapping authority does not extend merely to
the regulation of “riparian structures and operations of ex
traordinary character” beyond the low-water mark on New
Jersey’s shore, ante, at 603, but to all riparian structures and
operations extending out from New Jersey into Delaware’s
domain. I would hold, therefore, that New Jersey may only
grant, and thereafter exercise governing authority over, the
rights of construction, maintenance, and use of wharves and
other riparian improvements beyond the low-water mark to
the extent that the grant and exercise of those rights is not
inconsistent with the police power of the State of Delaware.
II
In Virginia v. Maryland, 540 U. S. 56, 80 (2003), I set forth
my view that the rights enjoyed by riparian landowners
along the Virginia shore of the Potomac River were subject
to regulation by the owner of the river, Maryland. I there
explained that “th[e] landowners’ riparian rights are—like
all riparian rights at common law—subject to the paramount
regulatory authority of the sovereign that owns the river,
[Maryland],” id., at 82 (dissenting opinion). I would have

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Opinion of Stevens, J.
held, therefore, that it was within Maryland’s power to pre
vent the construction of the water intake facility that Fairfax
County, Virginia, wished to build. A fortiori, then—putting
to one side the distinctions the Court today draws between
the two cases, ante, at 617–618—Delaware possesses the au
thority, under its laws, to restrict the construction of the
proposed liquefied natural gas facility that would extend
hundreds of feet into its sovereign territory.
But inherent in the notion of concurrency are limits to the
authority of even the sovereign that owns the river. In Vir
ginia v. Maryland, supra, I noted that the case did not re
quire the Court to “determine the precise extent or charac
ter of Maryland’s regulatory jurisdiction,” because the issue
presented was merely “whether Maryland may impose any
limits on . . . Virginia landowners whose property happens
to abut the Potomac.” Id., at 82 (dissenting opinion). Simi
larly, in this case we need not definitively settle the extent
to which there may exist limitations on Delaware’s exercise
of authority over its river and improvements thereon; for
even Delaware’s counsel conceded at argument that Dela
ware could not impose a total ban on the construction of
wharves extending out from New Jersey’s shores. Tr. of
Oral Arg. 49, 50. Similarly, Delaware should not be permit
ted to treat differently riparian improvements extending
outshore from New Jersey’s land and those commencing on
Delaware’s own soil, absent some reasonable police-power
purpose for that differential treatment. Apart from those
clear constraints, however—and subject to applicable federal
law 2—in my view it is Delaware that possesses the primary
authority over riparian improvements extending into its
territory.
2 See 4 Restatement (Second) of Torts § 856, Comment e (1977) (“The
United States may prohibit, limit and regulate the diversion, obstruction
or use of navigable waters . . . if those acts affect the navigable capacity
of navigable waters”).

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628 NEW JERSEY v. DELAWARE
Scalia, J., dissenting
III
Despite my differing views set forth herein, I do agree
with the conclusion that Delaware may prohibit construction
of the facility that spawned this complaint, and therefore join
the portion of the Court’s decree so finding.
Justice Scalia, with whom Justice Alito joins,
dissenting.
With all due respect, I find the Court’s opinion difficult to
accept. The New Jersey-Delaware Compact of 1905 (Com
pact or 1905 Compact), Art. VII, 34 Stat. 860, addressed the
“exercise [of] riparian jurisdiction,” and the power to “make
grants . . . of riparian . . . rights.” The particular riparian
right at issue here is the right of wharfing out. All are
agreed that jurisdiction and power over that right were
given to New Jersey on its side of the Delaware River. The
Court says, however, that that jurisdiction and power was
not exclusive. I find that difficult to accept, because if Dela
ware could forbid the wharfing out that Article VII allowed
New Jersey to permit, Article VII was a ridiculous nullity.
That could not be what was meant. The Court seeks to
avoid that obstacle to credibility by saying that Delaware’s
jurisdiction and power is limited to forbidding “activities
that go beyond the exercise of ordinary and usual riparian
rights.” Ante, at 615. It is only “riparian structures and
operations of extraordinary character” over which Delaware
retains “overlapping authority to regulate.” Ante, at 603
(emphasis added). But that also is difficult to accept, be
cause the Court explains neither the meaning nor the prove
nance of its “extraordinary character” test. The exception
(whatever it means) has absolutely no basis in prior law,
which regards as beyond the “ordinary and usual” (and hence
beyond the legitimate) only that wharfing out which inter
feres with navigation. So unheard of is the exception that
its first appearance in this case is in the Court’s opinion.
I would sustain New Jersey’s objections to the Special
Master’s Report.

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Scalia, J., dissenting
I
I must begin by clearing some underbrush. One of Dela
ware’s principal arguments—an argument accepted by the
Master and implicitly accepted by the Court—is that the
1905 Compact must not be construed to limit Delaware’s
pre-Compact (albeit at the time unrecognized) sovereign con
trol over the Delaware River, because of the “strong pre
sumption against defeat of a State’s title” in interpreting
agreements. See Report of Special Master 42–43 (Report)
(quoting United States v. Alaska, 521 U. S. 1, 34 (1997); inter
nal quotation marks omitted). According to Delaware, this
presumption establishes that the 1905 Compact gave New
Jersey the authority to allocate riparian rights, but left with
Delaware the power to veto exercises of those rights under
its general police-power authority.
I have written of this presumption elsewhere that it “has
little if any independent legal force beyond what would be
dictated by normal principles of contract interpretation. It
is simply a rule of presumed (or implied-in-fact) intent.”
United States v. Winstar Corp., 518 U. S. 839, 920 (1996)
(opinion concurring in judgment). It is a manifestation of
the commonsense intuition that a State will rarely contract
away its sovereign power. That intuition is sound enough
in almost all state dealings with private citizens, and in some
state dealings with other States. It has no application here,
however, because the whole purpose of the 1905 Compact
was precisely to come to a compromise agreement on the
exercise of the two States’ sovereign powers. Entered into
at a time when Delaware and New Jersey disputed the loca
tion of their boundary, the Compact demarcated the author
ity between the two States with respect to service of civil
and criminal process on vessels, rights of fishery, and ripar
ian rights on either side of the Delaware River within the
circle of a 12-mile radius centered on the town of New Castle,
Delaware. See Compact, 34 Stat. 858; New Jersey v. Dela
ware, 291 U. S. 361, 377–378 (1934) (New Jersey v. Delaware
II). There is no way the Compact can be interpreted other

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630 NEW JERSEY v. DELAWARE
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than as a yielding by both States of what they claimed to be
their sovereign powers. The only issue is what sovereign
powers were yielded, and that is best determined from the
language of the Compact, with no thumb on the scales.
Besides relying on the presumption, the Special Master
believed (and the Court believes) that New Jersey’s claims
must be viewed askance because it is implausible that Dela
ware would have “given up all governing authority over the
disputed area while receiving nothing in return.” Ante, at
613. But Delaware received plenty in return. First of all,
it ensured access of its citizens to fisheries on the side of the
river claimed by New Jersey—something it evidently cared
more about than the power to control wharfing out from the
Jersey shore, which it had never theretofore exercised. And
it obtained (as the Compact observed) “the amicable termi
nation” of New Jersey’s then-pending original action in the
Supreme Court, which had “been pending for twenty-seven
years and upwards.” 34 Stat. 858–859. How plausible it
was that Delaware would give up anything to get rid of that
suit surely depends upon how confident Delaware was that
it would prevail. And to tell the truth, the case appeared
to be going badly. As the Compact observed, the Supreme
Court had issued a preliminary injunction against Delaware
“restraining the execution of certain statutes of the State
of Delaware relating to fisheries.” Id., at 859. The order
issuing that injunction had remarked that Delaware had now
“interfered with and claimed to control the right of fishing”
which New Jerseyans had “heretofore been accustomed” to
exercise without Delaware’s interference for over 70 years.
Order in New Jersey v. Delaware, No. 1, Orig. (filed 1877),
Lodging for Brief of State of Delaware in Opposition to State
of New Jersey’s Motion to Reopen (Tab 1, pp. 52–54). By
providing for dismissal of New Jersey’s suit, the Compact
assured Delaware that the Supreme Court’s rather ominous
sounding preliminary order would not become the Court’s

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Scalia, J., dissenting
holding, perhaps the consequence of a rationale that gave
New Jersey jurisdiction in the river.
II
Article VII of the 1905 Compact between New Jersey and
Delaware reads as follows:
“Each State may, on its own side of the river, continue
to exercise riparian jurisdiction of every kind and na
ture, and to make grants, leases, and conveyances of
riparian lands and rights under the laws of the respec
tive States.” 34 Stat. 860.
As the Court recognizes, this provision allocates to each
State jurisdiction over a bundle of rights that, at the time of
the Compact, riparian landowners, or “owners of land abut
ting on bodies of water,” possessed under the common law
“by reason of their adjacency.” 1 H. Farnham, Law of
Waters and Water Rights § 62, p. 278 (1904) (Farnham).
Those riparian rights included the right to “fill in and to
build wharves and other structures in the shallow water in
front of [the upland] and below low-water mark.” Id.,
§ 113b, at 534. A wharf, the type of structure at issue here,
“imports a place built or constructed for the purpose of load
ing or unloading goods.” Id., § 111, at 520, n. 1. It was con
sidered “a necessary incident of the right to construct
[wharves and piers] that they shall project to a distance from
the shore necessary to reach water which shall float vessels,
the largest as well as the smallest, that are engaged in com
merce upon the water into which they project.” Id., at 522.
Thus, wharves could be built up to “the point of navigabil
ity,” J. Gould, Treatise on the Law of Waters, including
Riparian Rights § 181, p. 352 (2d ed. 1891) (Gould), so long
as they did not “interfere needlessly with the right of nav
igation” possessed by members of the general public upon
navigable waters, 1 Farnham § 111, at 521.
The two States would have been acquainted with this com
mon law. New Jersey case law comported with the horn

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book rules. According to the State’s Court of Errors and
Appeals, it was “undoubted” and the “common understand
ing” that “the owners of land bounding on navigable waters
had an absolute right to wharf out and otherwise reclaim the
land down to and even below low water, provided that they
did not thereby impede the paramount right of navigation.”
Bell v. Gough, 23 N. J. L. 624, 658 (1852) (opinion of Elmer, J.);
see also J. Angell, Treatise on the Right of Property in Tide
Waters and in the Soil and Shores Thereof 234 (1847) (“[T]he
right of a riparian proprietor to ‘wharf out’ into a public
river, is a local custom in New Jersey”); Gould § 171, at 342
(“[T]he common understanding in [New Jersey] carries the
right [to wharf out] even below low-water mark, provided
there is no obstruction to the navigation”). Case author
ity in Delaware seems to be lacking, but in New Jersey v.
Delaware II the State assured the Special Master at oral
argument that “it is undoubtedly true in the State of
Delaware . . . that the upland owner had the right to wharf
out . . . subject only that you must not . . . obstruct naviga
tion.” 1 App. of New Jersey on Motion for Summary Judg
ment 126a–1 (hereinafter NJ App.).
Thus, under the plain terms of the 1905 Compact, each
State had “jurisdiction”—the “authority of a sovereign
power to govern or legislate,” Webster’s International Dic
tionary of the English Language 806 (1898)—over wharfing
out on “its own side of the river.” To emphasize that this
jurisdiction was plenary—that it included, for example, not
merely the power to prohibit wharfing out but also the power
to permit it—Article VII specified that the jurisdiction it
conferred would be “of every kind and nature.”
And finally, the jurisdictional grant was not framed as
though it was conferring on either State some hitherto unex
ercised power. Rather, the Compact provided that each
State would “continue to” exercise the allocated “riparian
jurisdiction,” clearly envisioning that each State would wield
in the future the same authority over riparian rights it had

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Scalia, J., dissenting
wielded in the past. 34 Stat. 860 (emphasis added). This is
significant because, before adoption of the Compact in 1905,
New Jersey alone had regulated the construction of riparian
improvements on New Jersey’s side of the Delaware River.
It had repeatedly authorized the construction of piers and
wharves that extended beyond the low-water line. App. to
Report C–4 to C–5 (listing New Jersey Acts authorizing
riparian landowners to construct wharves); 7 NJ App. 1196a–
1199a. Delaware, by contrast, had never regulated riparian
rights on the New Jersey side, and indeed, at the time of
the Compact even on its own side there was “little evidence
of [the State’s] active involvement in shoreland develop
ment . . . .” Report 69.
I would think all of this quite conclusive of the fact that
New Jersey was given full and exclusive control over ripar
ian rights on the New Jersey side. The Court concludes
that this was not so, however, in part because of the alleged
implausibility of Delaware’s “giv[ing] up all governing
authority . . . while receiving nothing in return,” ante, at 613
(a mistaken contention that I have already addressed), and
in part because “riparian jurisdiction” is different from “ex
clusive jurisdiction,” the term used in an 1834 Compact be
tween New Jersey and New York, which referred to “the
exclusive jurisdiction of and over the wharves, docks, and
improvements, made and to be made on the shore . . . .” Act
of June 28, 1834, ch. 126, Art. Third, 4 Stat. 710.
I willingly concede that exclusive riparian jurisdiction is
not the same as “exclusive jurisdiction” simpliciter. It
includes only exclusive jurisdiction over riparian rights
which, as I have described, include the right to erect
wharves for the loading and unloading of goods. That ju
risdiction does not necessarily include, for example, the
power to permit or forbid the construction of a casino on the
wharf, or even the power to serve legal process on the wharf.
Jurisdiction to control such matters—which were not estab
lished as part of riparian rights by the common-law and

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634 NEW JERSEY v. DELAWARE
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hornbook sources that the parties relied on in framing the
Compact—may well fall outside the scope of the “riparian
jurisdiction” that the Compact grants. See, e. g., Tewksbury
v. Deerfield Beach, 763 So. 2d 1071 (Fla. App. 1999) (operation
of a restaurant on a dock is not included within riparian
rights). Such powers—which may well have been conveyed
by a grant of “exclusive jurisdiction” such as that contained
in the New York-New Jersey Compact—are not at issue in
this case. What is at issue is jurisdiction over the core ri
parian right of building a wharf to be used for the loading
and unloading of cargo. And that that jurisdiction was
given exclusively to New Jersey is made perfectly clear by
the Compact’s recognition of each State’s riparian jurisdic
tion only “on its own side of the river.” 34 Stat. 860 (em
phasis added). It does not take vast experience in textual
interpretation to conclude that this implicitly excludes each
State’s riparian jurisdiction on the other State’s side of the
river. (Inclusio unius est exclusio alterius.) There was
no need, therefore, to specify exclusive riparian jurisdiction.
The Court’s position gains no support from the fact that
the rights of a private riparian owner “ ‘are always subordi
nate to the public rights, and the state may regulate their
exercise in the interest of the public.’ ” Ante, at 612 (quot
ing 1 Farnham § 63, at 284). The Compact did not purport
to convey mere private rights, but rather “riparian jurisdic
tion of every kind and nature.” If that means anything at
all, it means that New Jersey is the State that “may regulate
[the] exercise [of the rights of a private riparian owner] in
the interest of the public.” Delaware’s contention that it re
tains the authority to prohibit under its police power even
those activities that are specifically allowed to New Jersey
under the Compact renders not just Article VII but most of
the Compact a virtual nullity. Article III, for example,
gives the States “common right of fishery throughout, in, and
over the waters” of the Delaware. 34 Stat. 859. But under
its police powers a sovereign State could regulate fishing

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Scalia, J., dissenting
within its public navigable waters. See Gould § 189, at 362.
Thus, under Delaware’s view, just as its ownership of the
riverbed would allow it to trump New Jersey’s authority to
permit wharfing out, so also its ownership of the riverbed
would allow it to prevent fishing. That would be an extraor
dinary result, since the litigation the 1905 Compact was de
signed to resolve arose over fishing rights, after Delaware
enacted a law in 1871 requiring New Jersey fishermen to
obtain a Delaware license. See Report 3–6.
III
The Court, following the Special Master’s analysis, see id.,
at 68–84, asserts that today’s judgment is supported by the
parties’ course of conduct after conclusion of the Compact.
I frankly think post-Compact conduct irrelevant to this case,
since it can properly be used only to clarify an ambiguous
agreement, and there is no ambiguity here. The Court,
moreover, overstates the post-Compact conduct
favoring Delaware’s position and understates the post-
Compact conduct favoring New Jersey. But even if post-
Compact conduct is consulted, no such conduct—none
whatever—supports the Court’s “extraordinary character”
test, whereas several instances of such conduct strongly sup
port the resolution I have suggested in this dissent.
The Court relies upon four instances of Delaware’s exer
cise of jurisdiction over wharfing out from the Jersey shore,
and two instances of New Jersey’s acquiescence in such an
exercise—all postdating 1969. As to the former, the three
structures extending from New Jersey into Delaware built
between 1969 and 2006 were permitted by Delaware, ante,
at 621; and another application for a permit was denied, ante,
at 619–620. The Court never establishes, however, that
these instances of Delaware’s assertion of jurisdiction related
to wharves of “extraordinary character,” which is the only
jurisdiction that the Court’s decree confers upon Delaware.
At best, these assertions of jurisdiction support not the

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Court’s opinion, but rather Delaware’s assertion that it may
regulate all wharves on the river—an assertion that the
Court rejects. The same mismatch is present with both in
stances of New Jersey’s asserted acquiescence. One of them
was New Jersey’s application for Delaware’s permission to
refurbish the stone pier at Fort Mott State Park, described
ante, at 621. That construction could not conceivably be
characterized as of “extraordinary character,” and thus New
Jersey did not need to ask Delaware for permission under
the Court’s theory. In the other instance, described ante, at
620, New Jersey’s Coastal Management Agency assured the
Secretary of Commerce that “ ‘any New Jersey project ex
tending beyond mean low water’ ” (emphasis added) had to
be approved by Delaware’s Coastal Management Agency as
well as New Jersey’s. This again supports Delaware’s the
ory of this case, but not the Court’s.*
While post-Compact conduct provides no—absolutely
zero—support for the Court’s interpretation, it provides sub
stantial support for the one I have suggested. In New Jer
sey v. Delaware II, a case before this Court involving pre
cisely the meaning of the Compact, the attorney general of
*The post-Compact-conduct argument is not the only portion of the
Court’s reasoning that is a mismatch with its conclusion. So is its reliance
upon Article VIII of the Compact, ante, at 611–612, 622—an argument so
weak that it deserves only a footnote response. Article VIII provides
that nothing in the Compact “shall affect the territorial limits, rights, or
jurisdiction of either State . . . except as herein expressly set forth.” 34
Stat. 860 (emphasis added). But New Jersey’s riparian rights are ex
pressly set forth, so the only question—the one I have addressed above—
is what those rights consist of. But accepting the Court’s overreading of
Article VIII (which presumably requires each of the riparian rights to be
named one by one), it is utterly impossible to see why Article VII is any
more “expres[s]” in setting forth New Jersey’s authority over wharves
that lack “extraordinary character” than it is in setting forth her authority
over wharves that possess it. Once again, the argument supports not the
Court’s holding, but rather Delaware’s more expansive theory that it may
regulate any and all wharves built from the Jersey shoreline. There is,
to tell the truth, nothing whatever to support the Court’s holding.

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Scalia, J., dissenting
Delaware (obviously authorized to present the State’s posi
tion on the point) conceded to the Special Master that “Arti
cle VII of the Compact is obviously merely a recognition of
the rights of the riparian owners of New Jersey and a cession
to the State of New Jersey by the State of Delaware of juris
diction to regulate those rights.” 1 NJ App. 123a (emphasis
added). And at oral argument before the Special Master,
Delaware’s special counsel—Clarence A. Southerland, a for
mer state attorney general and future Chief Justice of the
Supreme Court of Delaware, see Delaware Bar in the Twen
tieth Century 375 (H. Winslow, A. Bookout, & P. Hannigan
eds. 1994)—explained that “the Compact of 1905 expressly
acknowledged the rights of the citizens of New Jersey, at
least, by implication to wharf out” and that New Jersey pos
sessed “all the right to control the erection of those wharves
and to say who shall erect them.” 1 NJ App. 126a–1 (em
phasis added). And in its Supreme Court brief in that liti
gation, Delaware assured the Court, without conditions, that
“Delaware has never questioned the right of citizens of New
Jersey to wharf out to navigable water nor can such a right
be questioned now because it is clearly protected by the
Compact of 1905 between the States.” Id., at 139a (empha
sis added). Delaware’s Supreme Court brief rejected New
Jersey’s argument that, if the Court found the boundary line
to be the low-water mark on the New Jersey shore, “the
interests of the riparian owners will be either destroyed or
seriously prejudiced.” Id., at 140a. That concern, Dela
ware said, was misguided because the 1905 Compact “recog
nized the rights of riparian owners in the river to wharf out.”
Ibid. “The effect of Article VII of the Compact,” the brief
explained, “was that the State of Delaware recognized the
rights of the inhabitants on the east side of the river to wharf
out to navigable water. This right had never been ques
tioned and was undoubtedly inserted to put beyond question
the riparian rights (as distinguished from title) of land own
ers in New Jersey.” Id., at 141a. These concessions are

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638 NEW JERSEY v. DELAWARE
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powerful indication that Delaware’s understanding of the
Compact was the same as the one I assert.
IV
Our opinion in Virginia v. Maryland, 540 U. S. 56 (2003),
effectively decided this case. It rejected the very same as
sertion of a riverbed-owning State’s supervening police
power authority over constructions into the river from a
State that had been conceded riparian rights. That case in
volved two governing documents rather than (as here) only
one. The first, a 1785 compact, provided:
“ ‘The citizens of each state respectively shall have full
property in the shores of Potowmack river adjoining
their lands, with all emoluments and advantages there
unto belonging, and the privilege of making and carry
ing out wharves and other improvements, so as not to
obstruct or injure the navigation of the river.’ ” Id.,
at 62.
The second, an arbitration award of 1877 that interpreted
the earlier compact, read as follows:
“ ‘Virginia is entitled not only to full dominion over the
soil to low-water mark on the south shore of the Poto
mac, but has 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, without impeding
the navigation or otherwise interfering with the proper
use of it by Maryland, agreeably to the compact of sev
enteen hundred and eighty-five.’ ” Id., at 62–63.
We rejected Maryland’s police-power authority to forbid
Virginia’s construction of a water intake structure that ex
tended into Maryland territory, and held that “Virginia’s
right ‘to erect . . . structures connected with the shore’ is
inseparable from, and ‘necessary to,’ the ‘full enjoyment of
her riparian ownership’ of the soil to low-water mark.” Id.,

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at 72. Maryland, we observed, was “doubtless correct that
if her sovereignty over the River was well settled as of 1785,
we would apply a strong presumption against reading the
Compact as stripping her authority to regulate activities on
the River.” Id., at 67. But because the “scope of Mary
land’s sovereignty over the River was in dispute both before
and after the 1785 Compact,” no such presumption existed.
Id., at 68.
Today’s opinion, quoting the Special Master, claims that
the result in Virginia v. Maryland turned on “ ‘the unique
language of the compact and arbitration award involved in
that case.’ ” Ante, at 617 (quoting Report 64, n. 118). But
the case did not say that. And of course virtually every
written agreement or award has “unique language,” so if we
could only extend to other cases legal principles pertaining
to identical language our interpretive jurisprudence would
be limited indeed. The documents in Virginia v. Maryland
said in other words precisely what the Compact here said:
that one of the States (there, Virginia, here, New Jersey)
was given riparian rights, including the right to construct
wharves and improvements. And the holding of the case
was that those rights could be exercised free of police power
or other interference by the State owning the riverbed.
The Court contends that in Virginia v. Maryland the arbi
tration award, rather than the compact, “was definitive,” be
cause it recognized the right of Virginia “ ‘qua sovereign,’ ”
and nowhere made the right “ ‘subject to Maryland’s regula
tory authority.’ ” Ante, at 618 (quoting 540 U. S., at 72).
But Article VII of the Compact here at issue likewise spoke
of the rights of New Jersey “qua sovereign” (what else does
the “exercise [of] riparian jurisdiction” mean?) and similarly
did not make those rights subject to Delaware’s regulatory
authority. We stressed in Virginia v. Maryland that the
salient factor in the interpretation of the compact (and hence
in the arbitration award’s interpretation of the compact) was
that it was entered into (like the Compact here) by way of

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640 NEW JERSEY v. DELAWARE
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settlement of a continuing boundary dispute. “If any infer
ence at all is to be drawn from [the compact’s] silence on the
subject of regulatory authority,” we said, “it is that each
State was left to regulate the activities of her own citizens.”
Id., at 67. Virginia v. Maryland effectively decided this
case.
V
Finally, I must remark at greater length upon the Court’s
peculiar limitation upon New Jersey’s wharfing-out rights—
that it excludes wharves of “extraordinary character.” But
for that limitation, the Court’s conclusion is precisely the
same as my own: “Given the authority over riparian rights
that the 1905 Compact preserves for New Jersey, Delaware
may not impede ordinary and usual exercises of the right of
riparian owners to wharf out from New Jersey’s shore.”
Ante, at 622. The Court inexplicably concludes, however,
that the liquefied natural gas (LNG) unloading wharf at
stake in this litigation “goes well beyond the ordinary or
usual.” Ibid. Why? Because it possesses “extraordinary
character.”
To our knowledge (and apparently to the Court’s, judg
ing by its failure to cite any authority) the phrase has never
been mentioned before in any case involving limitations on
wharfing out. What in the world does it mean? Would a
pink wharf or a zig-zagged wharf qualify? Today’s opinion
itself gives the phrase no content other than to say that “Del
aware’s classification of the proposed LNG unloading termi
nal as a ‘[h]eavy industry use’ and a ‘bulk product transfer
facilit[y]’ . . . has not been, and hardly could be, challenged
as inaccurate.” Ante, at 622–623. This rationale is bizarre.
There is no reason why any designation by the Delaware
Department of Natural Resources and Environmental Con
trol would be relevant to, let alone controlling on, the mean
ing of the 1905 Compact; and no reason why New Jersey’s
authority under the 1905 Compact should turn on the state
law question whether Delaware “rationally categorize[s]” a

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wharf under its own statutes, ante, at 623, n. 21. Wharves
were commonly used for “heavy industry use” when the 1905
Compact was adopted, and their primary commercial use was
to transfer bulk cargoes. One roughly contemporaneous
book on the design and building of wharves in America in
cluded information on appropriate pavement material to en
able use of trucks on wharves, the proper method of laying
down railroad tracks, and the construction of hatch cranes
for unloading cargo. See C. Greene, Wharves and Piers:
Their Design, Construction, and Equipment 191–194, 206–
215 (1917). The Court gives no reason why the terminal’s
character as a “[h]eavy industry use” and a “bulk product
transfer facilit[y]” matters in the slightest. Indeed, the
Court does not take its state-law reason for “extraordinary
character” seriously, conceding that Delaware could not reg
ulate an identical wharf for the “bulk product transfer” of
“tofu and bean sprouts,” ante, at 623, n. 21.
Apart from the Delaware Department’s “[h]eavy industry
use” and “bulk product transfer” designations, the Court
cites, as support for its conclusion that this wharf is of “ex
traordinary character,” its own factual background section
describing the wharf. See ante, at 622–623 (citing ante, at
606–607). It is not clear which, if any, of the facts discussed
there the Court claims to be relevant, and I am forced to
speculate on what they might be.
Could it be the size of the wharf, which is 2,000 feet long,
see ante, at 606, and extends some 1,455 feet into Delaware
territory, see Brief for BP America Inc. et al. as Amici Curiae
1–2? But the Court cites not a single source for this length
limitation upon wharfing out. We did not intimate, in hold
ing in Virginia v. Maryland that Virginia could authorize
construction of a water intake pipe extending 725 feet from
its shoreline into Maryland, see 540 U. S., at 63, that the re
sult turned on the length of the pipe. As I have discussed,
the common law did establish a size limitation for wharves:
the wharf could not be extended so far as to interfere need

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lessly with the public’s “right of navigation” in navigable wa
ters. 1 Farnham § 111, at 521. Wharves constructed to ac
cess the water could “project to a distance from the shore
necessary to reach water which shall float vessels, the largest
as well as the smallest.” Id., at 522 (emphasis added). Del
aware has not claimed that the wharf in this case will inter
fere with navigation of the river, which is approximately one
mile wide at this location, see Brief for BP America Inc. et al.
as Amici Curiae 2. And the record reveals that New Jer
sey, at least, anticipated that wharves on its side of the river
could extend as far as the wharf in this case by establishing
pierhead lines in 1877 and 1916 that extended “below low
water mark at distances varying from 378 to 3,550 feet.” 1
NJ App. 135a; see also 3 id., at 369a, 376a (affidavit of Rich
ard G. Castagna). (Pierhead lines mark the permissible
“outshore limit of structures of any kind.” Greene, supra,
at 27.)
Could the fact rendering this a wharf of “extraordinary
character” be that its construction would require the dredg
ing of 1.24 million cubic yards of soil within Delaware’s terri
tory? Ante, at 606–607. This is suggested, perhaps, by the
portion of the decree which says that “Delaware acted within
the scope of its governing authority to prohibit unreasonable
uses of the . . . soil within the twelve-mile circle.” Ante, at
624; see also ante, at 607, n. 8. But no again. Although the
record contains no evidence of the dredge volumes required
to construct the wharves on the river at the time of the Com
pact’s adoption, it does show that an 1896 navigational im
provement required the dredging of 35 million cubic yards
from the Delaware River, and a 1907 dredging at Cape May
Harbor, New Jersey, removed 19.7 million cubic yards. 7
NJ App. 1224a, 1234a (affidavit of J. Richard Weggel). At
the very least, the dredging of 1.24 million cubic yards
“would have been familiar to or ascertainable by individuals
interested in riparian uses or structures at the time the
Compact was signed or ratified.” Id., at 1227a. I do not

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know what to make of the Court’s response that the in
stances of dredging that I have cited involved “public
works.” Ante, at 607, n. 8. Is that a limitation upon the
Court’s holding—only private wharves of “extraordinary
character” can be regulated by Delaware? But in fact
dredging seems to have nothing to do with the issue, since
(once again) the Court acknowledges that the same wharf for
tofu and bean sprouts would be OK.
Could the determinative fact be that the wharf would
service “[s]upertankers with capacities of up to 200,000 cubic
meters (more than 40 percent larger than any ship then car
rying natural gas),” ante, at 606; that these ships “would
pass densely populated areas” and require establishment of
“a moving safety zone [that] would restrict other vessels
3,000 feet ahead and behind, and 1,500 feet on all sides,” ante,
at 606, n. 7? This is suggested, perhaps, by the portion of
the decree which says that “Delaware acted within the scope
of its governing authority to prohibit unreasonable uses of
the river . . . within the twelve-mile circle.” Ante, at 624.
But surely not. Whatever power Delaware has to restrict
traffic on the waters of the United States (a question not
presented by this case, though one that seems not to inhibit
the decree’s blithe positing of state “authority to prohibit
unreasonable uses of the river,” ibid.), it has no bearing on
whether New Jersey can build the wharf without Dela
ware’s interference.
Could the determinative fact be that the wharf will be
used to transport liquefied natural gas, which is dangerous?
No again. The Court cites no support, and I am aware of
none, for the proposition that the common law forbade a
wharf owner to load or unload hazardous goods. At the time
of the Compact’s adoption, congressional sources reported
that the Delaware River was used to transport, among other
items, coal tar and pitch, sulfur, gunpowder, and explosives.
Annual Report of the Chief of Engineers, United States
Army, H. R. Doc. No. 22, 59th Cong., 2d Sess., 1031–1033

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(App. H) (1906) (tabulating commerce on the Delaware River
by item in 1904 and 1905). Books published some time after
the adoption of the Compact discuss the proper handling of
seaborne “dangerous goods,” including liquids such as ben
zene, petroleum, and turpentine. See J. Aeby, Dangerous
Goods (2d ed. 1922); R. MacElwee & T. Taylor, Wharf Man
agement: Stevedoring and Storage 41, 221 (1921). There
is not a shred of evidence that the parties to the Compact
understood that New Jersey and Delaware would not be
authorized to grant riparian rights for the loading and un
loading of goods that are—under some amorphous and unex
plained criteria—dangerous.
I say that none of these factors has any bearing upon
whether, at law, the wharfing out at issue here is anything
more than the usual and ordinary exercise of a riparian right.
I am not so rash as to suggest, however, that these factors
had nothing to do with the Court’s decision. After all, our
environmentally sensitive Court concedes that if New Jersey
had approved a wharf of equivalent dimensions, to accommo
date tankers of equivalent size, carrying tofu and bean
sprouts, Delaware could not have interfered. See ante, at
623, n. 21.
* * *
According to one study, construction activities on the LNG
facility in this case would have created more than 1,300 new
jobs, added $277 million to New Jersey’s gross state product,
and produced $13 million in state and local tax revenues.
J. Seneca et al., Economic Impacts of BP’s Proposed Crown
Landing LNG Terminal 65 (Apr. 2007), online at http://www.
policy.rutgers.edu/news/reports/other/BPCrownLanding.pdf
(as visited Mar. 28, 2008, and available in Clerk of Court’s
case file). Operation of the facility was projected to gener
ate 231 permanent jobs, and more than $88 million in state
and local tax revenues over a 30-year period. Ibid. Its de
livery capacity would represent 15 percent of the current
consumption of natural gas in the region. Id., at 66. In

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Scalia, J., dissenting
holding that Delaware may veto the project, the Court owes
New Jersey—not to mention an energy-starved Nation—
something more than its casual and unsupported statements
that the wharf possesses “extraordinary character” and
“goes well beyond the ordinary or usual.”
Today’s decision does not even have the excuse of achiev
ing a desirable result. If one were to design, ex ante, the
socially optimal allocation of the power to permit and forbid
wharfing out, surely that power would be lodged with the
sovereign that stands most to gain from the benefits of a
wharf, and most to lose from its environmental and other
costs. Unquestionably, that is the sovereign with jurisdic
tion over the land from which the wharf is extended. Dela
ware and New Jersey doubtless realized this when they
agreed in 1905 that each of them would have jurisdiction
over riparian rights on its own side of the river. The genius
of today’s decision is that it creates irrationality where sweet
reason once prevailed—straining mightily, against all odds,
to ensure that the power to permit or forbid “heavy industry
use” wharves in New Jersey shall rest with Delaware, which
has no interest whatever in facilitating the delivery of goods
to New Jersey, which has relatively little to lose from the
dangerous nature of those goods or the frequency and man
ner of their delivery, and which may well have an interest in
forcing the inefficient location of employment- and tax
producing wharves on its own shore. It makes no sense.
Under its decree, “[t]he Court retains jurisdiction to enter
tain such further proceedings, enter such orders, and issue
such writs as it may from time to time deem necessary or
desirable to give proper force and effect to this Decree or to
effectuate the rights of the parties.” Ante, at 624. This
could mean, I suppose, that we can anticipate a whole cate
gory of original actions in this Court that will clarify, wharf
by wharf, what is a wharf of “extraordinary character.”
(Who would have thought that such utterly indefinable and
unpredictable complexity lay hidden within the words of the

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Scalia, J., dissenting
Compact?) More likely, however, prospective builders of
“heavy industry use” wharves from the New Jersey shore—
of whatever size—will apply to Delaware and simply go else
where if rejected.
The wharf at issue in this litigation would have been
viewed as an ordinary and usual riparian use at the time
the two States entered into the 1905 Compact. Delaware
accordingly may not prohibit its construction. I respect
fully dissent from the Court’s judgment to the contrary.

Job: 552ORD Take: NOT1 Date/Time: 02-07-12 16:28:19
Reporter’s Note
The next page is purposely numbered 801. The numbers between 646
and 801 were intentionally omitted, in order to make it possible to publish
the orders with permanent page numbers, thus making the official cita
tions available upon publication of the preliminary prints of the United
States Reports.