WSPC05818 - Laserfiche WebLink

Home Browse Search

001545 regulated by the states in an evenhanded manner but only w~o;:n . '-.i:''''~: necessary to promote a legitimate local interest. rd. While ,~, confirming that the protection of the p1.lblic welfare and the conservation of water were legitimate reasons for regulating and for limiting the interstate transfer of water rights, federal law II' now requires that a state must demonstr,ate a specific state conservation and welfare interest and any limitation on interstate commerce must be narrowly drawn to achieve that specific purpose. ( As stated by Johnson and Dumars, supra, at p.383: (, [T]he range of reaction in prior appropriation states to the potential for interstate transfers of water has been varied. ' Some states have attempted to capture economic value as water is transferred out of the state by assessing export fees or by establishing a lease system. Others have attempted to control the activity through legislative approval of transfer. Still others have adopted broad, even-handed criteria related to the conservation of water and the public welfare similar to that referred to as , legi tima te ' in Sporhase. Others ha ve attempted to promote bona fide water planning with respect to unappropriated water to insure that their state has sufficient water s1.lpplies in the future. The constitutionality of each of these provisions will undoubtedly depend on the factual context in which they are challenged and the evolution of Supreme Court case law. ~ Regardless of whether transfers are intrastate or interstate, certain conditions must be met. First, the water transferred must be put to some beneficial use, second, existing water right users , , must not be impaired by such transfers, and third, areas of origin must be protected, i.e. a replacement economic activity needs to}?e arranged for those areas subject ,to a long-term transfer of water. \. 19