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<br />year moratorium on all applications (both pending and future) to appropriate groun water . <br />hydrologically connected to the Rio Grande below Elephant Butte Reservoir. The were <br />the first such statutes to be fashioned in conscious response to the holding of Spo hase. <br />See Richard S. Harnsberger, et aI., Interstate Transfers of Water: State Option After <br />Sporhase, 70 Nebraska L. Rev. 754, 823 (1991). The former enacted N.M.Stat. nn. 9 <br />72-12B-l, which EI Paso challenged. N.M.stat.Ann. 9 72-12B-l mandated that th New <br />Mexico State Engineer make sure any export of New Mexico water "would not mpair <br />existing water rights, is not contrary to the conservation of water within the state and is <br />not otherwise detrimental to the public welfare of the citizens of New M xico." <br />N.M.Stat.Ann. 9 72-12B-l(C). The EI Paso 11 court found, at least provisional}, , that <br />N.M.Stat.Ann. 9 72-12B-1 was not unconstitutional: <br /> <br />On its face, S.B. 295 appears to apply the conservation and public welfare <br />criteria evenhandedly, at least to new appropriations. As amended, 9 72- <br />12-3 E, which deals with applications for new in-state appropriations of <br />ground water from declared basins, now mirrors the requirements for <br />approval of out-of-state appropriations in 9 72-12B-IC. Under both 9 72- <br />12-3 E and 9 72-12B-l C the State Engineer must deny applications for <br />new in-state and out-of-state appropriations if the proposed use is <br />"contrary to the conservation of water within the state [ or] detrimental to <br />the public welfare of the state." <br /> <br />EI Paso 11, 597 F.Supp. at 698-99. EI Paso insisted that the phrase "not ot erwise <br />detrimental to the public welfare of the citizens of New Mexico" (emphasis addetl) was . <br />inherently discriminatory. See id. at 699. However, the EI Paso court fou d that <br />Sporhase had allowed a state to protect its own citizens' welfare: <br /> <br />A state may not limit water exports merely to protect local economic <br />interests. . . . Other than excluding economic interests, however, the Court <br />did not limit the public welfare interests a state may protect by regulating <br />interstate commerce in ground water. <br /> <br />EI Paso 11, 597 F.Supp. at 700. When a non-protectionist statute's implement tion of <br />public welfare concerns nonetheless implicates economic interests, "the resulting burden <br />on interstate commerce must be weighed against the putative, non-economi local <br />benefits." ld. at 701 (citing Pike v. Bruce Church, 397 U.S. at 142). <br /> <br />The EI Paso 11 court then remarked that "[a] state may favor its own citizens in <br />times and places of shortage." EI Paso 11,597 F.Supp. at 701 (citing Sporhase, 4 8 U.S. <br />at 956-57). However, its discussion of this issue did little to clear up the unc rtainty <br />regarding the meaning of "shortage" just identfied in Sporhase. The EI Paso 1 court <br />wrote that, on the one hand, this <br /> <br />[o]f course . . . does not mean that a state may limit or bar exports simpl <br />because it anticipates that one day there will not be enough water to mee <br /> <br /> <br />. <br /> <br />10 <br />