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

1991]

INTERSTATE TRANSFERS OF WATER

759

?

it is an overview of governing federal constitutional constraints on
state water law and policy, an exploration of ways that a state may act
consistent with those constraints, and a description of the potential
benefits and burdens of particular policy options. Our purposes are to
provide a clear framework within which legislatures may choose to
operate, and to identify and describe a full panoply of constitutionally
available policy options.
While our focus is on interstate groundwater transfers, the consti-
tutional validity of a state's regulation of interstate transfers is in part
dependent on a state's regulation of intrastate uses and transfers.
Moreover, an interstate transfer of water may be structured in a way
that does not require water to physically move across state lines. Con-
sequently, successful and efficient regulation of groundwater transfers
is related to, and in part dependent on, the regulation of surface water
transfers. Therefore, we also have briefly considered the relationship
between ground water and surface water and have discussed in some
depth the relationship of intra- and inter-state legislative solutions.
This Article is written as a comprehensive whole. Each Part, how-
ever, is self-contained, with enough background information that a
user may focus on a specific question without the need to read the
entire Article. In its entirety, this Article contains a lengthy exposi-
tion of the issues to which LB 710 directed our attention as well as
background research information that we hope will aid in the drafting.
The background information includes, for example, a complete history
of the Sporhase litigation and the statute that spawned it, a discussion
of the legal issues surrounding water transfers, a discussion of legisla-
tion enacted in other states dealing with out-of-state water transfers,
and detailed analyses of important cases decided by the Supreme
Court of the United States.

II. SPORHASE'V. NEBRASKA: AN ANALYSIS OF THE CASE
AND NEBRASKA'S RESPONSE TO IT

A. The Law Prior to Sporhase

Historically, states assumed that they could regulate interstate
commerce in natural resources because they owned those resources.
The leading early Supreme Court decision was Geer "V. Connecticut.6
Geer upheld the constitutionality of a state law that prohibited inter-
state transfer of game birds killed within Connecticut. The Geer
Court reasoned that wildlife was the common property of all citizens
of a state and, therefore, Connecticut owned game birds "as a trust for
the benefit of the people."7 As owner of the birds, the state could val-
idly prohibit or condition their capture. The Geer Court viewed the

6. 161 U.S. 519 (1896), overruled by Hugbes v. Oklahoma, 441 U.S. 322 (1979).
7. 161 U.S. 519, 529 (1896).

HeinOnline -- 70 Neb. L. Rev. 759 1991