US SUPREME COURT DECISIONS

A Nebraska statute provides that any person who intends to withdraw groundwater 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 groundwater, 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 groundwater from that State for use in Nebraska. Appellants jointly own contiguous tracts of land in Nebraska and Colorado, on which a well on the Nebraska tract pumps groundwater for irrigation of both the Nebraska and Colorado tracts, but they never applied for the permit required by the statute. Appellee brought an action in a Nebraska state court to enjoin appellants 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.

Held:

1. Ground water is an article of commerce, and therefore subject to congressional regulation. Pp. 458 U. S. 945-954.

(a) Although appellee's claimed greater ownership interest in groundwater than in certain other natural resources may not be irrelevant to Commerce Clause analysis, it does not remove Nebraska groundwater from such scrutiny, since appellee's argument is still based on the legal fiction of state ownership. Pp. 458 U. S. 945-952.

(b) The States' interests in conserving and preserving scarce water resources in the arid Western States clearly have an interstate dimension. The agricultural markets supplied by irrigated farms provide the archtypical example of commerce among the States for which the Framers of the Constitution intended to authorize federal regulation. Here, the multistate character of the aquifer underlying appellants' tracts of land, as well as parts of Texas, New Mexico, Oklahoma, and Kansas, demonstrates that there is a significant federal interest in conservation as well as in fair allocation of diminishing water resources. Pp. 458 U. S. 952-954.

2. The reciprocity requirement of the Nebraska statute violates the Commerce Clause as imposing an impermissible burden on interstate chanrobles.com-red

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commerce. While the first three conditions set forth in the statute for granting a permit -- that the withdrawal of the groundwater be reasonable, not contrary to the conservation and use of groundwater, and not otherwise detrimental to the public welfare -- do not, on their faces, impermissibly burden interstate commerce, the reciprocity provision operates as an explicit barrier to commerce between Nebraska and its adjoining States. Nebraska therefore has the initial burden of demonstrating a close fit between the reciprocity requirement and its asserted local purpose. Such requirement, when superimposed on the first three restrictions, fails to clear this initial hurdle, since there is no evidence that it is narrowly tailored to the conservation and preservation rationale. Thus, it does not survive the "strictest scrutiny" reserved for facially discriminatory legislation. Pp. 458 U. S. 954-958.

3. Congress has not granted the States permission to engage in groundwater regulation that would otherwise be impermissible. Although there are 37 federal statutes and a number of interstate compacts demonstrating Congress' deference to state water law, they do not indicate that Congress wished to remove federal constitutional restraints on such state law. 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 through mutual agreement constitutes persuasive evidence that Congress consented to the unilateral imposition of unreasonable burdens on commerce. Pp. 458 U. S. 959-960.

208 Neb. 703, 305 N.W.2d 614, reversed and remanded.

STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J.,and BRENNAN, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in which O'CONNOR, J., joined, post, p. 458 U. S. 961. chanrobles.com-red

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