Protecting the state's groundwater from interstate exportation: antiexportation statutes and the Sporhase case

American state legislatures have occasionally sought to protect natural resources from export to other states, and these restrictions have been fought in court.19 In 1967, Nebraska enacted a statute regulating the movement of groundwater out of state (Nebraska Revised Statutes, 1978, §46-613.01). It provided that groundwater could be withdrawn for use in another state if the Director of Water Resources granted a permit after finding that the withdrawal was 'reasonable, . . . not contrary to the conservation and use of ground water, and . . . not otherwise detrimental to the public welfare' (Nebraska Revised Statutes, 1978, §46-613.01). Such withdrawals were prohibited outright, however, unless the destination state granted a 'reciprocal right to withdraw and transport ground water from that state' to Nebraska (Nebraska Revised Statutes, 1978, §46-613.01).

The case of Sporhase v. Nebraska involved a farmer who owned contiguous tracts of land in Nebraska and Colorado. He irrigated both tracts from his Nebraska well without obtaining the required permit. Nebraska sought an injunction on the basis that Colorado totally banned groundwater exports and thus could not reciprocate as required by the Nebraska statute. The state was successful in the Nebraska courts. The US Supreme Court reversed the Nebraska court's decision. The Court based the decision on the Commerce Clause of the US Constitution, which gives Congress the power to regulate interstate commerce.

The case involves what is commonly called the 'negative Commerce Clause' because, while Congress has the power to enact relevant legislation dealing with the interstate movement of groundwater, it had not done so. The Court first held that water is an 'article of commerce', thus implicating the Commerce Clause. The Court then noted that 'the exercise of unexercised federal regulatory power does not foreclose state regulation of its water resources' (Sporhase v. Nebraska, 1982, p. 954), as long as the statute 'regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental' (Sporhase v. Nebraska, 1982, p. 954).20 The Court also found that the first three aspects of the statute (it must be reasonable, not contrary to conservation and not detrimental to the public welfare) were permissible, but that the reciprocity clause was unconstitutional as being too broad a restriction:

Even though the supply of water in a particular well may be abundant, or perhaps even excessive, and even though the most beneficial use of that water might be in another State, such water may not be shipped into a neighboring State that does not permit its water to be used in Nebraska.

(Sporhase v. Nebraska, 1982, p. 958) A reciprocity clause might be permissible only if it could be shown that the State as a whole suffers a water shortage, that the intrastate transportation of water from areas of abundance to areas of shortage is feasible regardless of distance, and that the importation of water from adjoining States would roughly compensate for any exportation to those States.

The Court further stated that an arid state might justify a complete ban on exports by demonstrating a close relationship between the ban and conservation. The arid state of New Mexico, for example, might justify a ban if it could show that the very water it was prohibiting from export could be used to alleviate water shortages in New Mexico by piping water to those areas.

In 1984, following the Sporhase case, Nebraska amended the statute to remove the reciprocity language (Nebraska Revised Statutes, 2005, §46-613.01), but the amended statute retained the protection of the health, safety and welfare of its citizens.21

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