icle 309 of NAFTA and Article XI of GATT, countries are prohibited from imposing quantitative limits on the exportation of goods and products. In order to avoid the prohibition against such export controls the federal government reasons that it must focus its efforts regulation "water resources" which it argues would not be considered a "good" under NAFTA and GATT rules. 2Unfortunately there are several reasons to doubt the validity of this analysis. To begin with, and as many other commentators have noted, water is a "good" a under NAFTA and GATT rules because its is explicitly included under GATT tariff headings. While the federal government has argued that this inclusion only concerns water that has been actually removed from its natural state, — for example water bottled for sale — the tariff schedules include no such limitation.Second, water in its natural state is considered a commercial good under US law. US courts have repeatedly made this determination when called upon to determine the constitutionality of state restrictions on water transfers across state borders. These cases have consistently concluded that groundwater is an article of commerce, rejecting the argument that state governments have the authority to discriminate between in-state and out-of-state water use. In Sporhase v Nebraska ex rel. Douglas, the Supreme Court of the United States was called upon to determine various matters concerning a Nebraska law that stated that it would not provide a permit for withdrawal of ground water for use in another state unless various conditions were met. In resolving the case, the Court struck down Nebraska’s ground-water export control legislation as unconstitutional and held that water is an article of commerce under US law. In doing so the court also rejected the argument that state ownership of water entitled it to discriminate against out-of-state users. Finally the court dismissed the argument that wate...
