Commerce Clause Limits States' Ability to Stop Groundwater Exports: Supreme Court Overturns Nebraska Reciprocity Rule

The Supreme Court's recent decision in Sporhase v. Nebraska,¹ although a narrow ruling as applied to Nebraska, could nonetheless significantly disrupt groundwater law in other states. In addition, while it reaffirms the leadership of states in water resources management, it makes clear that there are no constitutional obstacles to federal preemption of the increasingly vital and difficult job of groundwater management. Control over water, long a life and death issue in the semiarid states of the West,² is rapidly becoming a problem of pressing national concern.³ Groundwater supplies throughout the west are rapidly diminishing. For example, the Ogallala aquifer, which underlies the dispute giving rise to the Court's recent decision, is the nation's largest underground reservoir stretching from Texas to South Dakota. It has been depleting in many areas at the rate of three feet per year,⁴ and some predict that it will disappear within 40 years.⁵ The Ogallala and other groundwater supplies are increasingly under pressure from the needs of growing cities, from water-intensive energy development projects such as power plants and coal slurry pipelines, and from agriculture.⁶ Those seeking increased water supplies for such uses often must seek to import it from relatively distant areas of surplus. Many states, fearing that demands from outside their borders will prevent them from ensuring adequate supplies of water for their own citizens, have passed legislation to prohibit or limit interstate transfers of groundwater. At present, 14 states plus the District of Columbia have adopted such legislation.⁷ Not surprisingly, as the competition for limited supplies becomes more intense, some of these statutes have been attacked as unconstitutional burdens on interstate commerce.

In Sporhase, the first of these challenges to reach the Supreme Court, the Court rules, in a seven to two decision, that groundwater is an article of commerce and thus subject to both the restraints on state action and the potential for federal control created by the Commerce Clause. While it upheld Nebraska's conditions on interstate transfers, which parallel limits on intrastate use and are clearly designed to conserve diminishing groundwater supplies, the Court invalidated that part of the statute that prohibits transfers to states that do not allow their water to be transferred to Nebraska.Two dissenters, probably not coincidentally two westerners on the Court, disagreed not so much with the result, though they apparently would have approved the entire statute, but most strongly with the majority's reasoning and the limited weight it gave to the states' traditional control over their own water resources.

Though the Sporhase decision upholds most of the Nebraska restrictions on groundwater exports, it triggered an uproar in the western states. The majority indicated that Congress could step in to regulate groundwater use if it chose to do so. This was not the most controversial aspect of the ruling, however. The dissent found it an unnecessary digression, but agreed that Congress could regulate groundwater under the Commerce Clause. More troublesome is that the Court established a difficult Commerce Clause test for state bans on groundwater exports, a test which many current state statutes seem certain to fail. While it may be possible to correct the deficiencies legislatively, that is not yet clear and the decision injects uncertainty into the law at a time when several major interstate fights over groundwater resources are raging.⁸

State Groundwater Law

The availability and demand for water, geological conditions, and local needs and uses vary dramatically from region to region and state to state. At a result, a tradition of federal deference to state control of water resources has evolved. The states have developed diverse and sometimes conflicting legal doctrines for allocating water. The right to use surface waters is based either on the riparian rights doctrine,⁹ the prior appropriation doctrine,¹⁰ or some combination of these common law doctrines overlayed with statutory rules. The law governing the right to use groundwater is even more varied, and less well established. In some states, acquifers are treated as "underground streams" and the law of surface water is applied. While most western states have statutes applying the rule of prior appropriation, other states have adopted either the rule of absolute ownership based on "capture," of [12 ELR 10084] reasonable use, or of correlative rights.¹¹ These three doctrines base the right to use groundwater on owning land overlying the groundwater reservior.

Nebraska groundwater law, which developed somewhat piecemeal as conflicts arose during periods of drought, is based on a combination of the reasonable use and the correlative rights doctrines, modified by statute. The Nebraska Constitution declares water to be "a natural want" and "dedicated to the people of the State for beneficial purposes…."¹² Therefore, in Nebraska there is no private right or title to the water itself; there is only a right of use. Furthermore, under the reasonable use doctrine, the water withdrawn may be applied only to the overlying land. Its use is not restricted if it is reasonable, i.e., it must be reasonable in relation to the use of the overlying land and must not be wasteful. Each landowner using water from the same groundwater source has a right to reasonable use but where conflicts arise among those using water for different purposes, the legislature has established statutory preferences. And where conflicts arise among users applying the water to the same purpose, Nebraska applies the correlative rights system, which requires the sharing of groundwater proportionately. The law is further complicated by legislation authorizing regulationsby the Department of Water Resources (DWR) and establishing groundwater control areas.¹³

The DWR administers several programs concerning well registration, well abandonment, runoff control, groundwater withdrawals, and other matters.

Because of the requirement that water be used on the overlying land, groundwater transfers to other land is generally prohibited. However, the state has by statute allowed for intrastate groundwater transfers by municipal governments.¹⁴ Interstate transfers of groundwater to an adjoining state are prohibited unless a permit is obtained from the DWR.¹⁵ An export permit may be issued if the Department finds that the proposed groundwater withdrawal is (1) reasonable, (2) not contrary to the conservation and use of groundwater, and (3) not otherwise detrimental to the public interest. In addition, the state into which the groundwater is to be transferred must not prohibit groundwater transfers to Nebraska.¹⁶ Except for the reciprocity provisions, this permitting requirement is equivalent to the reasonable use doctrine applied to instate users, i.e., reasonable use without waste or ill effect on other users.

The Nebraska statute's restrictions on groundwater exports are, on their face, less stringent than those of a number of other states. The New mexico statute, for example, bans virtually all exports of groundwater, simply stating that "[n]o person shall withdraw water from any underground source in New Mexico for use in any other state by drilling a well in New Mexico and transporting the water outside the state…."¹⁷ The only exception to this rule is for relatively small withdrawals transported by tank truck and used for oil or gas exploration or drilling.¹⁸ Colorado law prohibits exports of groundwater, stating unequivocally that "it is unlawful for any person to … transport … any of the groundwaters of this state … into any other state for use therein."¹⁹ Thus, a ruling that Nebraska's limits on exports violated the Commerce Clause would seem certain to overturn such provisions as well.

Nebraska High Court Upholds Statute

Nebraska's regulation of interstate transport of groundwater was put to the constitutional test. The facts in the case highlight the acute water shortage problem in the western states and the depletion of the Ogallala aquifer in particular. Appellants, who own adjacent tracts of land on both sides of the Nebraska-Colorado border, initially applied for a permit in Colorado to irrigate their Colorado tract. The Colorado Groundwater Commission denied the permit, concluding that the Ogallala in that area was already overused and that additional withdrawals would lead to an unacceptable decline in the water table. Appellants began pumping water from Nebraska to irrigate their Colorado tract, without applying for the required Nebraska permit.²⁰ In state court, Nebraska successfully sought to enjoin appellants from transferring groundwater to Colorado without the permit. The Nebraska Supreme Court upheld the lower court's injunction, ruling that the Nebraska statute does not violate the Commerce Clause of the U.S. Constitution.

In State v. Sporhase,²¹ the state's high court reasoned that since under Nebraska law, water is the property of the public and not an article of commerce, the Commerce Clause does not apply. The court emphasized that [12 ELR 10085] Nebraska, which follows a modified version of the "American rule of reasonable use," does not allow the free exchange and transfer in commerce of groundwater. Other states, for example Texas, follow the capture rule, which grants in the overlying landowner absolute ownership of and right to sell subterranean water once brought to the surface. Thus, the court easily distinguished the district court's decision in City of Altus, Oklahoma v. Carr,²² affirmed by the Supreme Court without opinion, which held that a Texas statute forbidding interstate transfers of water without legislative permission placed an unconstitutional burden on interstate commerce. Unlike Nebraska's water law, Texas groundwater is considered to be "an article of commerce, subject to the commands of the commerce clause of the U.S. Constitution."²³

Continuing with this reasoning, the court had no trouble distinguishing other United States Supreme Court cases limiting the state's ability to restrict interstate trade in other natural resources. Unlike Nebraska groundwater, such resources as natural gas²⁴ and minnows²⁵ have historically been market items and therefore subject to the Commerce Clause restraints.

In a dissenting and concurring opinion, the Chief Justice found fault with the part of the statute that later proved to be its undoing. He agreed that the state legislature may regulate the interstate transfer of groundwater without violating the Commerce Clause. However, he would have invalidated the reciprocity provision, arguing that the statute would be valid if it allowed permits only if the water use was not contrary to the conservation of water, but to prohibit interstate transfers absolutely without regard to need or availability is unconstitutional.

Sporhase Reversed

The appellants in Sporhase appealed again, to the United States Supreme Court. In a seven-to-two decision written by Justice Stevens, the Court upheld in part and overturned in part the decision of the Nebraska Supreme Court. In Sporhase v. Nebraska,²⁶ the majority addressed three questions. It first considered whether groundwater is an article of commerce. Apparently the Court viewed this as a threshold question for determining whether a burden-on-commerce analysis could be made. It next considered whether the Nebraska restriction on the interstate transfer of groundwater imposes an impermissible burden on commerce. Finally, the Court examined whether Congress had authorized the states to engage in groundwater regulation that would otherwise be impermissible.

The Court first concluded that groundwater is an article of commerce. Initially, it noted that the "fiction" of state ownership of natural resources was finally erased by Hughes v. Oklahoma.²⁷ Second, it concluded that groundwater is not distinct from other items in commerce, even though it is essential to human health. It is used primarily for agriculture, which is of central importance in interstate and international commerce.The multistate character of the Ogallala aquifer confirms the view that there is significant federal interest in groundwater. Finally, the Court emphatically noted that to hold that groundwater is not an article of commerce would limit the federal government's ability to regulate the serious interstate problem of excessive withdrawals if it chose to do so.

Having concluded that groundwater is an article of commerce, in spite of Nebraska's efforts to curtail trade in it, the Court launched into a Pike v. Bruce Church²⁸ analysis to determine whether the Nebraska statute constituted an impermissible burden on interstate commerce. The first stage of the test is whether the statute reasonably addresses a legitimate local public interest and imposes restrictions evenhandedly on intrastate and interstate commerce. If it passes this threshold, then the law's burden on interstate commerce must be weighed against the local benefits it provides. Only where the burden is "clearly excessive" does the statute fail the test.

Applying the Pike test, the Court found that part of the Nebraska statute passes but part does not. The first three conditions on exports, that the withdrawal is reasonable, not contrary to conservation, and in the public interest,²⁹ reasonably address legitimate state interests in water conservation. Although these provisions apply to interstate transfers alone, they are not discriminatory because they are equivalent to conditions placed upon intrastate transport and use.

In its burden on commerce analysis, the Court was unable "to condemn as unreasonable measures taken by the State" to conserve groundwater,³⁰ which it had earlier rejected as a rationale for avoiding the Commerce Clause entirely. As part of its balancing analysis the Court noted that the state's efforts to conserve groundwater are due special deference in the absence of a contrary view expressed by Congress. First, because the state's power to regulate water during shortages is at the core of its police power. Second, because there is a "legal expectation" of state primacy resulting from the deference traditionally paid by Congress to states in water resource issues. Third, because Nebraska's claim of ownership, while it does not take the water out of commerce, does justify some preference for Nebraskans in its use. Finally, because of past state conservation efforts, Nebraska groundwater has some characteristics of a public good. With these weighty considerations on the scales, it is not surprising that the Court concluded that "[a] facial examination of the first three conditions … does not, therefore, indicate that they impermissibly burden interstate commerce."³¹

Turning to the reciprocity condition, the Court's analysis did not reach the balancing stage. It found that the provision "operates as an explicit barrier to commerce."³² Thus, the burden it placed on interstate commerce was not "only incidental." This alone did not disqualify [12 ELR 10086] the provision but, to survive, the state had first to demonstrate that there was a close fit between the means and ends. The court found that the reciprocity condition failed this initial test because "there is no evidence that this restriction is narrowly tailored to the conservation and preservation rationale" of the statute.³³

Having overturned the reciprocity provision, the Court then outlined in detail a situation in which a "demonstrably arid" state might be able to prohibit the export of its water. It would have to demonstrate "a close means-end relationship between even a total ban on the exportation of water and a purpose to conserve and preserve water."³⁴

Finally the majority discarded the state's argument that Congress had authorized such otherwise impermissible burdens on commerce in groundwater through its deference to state water law in no less than 37 statutes and its acquiescence to interstate compacts allocating water resources. It held that absent "expressly stated" permission of Congress, the requirements of the Commerce Clause are presumed to be in effect; but there was no such permission in this case.³⁵

The dissenting Justices Rehnquist and O'Connor disagreed with the majority's analysis and result. In their view, the Court unnecessarily delved into the question whether the Commerce Clause authorizes Congress to legislate with respect to groundwater withdrawals in the states. They unnecessarily found that groundwater is an article of commerce but, as the cases demonstrate, Congress may regulate under the Commerce Clause even where no articles of commerce are directly involved. If groundwater withdrawals have a substantial economic effect on interstate commerce, "Congress arguably could regulate groundwater overdraft, even if groundwater is not an 'article of commerce' itself."³⁶

On the actual questions presented in the case, whether Nebraska's statute runs afoul of the unexercised authority of Congress to regulate interstate commerce, the dissenters thought that the Court went too far in undertaking a traditional Commerce Clause analysis. In their view, prior Supreme Court decisions have established the state's quasi-sovereign authority over natural resources. While a state may not discriminate against interstate commerce, it still may regulate so as to preclude a natural resource from being an article of commerce. The dissenters pointed out that in Hughes, and other natural resource cases, the state permitted intrastate commerce in natural resources, but not interstate commerce. But in Nebraska, the state does not allow "any 'commerce,' intrastate or interstate, to exist in [groundwater]." The dissenters concluded without discussing the reciprocity provision that since

Nebraska recognizes only a limited right to use groundwater on land owned by the appropriator, it cannot be said that "commerce" in groundwater exists as far as Nebraska is concerned. Therefore, it cannot be said that [the Nebraska statute] either discriminates against, or "burdens," interstate commerce.³⁷

The Commerce Clause and Water Resources

The Court's decision in Sporhase should not have come as a surprise to those following the Court's previous Commerce Clause decisions involving state regulation of natural resources. While a number of early decisions upheld state efforts to reserve natural resources for their citizens,³⁸ the Court has in more recent years rejected discriminatory state measures limiting exports of natural resources.³⁹

The Supreme Court's early wildlife decisions offered Nebraska the best argument to avoid the reach of the Commerce Clause. And Justice Rehnquist agreed that because of the state's special treatment of groundwater it is not an article of commerce. However, Justice Stevens' opinion erased any doubt that the public ownership theory of natural resources first accepted in Geer v. Connecticut⁴⁰ in 1896 retains any life when applied to water resources. Geer, which sustained a Connecticut ban on the interstate transportation of game birds captured in that state, was expressly overruled three years ago in Hughes v. Oklahoma,⁴¹ which rejected a ban on the interstate transport of minnows caught in the state. The Court in Hughes characterized the public ownership theory as a "legal fiction" because, even if a state does not allow private ownership and commerce to exist in a resource, its regulation may still have an impact on interstate commerce. Hughes, in overruling Geer, put state regulation of wildlife on the same footing as state regulation of most other natural resources. Sporhase, in keeping with Hughes, puts state regulation of groundwater on the same footing as state regulation of all other natural resources. They are all now governed by the same Commerce Clause analysis.

Although Justice Rehnquist was concerned that Justice Stevens did not "appropriately recognize the traditional authority of a State over resources within its boundaries."⁴² the Court did not wash away all state control over groundwater. To the contrary, Sporhase reflects the substantial deference to state regulation of natural resources the Supreme Court has demonstrated, in contrast to its more vigorous application of the Commerce Clause to state regulation of retail trade and industry. While the Court found that the reciprocity provision "operates as an explicit barrier to commerce between the two States," it found a significant place for special deference to state control in its Commerce Clause analysis. Nor did the dissenters argue that state control was so complete that the [12 ELR 10087] Commerce Clause is without effect. With somewhat strained reasoning they indicated that the states could regulate groundwater out of commerce, but only in ways that were consistent with the Commerce Clause.As a result, they would have imposed the same initial test as the majority — whether the state imposes substantially the same restrictions on intrastate commerce as it does on interstate commerce. The difference is that they would have stopped there, while the majority went on to determine whether nondiscriminatory provisions nonetheless unduly burdened interstate commerce. Still, given the deference the majority showed to state groundwater regulation, it is unlikely that their test would come out differently from that of the dissent in many instances.

Where the two opinions diverged in result was on the reciprocity provision, with the majority rejecting it and the dissent not discussing it, but apparently approving it. Interestingly, the majority found it discriminatory using essentially the same analysis the dissent would have undertaken. The dissenters gave no explanation of their conclusion that the reciprocity provision is valid, leaving a hole in the support for their position. While they said that state regulation of groundwater must not discriminate against interstate commerce, they would uphold, without explanation, a provision that the majority argues rather persuasively is discriminatory.

Another Commerce Clause issue brought into the case by the majority is the extent to which Congress's regulatory power extends to groundwater. The dissenters argue rather convincingly that this was an unnecessary detour. Yet the dictum stands out as a clear message to Congress, almost an invitation, that it will find the constitutional road clear should it decide to address the problem of groundwater conservation and management. Perhaps, given the obvious political obstacles to federal preemption of water resource management, the court's message was intended for the states, but in any event the length of the detour taken suggests that the majority felt a strong need that the message be delivered.

Impacts on State Groundwater Law

While Sporhase stands for only a limited intrusion of the Commerce Clause into the sacrosanct state domain of water resource management, it may have more serious short-term impacts on state law. Ever since the Court's decision to take jurisdiction over Sporhase, state water resource managers have feared that a decision against Nebraska would have an extremely adverse impact upon states' efforts to protect their groundwater resources and could severely disrupt regulation of surface water use as well. They supposed that if the Commerce Clause precludes state efforts to regulate interstate transfers of groundwater then logically it also would disrupt state regulation of surface water transfers. Such a decision would reverse the judicial and congressional recognition of states' authority over water resources. The legality of equitable apportionment decrees, which resolve disputes between states over shared water, would be suspect.

The narrow decision, which will probably not have much effect on the application of Nebraska law, did much to alleviate those fears. In upholding much of Nebraska's statute the Court went to great lengths to defer to the states' greater ability to manage their groundwater and to acknowledge the history of congressional deference to state water law. It even explained how a state can preserve a ban by demonstrating that conditions on groundwater transfers support a legitimate state interest in conservation of diminishing groundwater supplies. States which impose strict withdrawal and use restrictions on their own citizens because of the urgent need to conserve ever dwindling supplies of groundwater will not have much difficulty providing support for their bans. However, Sporhase appears to render unconstitutional the more stringent bans on interstate transfer of groundwater found in other state statutes which are not supported by a need for conservation. For example, a state like New Mexico, which bans virtually all interstate transfers, but does not, at least on the face of its statute, impose strict conservation-oriented limits on domestic use, may have to rewrite its law and restrict its citizens' use of groundwater in order to limit exports.

Given the pendency of the challenge to New Mexico's ban and the threat of the export of large quantities of that state's groundwater,⁴³ Sporhase could prove to be disruptive in the short run. It seems virtually certain that the export ban will be found unconstitutional in light of Sporhase. This should not, however, immediately open the tap for exports of New Mexico water to El Paso or for exports from other states for uses like coal slurry pipelines. The Sporhase court's recognition of the continuing vital state interest in its groundwater resources should provide New Mexico with a convincing rationale for an injunction against the transfer until it has an opportunity to amend its statute to conform to the Supreme Court's opinion. Whether New Mexico and other states can keep the tap closed to exports may in the long run depend on whether they can demonstrate that the exports are from water-short areas or will otherwise jeopardize state efforts to conserve water, demonstrations that may not be easy to make.⁴⁴

The Editors.

1. 12 ELR 20749 (U.S. July 2, 1982).

2. See Territory v. Drennan, 1 Mont. 41 (1868).

3. See generally, Golden, The OPEC of the Midwest, TIME, Aug. 2, 1982, at80.

4. K. Sheets, Water, Will We Have Enough to Go Around?, U.S. NEWS & WORLD REPORT, June 29, 1981, at 35.

5. Id.

6. Agriculture remains the nation's largest water consumer, accounting for 83% of total use. See SOIL CONSERVATION SERVICE, U.S. DEPARTMENT OF AGRICULTURE, AMERICA'S SOIL AND WATER: CONDITIONS AND TRENDS 24 (1980).

7. The statutes include: ALA. CODE. tit. 37, § 393 (1958); COLO. REV. STAT. ANN. § 148-1-1 (1963); D.C. CODE ANN. § 43-1529 (1967); IDAHO CODE § 42-408 (1948); MONT. CODE ANN. § 89-846 (1947); NEB. REV. STAT. § 46-233.01 (1943); NEV. REV. STAT. §§ 533.515, 533.520 (1967); N.J. STAT. ANN. § 58:31 (1966); N.M. STAT. ANN. § 75-11-20 (1953); N.Y. CONSERV. L. § 452 (McKinney 1967); OR. REV. STAT. § 537.810 (1965); R.I. GEN. LAWS § 46-15-9 (Supp. 1968); TEX. REV. CIV. STAT. ANN. art. 7477b, § 2 (Supp. 1968); WASH. REV. CODE ANN. §§ 90.03.300, 90.16.110, 90.16.120 (1962); WYO. STAT. §§ 41-151 (1957), 41-1.4 (Supp. 1969).

8. For example, in El Paso v. Reynolds, No. 80-730-HB (D.N.M., filed Sept. 5, 1980, trial on the merits commenced Jan. 11, 1982), a pending case in the federal district court in New Mexico, El Paso seeks to invalidate New Mexico's ban on exports of groundwater to make way for massive transfers from New Mexico to support the city's continued growth. The court reportedly has been awaiting the Supreme Court's decision in Sporhase.

9. Under the doctrine of riparian water rights, water belongs to the owner of the land adjacent to the stream. The owner may use the water but must return it to the stream undiminished in quality and quantity for the benefit of downstream riparian owners. See generally, TRELEASE, WATER LAW (2d ed. 1974).

10. Under the modern version of the prior appropriation doctrine, water rights are acquired by application to a state water administrator; earlier applicants have priority over later applicants in times of shortage. Id.

11. Under the rule of capture followed in Texas, every landowner has the right to pump as much groundwater as he or she can without regard to the rights of others. See City of Altus v. Carr, 255 F. Supp. 828 (W.D. Tex. 1966); aff'd per curiam 385 U.S. 35 (1966). Under the reasonable use doctrine, the landowner may make reasonable groundwater withdrawals, i.e., the use must be reasonable in relation to the use of the overlying land and not wasteful. Under the correlative rights doctrine, users may not harm the use by other local overlying landowners, and if groundwater mining is occurring, each may only use a proportionate "safe yield" of the supply.

12. NEB. CONST. art. XV, § 4.

13. See NEB. REV. STAT. § 46-666 (Cum. Supp. 1980). See generally, Aiken, Nebraska Ground Water Law and Administration, 59 NEB. L. REV. 917 (1980).

14. NEB. REV. STAT. §§ 46-634 to -650 (Reissue 1978 & Cum. Supp. 1980). The law regarding interbasin transfers of surface water is governed by Little Blue Natural Resources District v. Lower Platte North Natural Resources District, 206 Neb. 535, 294 N.W.2d 598, 10 ELR 20796 (1980), which held that unappropriated surface water could be transferred from one river basin to another except when contrary to the public interest.

15. NEB. REV. STAT. § 46-613.01 (Reissue 1978).

16. Id.

17. N.M. STAT. ANN. § 72-12-19 (1978).

18. Id.

19. COLO. REV. STAT. § 37-90-136 (1973). Colorado recently revised the statute governing surface water to allow exports to neighboring states for agricultural use by persons owning adjacent agricultural land in Colorado, with the permission of the state legislature (which is directed to consider whether the recipient state allows reciprocal rights) and the state engineer. COLO. REV. STAT. § 37-81-101 (1981 Cum. Supp.)

20. It is likely that the Nebraska DWR would have rejected the permit application for the same conservation reasons cited by the Colorado Groundwater Commission. Moreover, as the Supreme Court noted, the permit would have been denied for lack of reciprocity from Colorado. 12 ELR at 20749 n.2.

21. 208 Neb. 703, 12 ELR 20246 (1981).

22. 235 F. Supp. 828 (W.D. Tex.) aff'd per curiam, 385 U.S. 35 (1966).

23. State v. Sporhase, 208 Neb. at 704, 12 ELR at 20248.

24. West v. Kansas Natural Gas Co., 221 U.S. 229 (1911).

25. Hughes v. Oklahoma, 441 U.S. 322, 9 ELR 20360 (1979).

26. 12 ELR 20749 (U.S. July 2, 1982).

27. 441 U.S. 322, 9 ELR 20360 (1979).

28. 397 U.S. 137 (1970).

29. NEB. REV. STAT. § 46-613.01 (Reissue 1978).

30. 12 ELR at 20752.

31. 12 ELR at 20753.

32. Id.

33. Id.

34. Id.

35. 12 ELR at 20753.

36. 12 ELR at 20754.

37. 12 ELR at 20755.

38. Pennsylvania v. West Virginia, 262 U.S. 553 (1923); The Abby Dodge, 223 U.S. 166 (1912); West v. Kansas Natural Gas Co., 221 U.S. 229 (1910); Hudson County Water Co. v. McCarter, 209 U.S. 349 (1908); Geer v. Connecticut, 161 U.S. 519 (1896).

39. Hughes v. Oklahoma, 441 U.S. 322, 9 ELR 20360 (1979); Philadelphia v. New Jersey, 437 U.S. 617, 8 ELR 20540 (1978); Douglas v. Seacoast Products, Inc., 431 U.S. 265, 7 ELR 20442 (1977); City of Altus v. Carr, 255 F. Supp. 828 (W.D. Tex.), aff'd per curiam, 385 U.S. 35 (1966). But see Baldwin v. Fish and Game Commission, 436 U.S. 371, 8 ELR 20425 (1978) (upholding Montana's differential licensing fee structure for nonresidential elk hunters under the Privileges and Immunities Clause not the Commerce Clause).

40. 161 U.S. 519 (1896).

41. 441 U.S. 322, 9 ELR 20360 (1979).

42. 12 ELR at 20754.

43. See note 8, supra.

44. In the pending litigation New Mexico argued that, although the proposed exports do not require use of water which has been appropriated, the water is in effect surplus; the withdrawals will indirectly cause the loss of fully appropriated surface waters. See Brief of Amicus Curiae New Mexico, Sporhase v. Nebraska, 12 ELR 20749 (U.S. July 2, 1982), at 3 n.3.