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<br />.. <br />. .. <br /> <br />. <br /> <br />a State's quasi-sovereign interest in the flow of surface and subterranean <br />water within its borders was of the same magnitude as its interest in pure <br />air or healthy forests. <br />In my view, these cases appropriately recognize the traditional <br />authority of a State over resources within its boundaries which are <br />essential not only to the well-being but often to the very lives of its <br />citizens. In the exercise of this authority, a State may so regulate a natural <br />resource as to preclude that resource from attaining the status of an "article <br />of commerce" for the purposes of the negative impact of the Commerce <br />Clause. It is difficult, if not impossible, to conclude that "commerce" <br />exists in an item that cannot be reduced to possession under state law and <br />in which the State recognizes only a usufructuary right. "Commerce" <br />cannot exist in a natural resource that cannot be sold, rented, traded, or <br />transferred, but only used. <br /> <br />Sporhase, 458 U.S. at 963. <br /> <br />Recognizing that Sporhase is not an unqualified bar to states exercIsmg <br />considerable control over their water law regimes, states can still think in terms of, for <br />instance, making the preservation of agricultural communities a concern to be applied to <br />any water transfer from farming to municipal use. See In re Sleeper, Rio Arriba County <br />Cause No. RA 84-53 (c). <br /> <br />. Along somewhat similar lines, a state could erect a system governing <br />appropriation and transfer of water rights involving fees, administrative costs, et aI., that <br />would make its water more expensive than that of surrounding states. It could then erect <br />an unrelated system of subsidies to its users that would have the effect of reducing their <br />water costs to a normal level. The word "unrelated" is of course important here. As <br />explained above, any perception by the courts of discriminatory effect or intent will cause <br />such a regime to be struck down. However, if the subsidies are directed entirely to in- <br />state enterprises, they should pass muster. Harnsberger, et aI., note Indiana's successful <br />efforts in this regard. Indiana and Ohio both <br /> <br />had precisely the same policy objective--to provide an incentive for local <br />production of ethanol. Ohio gave fuel dealers a sales tax credit for each <br />gallon of ethanol sold - but only if the ethanol either was (1) produced in <br />Ohio (an example of facial discrimination against interstate commerce) or <br />(2) produced in a state that gave a similar credit for Ohio-produced ethanol <br />(an example of a reciprocity clause). Indiana, by contrast, gave a direct <br />subsidy to Indiana producers of ethanol. Ohio's plan was struck down as <br />economic protectionism; Indiana's plan was constitutional because it did <br />not regulate interstate commerce, but instead merely encouraged in-state <br />business. <br /> <br />. <br /> <br />Harnsberger, et aI., Interstate Transfers of Water at 831 (case not cited in original). <br /> <br />17 <br />