Compacts, Decrees, and Treaties Affecting CO's Water

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water to be used in Nebraska. If it could be shown that the State as a whole suffers a water shortage, that the intrastate transportation of water from areas of abundance to areas of shortage is feasible regardless of distance, and that the importation of water from adjoining States would roughly compen- sate for any exportation to thase States, then the conservation and preservation purpose might be credibly advanced for the reci- procity provision. A demonstrably arid State conceivably might be able to marshal evidence to establish a close means-end rela- tionship between even a total ban on the exportation of water and a purpose to conserve and preserve water. Appellee, however, does not claim that such evidence exists. ... The reciprocity requirement does not survive the 'strictest scrutiny' reserved for facially discriminatory legislation." Pp. 957-58; citations omitted. City of 21 Paso v. Reynolds, 563 F. Supp. 379 (D.N.M. 1983): "New Mexico's einbargo bars the export of ground water abso- lutely; it is an explicit barrier to interstate commerce. Fa- cially discriminatory, it is subject to the strictest scrutiny. Defendants must demonstrate that the embargo serves a legitimate local purpose, that it is narrowly tailored to that purpose and that there are no adequate non-discriminatory alternatives." P. 388; citations omitted. "Taken as a whole, New Mexico's scheme of water regulation demonstrates a genuine effort to promote optimum utilization of its diminishing water resources. This effort 'is unquestionably legitimate and highly important.' While it may justify limited, non-discriminatory burdens on interstate commerce, it cannot sup- port a total ban on interstate transportation of ground water." P. 389; citations omitted. " - - "If the embargo's purpose were to conserve and preserve the water iz•?Dply for the health of New Mexico's citizens and not the health __ '_ts economy, it still would be unconstitutional because it is noc narrowly tailored to achieve that purpose. As stated before, there is no present or imminent shortage of water in New Mexico for health and safety needs. In fact, the State Engineer testified that New Mexico is far from the time when water will be a limitinq factor on the state's growth. "Assuming that such shortages were foreseeable and that New Mexico could constitutionally preserve its water to meet future shortages, the embargo is not a means to that end. The embargo only prevents the transfer of ground water out of the state; it places no restriction on in-state use. ... The state's policy of 'maximum beneficial use' envisions putting as much water to beneficial use as soon as possible. If New Mexico ever is faced with a shortage of water for health and safety purposes, the state's current water code, including the embargo, will not en- sure that there is an adequate supply in reserve to meet the -9-