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The state's interest in conservation and preservation of ground water is advanced by the first three conditions in Neb. Rev. Stat. § 46-613.01 for the withdrawal of water for an interstate transfer. Those requirements are that the withdrawal of the ground water requested is reasonable, is not contrary to the conservation and use of ground water, and is not otherwise detrimental to the public welfare. Although Commerce Clause concerns are implicated by the fact that § 46-613.01 applies to interstate transfers but not to intrastate transfers, there are legitimate reasons for the special treatment accorded requests to transport ground water across state lines. Obviously, a state that imposes severe withdrawal and use restrictions on its own citizens is not discriminating against interstate commerce when it seeks to prevent the uncontrolled transfer of water out of the state. An exemption for interstate transfers would be inconsistent with the ideal of evenhandedness in regulation.
A Nebraska statute provides that any person who intends to withdraw ground water from any well located in the State and transport it for use in an adjoining State must obtain a permit from the Nebraska Department of Water Resources. If the Director of Water Resources finds that such withdrawal is reasonable, not contrary to the conservation and use of ground water, and not otherwise detrimental to the public welfare, he will grant the permit if the State in which the water is to be used grants reciprocal rights to withdraw and transport ground water from that State for use in Nebraska. The landowners jointly own contiguous tracts of land in Nebraska and Colorado, on which a well on the Nebraska tract pumps ground water for irrigation of both the Nebraska and Colorado tracts, but they never applied for the permit required by the statute. Nebraska brought an action in a Nebraska state court to enjoin the landowners from transferring the water across the border without a permit. Rejecting the defense that the statute imposed an undue burden on interstate commerce, the trial court granted the injunction. The Nebraska Supreme Court affirmed.
Was the Nebraska statute forbidding withdrawal of ground water to foreign state which denies such privileges to Nebraska, violative of commerce clause (Art I, 8, cl 3)?
The court held that the ground water is an article of commerce and is therefore subject to congressional regulation. The Nebraska reciprocity provisions violated the commerce clause (Art I, 8, cl 3) as imposing an impermissible burden on interstate commerce, even though the three conditions set forth in the statute for granting a permit--that the withdrawal of the ground water be reasonable, not contrary to the conservation and use of ground water, and not otherwise detrimental to the public welfare--did not on their faces impermissibly burden interstate commerce, since the reciprocity provision operated as an explicit barrier to commerce between the state and adjoining states and where there was no evidence that the restriction is narrowly tailored to the asserted local purposes of conservation and preservation. Congress has not granted the states permission to engage in ground water regulation that would otherwise be impermissible, neither the fact that Congress has chosen not to create a federal water law to govern water rights involved in federal water projects nor the fact that Congress has been willing to let the states settle their differences over water rights with a mutual agreement, constituting persuasive evidence that Congress consented to the unilateral imposition of unreasonable burdens on commerce.