PUB00159

• Year: 1991
• Title: Interstate Transfers of Water: State Options After Sporhase
• CWCB Section: Administration
• Author: Richard S Harsberger
• Description: Interstate Transfers of Water: State Options After Sporhase
• Publications - Doc Type: Historical

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758

NEBRASKA LAW REVIEW

[Vol. 70:754

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Board did not address the federal constitutional dimensions of water
transfer issues.
In 1989 the Nebraska Unicameral enacted LB 710:
The Legislature acknowledges the study on water transfers prepared by
the Water Management Board but finds that the statutory mandate for the
study did not require a legal analysis of the United States Supreme Court's
decision in Nebraska ex reI. Douglas v. Sporhase, 458 U.S. 941 (1982), or a
policy analysis of the water management alternatives constitutionally avail-
able to states under that decision. The Legislature fmds that a consideration
of such alternatives is necessary before legislation is enacted regulating water
transfers and exports.
This Article essentially reproduces the longer of two versions of a
report prepared by the College of Law for the Nebraska Legislature
pursuant to LB 710. Its focus is on transfers of groundwater out-of-
state and the constitutional options available to Nebraska or other
states to regulate such transfers in light of the decision of the United
States Supreme Court in Sporhase 'V. Nebraska e:J: rel. Douglas.3 In
Sporhase, the Supreme Court held that water is an article of interstate
commerce and that a Nebraska statute violated the Commerce Clause
of the Constitution of the United States because its effect was to pro-
hibit the transfer of water to other states. Put as succinctly as possi-
ble, Sporhase means that state laws, even regarding natural resources,
generally will be invalidated if they discriminate in favor of state resi-
dents or interests.4
Prohibition of state discrimination against out-of-state interests is
the core concept of Commerce Clause jurisprudence. It has been the
prevailing interpretation of the Commerce Clause for nearly 200
years, and it is highly unlikely that this prevailing interpretation will
change substantially when membership on the Supreme Court
changes.5
The Sporhase Court, however, also recognized that a state retains a
great degree of regulatory control over natural resources, and particu-
larly over water. For purposes of this Article, then, the paramount
question that we address is the way in which Nebraska may exercise
regulatory control over decisions affecting the management, export,
and transfer of its groundwater consistent with the Commerce Clause
and other constitutional constraints.
This Article is neither intended nor designed to return to matters
dealt with in the 1988 Water Management Report. Nor is it intended)to advocate particular policy choices for legislative adoption. Rather,

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3. 458 U.S. 941 (1982).
4. See Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333 (1977).
The Court's aversion to such discrimination extends to schemes that are not pri-
marily even economic. See Philadelphia v. New Jersey, 437 U.S. 617 (1978).
5. Matthews, The Supreme Court, the Commerce Clause, and Resources, 12 ENVTL.
MGMT. 413 (1988).

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HeinOnline -- 70 Neb. L. Rev. 758 1991