Escaping the Sporhase Maze: Protecting State Waters Within the Commerce Clause

• Author: Mark S. Davis - Michael Pappas
• Position: Senior Research Fellow, Tulane University Law School, and Director of the Tulane Institute on Water Resources Law and Policy - Assistant Professor of Law, University of Maryland Francis King Carey School of Law. Many thanks to Brigham Daniels, Kati Kovacs, Amanda Leiter, Jessie Owley, Justin Pidot, and Noah Sachs for generous and helpful...
• Pages: 175-218

Escaping the Sporhase Maze: Protecting State Waters

Within the Commerce Clause

Mark S. Davis∗

Michael Pappas∗∗

ABSTRACT

Eastern states, though they have enjoyed a history of relatively

abundant water, increasingly face the need to conserve water,

particularly to protect water-dependent ecosystems. At the same

time, growing water demands, climate change, and an emerging

water-oriented economy have intensified pressure for interstate

water transfers. Thus, even traditionally wet states are seekin g to

protect or secure their water supplies. However, restrictions on

water sales and exports risk running afoul of the Dormant

Commerce Clause. This Article offers guidance for states,

particularly eastern states concerned with maintaining and

improving water-dependent ecosystems, in seeking to restrict water

exports while staying within the confines of the Dormant

Commerce Clause.

TABLE OF CONTENTS

Abstract…. ...........................................................................175

I. Introduction ..........................................................................176

II. Wet States and Water Needs ................................................180

III. A History of State Water Regulation and the Dormant

Commerce Clause ................................................................183

A. State Water Regulation ..................................................183

B. The Dormant Commerce Clause ....................................186

C. Striking the Balance: Sporhase in Context ....................187

Copyright 2012, by MARK S. DAVIS AND MICHA EL PAPPAS.

∗ Senior Research Fellow, Tulane University Law School, and Director of

the Tulane Institute on Water Resources Law and Policy.

∗∗ Assistant Pr ofessor of Law, University of Maryland Francis King Carey

School of Law. Many thanks to Brigham Daniels, Kati Kovacs, Amanda Leiter,

Jessie Owley, Justin Pidot, and Noah Sachs for generous and helpful comments.

Thanks also to Alice Johnson, Max Siegel, and Sue McCarty for research and

editorial assistance.

176 LOUISIANA LAW REVIEW [Vol. 73

IV. State Practice in Light of a Correct Reading of Sporhase ...198

A. State Characterization and Treatment of

Water Resources ............................................................199

1. Determining Whether Water Is an Article

of Commerce ............................................................199

2. The Importance of State Characterization

in Dormant Commerce Clause Balancing ................206

B. Generally Applicable Water Restrictions ......................206

C. Documentation of Water Shortages ...............................210

D. Water Compact Language ..............................................216

V. Conclusion ...........................................................................217

I. INTRODUCTION

Water is the stuff of conflict. Essential to both life and

commerce, but too often insufficient for all to have their fill, water

makes enemies of landowners, irrigators, energy developers,

environmentalists, ecosystems, industries, individuals, companies,

flora, and fauna. So often, water places neighbors at odds.1

Such struggles over water have played a defining role in the

story of the western United States, and increasingly the wave of

conflict washes east as newfound scarcity breeds concern and

conflict. Recently, water disputes have arisen between North

Carolina and South Carolina,2 between Mississippi and Tennessee,3

as well as among Georgia, Alabama, and Florida.4 Moreover,

droughts in the southern and southeastern United States have forced

Texas to endure the driest seven-month span on record5 and have led

football stadiums in Georgia to limit fans’ freedom to flush during

major sporting events.6

1. As often quoted in water law articles, “[W]hiskey is for drinking and

water is for fighting over.” See, e.g., Mark Davis & James Wilkins, A Defining

Resource: Louisiana’s Place in the Emerging Water Economy, 57 LOY. L. REV.

273, 285 (2011).

2. South Carolina v. North Carolina, 130 S. Ct. 854, 858 (2010).

3. Hood ex rel. Mississippi v. City of Memphis, 570 F.3d 625, 627 (5th

Cir. 2009).

4. In re Tri-State Water Rights Litig., 639 F. Supp. 2d 1308, 1355 (M.D.

Fla. 2009).

5. See, e.g., Betsy Blaney, Texas Drought 2011: State Endures Driest 7-Month

Span on Record, HUFFPOST GREEN (May 9, 2011, 7:00 PM), http://www.huffington

post.com/2011/05/10/texas-drought-2011-record_n_859902.html.

6. See Drinking Water Basics, NAT’L ACADS. WATER INFO. CTR., http://

water.nationalacademies.org/basics.shtml (last visited July 31, 2012) (“In

2012] ESCAPING THE SPORHASE MAZE 177

As water concerns grow in the national consciousness, a new

challenge continues to place neighbors (this time states) in a

difficult position regarding competing interests in water. This

challenge is interstate water markets and their demand to export

water from states where it is relatively abundant to drier environs.

Concerned about climate change, drought, environmental

conservation and enhancement, new in-state water needs, and a

growing awareness that one state’s water may be very much

coveted by its neighbors,7 states are seeking to find ways to hold

on to their water, maintain and improve ecosystems, and turn water

into a strategic asset.

Louisiana and Texas offer a current example of this neighborly

challenge. Louisiana, positioned at the terminus of major rivers

and built by the alluvial action of those rivers, is a relatively water-

rich state. In fact, water concerns in Louisiana are more frequently

perceived as stemming from overabundance (i.e., flooding) rather

than from shortage.8 However, Louisiana is increasingly

experiencing droughts and requires a copious outpouring of

freshwater to maintain, much less restore, its vanishing coastline.9

Texas, on the other hand, is not known for its abundant freshwater

and has long recognized that its water resources are not sufficient

to support its water use.10 In fact, Texas began eyeing Louisiana’s

Athens, Georgia, fan s at the University of Geo rgia’s homecoming fo otball game

were asked not to flush the toilets: stadium attendants were even hired to

moderate flushing in a desperate effort to save water.”).

7. Support for this statement is too extensive to document here. However, by

way of example, see Amy Joi O’Donoghue, The Fight for Water: Can the Mighty

Mississippi Save the West?, DESERET NEWS (May 13, 2012, 6:21 P.M.), http://

www.deseretnews.com/article/865555735/The-fight-for-water-Can-the-mighty-

Mississippi-save-the-West.html?pg=all.

8. See Oliver A. Houck, Rising Water: The National Flood Insurance

Program and Louisiana, 60 TUL. L. REV. 61, 63 (1985) (observing that “[n]o

state in America is more familiar with flood losses than Louisiana, which sits on

the Gulf of Mexico at the receiving end of waters draining the entire Central

United States” and that “development of New Orleans and much of South

Louisiana is a study in the very defiance of water”).

9. See COASTAL PROT. & RESTORATION AUTH. OF LA., LOUISIANA’S

COMPREHENSIVE MASTER PLAN FOR A SUSTAINABLE COAST (2012), available at

http://www.lacpra.org/assets/docs/2012%20Master%20Plan/Final%20Plan/2012

%20Coastal%20Master%20Plan.pdf [hereinafter 2012 LOUISIANA COASTAL

MASTER PLAN], for a detailed examination highly reliant on river flows.

10. See Joe Patranella, Note, Love Thy Neighbor as Thyself: An Analysis of

the Texas Water Shortage, Tarrant Regional Water District v. Herrmann, and

Why Oklahoma Should Be Mandated to Allow Texas to Purchase Water, 52 S.

TEX. L. REV. 297, 298 (2010) (explaining that “Texas is at an alarming

crossroads in regard to its water supply” and that “[o]ne can hardly drive down