dissenting.
The issue presented by this case, and the only issue, is whether the existence of the Commerce Clause of the United States Constitution by itself, in the absence of any action by Congress, invalidates some or all of Neb. Rev. Stat. §46-613.01 (1978), which relates to ground water. But instead of confining its opinion to this question, the Court first quite gratuitously undertakes to answer the question of whether the authority of Congress to regulate interstate commerce, conferred by the same provision of the Constitution, would enable it to legislate with respect to groundwater overdraft in some or all of the States.
That these two questions are quite distinct leaves no room for doubt. Congress may regulate not only the stream of commerce itself, but also activities which affect interstate commerce, including wholly intrastate activities. See, e. g., Kirschbaum Co. v. Walling, 316 U. S. 517 (1942); United States v. Darby, 312 U. S. 100 (1941); Houston & Texas R. Co. v. United States, 234 U. S. 342 (1914). The activity upon which the regulatory effect of the congressional statute falls in many of these cases does not directly involve articles of commerce at all. For example, in Kirschbaum, the employees were engaged in the operation and maintenance of a loft building in which large quantities of goods for interstate commerce were produced; no one contended that these employees themselves, or the work which they actually performed, dealt with articles of commerce. Nonetheless, the provisions of the Fair Labor Standards Act were applied to them because Congress extended the terms of the Act not only to those who were “engaged in commerce” but also to those who were engaged “in the production of goods for commerce.” 316 U. S., at 522.
Thus, the authority of Congress under the power to regulate interstate commerce may reach a good deal further than *962the mere negative impact of the Commerce Clause in the absence of any action by Congress. Upon a showing that ground-water overdraft has a substantial economic effect on interstate commerce, for example, Congress arguably could regulate ground-water overdraft, even if ground water is not an “article of commerce” itself. See, e. g., Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U. S. 264, 281-283 (1981); id., at 310-313 (Rehnquist, J., concurring in judgment); Wickard v. Filburn, 317 U. S. 111 (1942). It is therefore wholly unnecessary to decide whether Congress could regulate ground-water overdraft in order to decide this case; since Congress has not undertaken such a regulation, I would leave the determination of its validity until such time as it is necessary to decide that question.
The question actually involved in this case is whether Neb. Rev. Stat. §46-613.01 (1978) runs afoul of the unexercised authority of Congress to regulate interstate commerce. While the Court apparently agrees that our equitable apportionment decrees in cases such as Wyoming v. Colorado, 353 U. S. 953 (1957), and the execution and approval of interstate compacts apportioning water have given rise to “the legal expectation that under certain circumstances each State may restrict water within its borders,” ante, at 956, it insists on an elaborate balancing process in which the State’s “interest” is weighed under traditional Commerce Clause analysis.
I think that in more than one of our cases in which a State has invoked our original jurisdiction, the unsoundness of the Court’s approach is manifest. For example, in Georgia v. Tennessee Copper Co., 206 U. S. 230, 237 (1907), the Court said:
“This is a suit by a State for an injury to it in its capacity of gwcm-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.”
*963Five years earlier, in Kansas v. Colorado, 185 U. S. 125, 142, 145-146 (1902), the Court had made clear that a State’s quasi-sovereign interest in the flow of surface and subterranean water within its borders was of the same magnitude as its interest in pure air or healthy forests.
In my view, these cases appropriately recognize the traditional authority of a State over resources within its boundaries which are essential not only to the well-being but often to the very lives of its citizens. In the exercise of this authority, a State may so regulate a natural resource as to preclude that resource from attaining the status of an “article of commerce” for the purposes of the negative- impact of the Commerce Clause. It is difficult, if not impossible, to conclude that “commerce” exists in an item that cannot be reduced to possession under state law and in which the State recognizes only a usufructuary right. “Commerce” cannot exist in a natural resource that cannot be sold, rented, traded, or transferred, but only used.
Of course, a State may not discriminate against interstate commerce when it regulates even such a resource. If the State allows indiscriminate intrastate commercial dealings in a particular resource, it may have a difficult task proving that an outright prohibition on interstate commercial dealings is not such a discrimination. I had thought that this was the basis for this Court’s decisions in Hughes v. Oklahoma, 441 U. S. 322 (1979), Pennsylvania v. West Virginia, 262 U. S. 553 (1923), and West v. Kansas Natural Gas Co., 221 U. S. 229 (1911). In each case, the State permitted a natural resource to be reduced to private possession, permitted an intrastate market to exist in that resource, and either barred interstate commerce entirely or granted its residents a commercial preference.1
*964By contrast, Nebraska so regulates ground water that it cannot be said that the State permits any “commerce,” intrastate or interstate, to exist in this natural resource. As with almost all of the Western States, Nebraska does- not recognize an absolute ownership interest in ground water, but grants landowners only a right to use ground water on the land from which it has been extracted. Moreover, the landowner’s right to use ground water is limited. Nebraska landowners may not extract ground water “in excess of a reasonable and beneficial use upon the land in which he owns, especially if such use is injurious to others who have substantial rights to the waters, and if the natural underground supply is insufficient for all owners, each is entitled to a reasonable proportion of the whole.” Olson v. City of Wahoo, 124 Neb. 802, 811, 248 N. W. 304, 308 (1933). With the exception of municipal water systems, Nebraska forbids any transportation of ground water off the land owned or controlled by the person who has appropriated the water from its subterranean source. 208 Neb. 703, 710, 305 N. W. 2d 614, 619 (1981). See App. 68-69.
Nebraska places additional restrictions on ground-water users within certain areas, such as the portion of appellants’ land situated in Nebraska, where the shortage of ground water is determined to be critical. Water users in appellants’ district are permitted only to irrigate the acreage irrigated in 1977, or the average number of acres irrigated between 1972 and 1976, whichever is greater, and must obtain permission from the water district’s board before any *965additional acreage may be placed under irrigation. The amount of ground water that may be extracted is strictly limited on an acre-inch-per-irrigated-acre basis. There are also detailed regulations as to the spacing of wells and the use and operation of flow meters. Id., at 71-82.
Since Nebraska recognizes only a limited right to use ground water on land owned by the appropriator, it cannot be said that “commerce” in ground water exists as far as Nebraska is concerned. Therefore, it cannot be said that Neb. Rev. Stat. §46-613.01 (1978) either discriminates against, or “burdens,” interstate commerce. Section 46-613.01 is simply a regulation of the landowner’s right to use ground water extracted from lands he owns within Nebraska.2 Unlike the Court, I cannot agree that Nebraska’s limitation upon a landowner’s right to extract water from his land situated in Nebraska for his own use on land he owns in an adjoining State runs afoul of Congress’ unexercised authority to regulate interstate commerce.3
Similarly, in City of Altus v. Carr, 255 F. Supp. 828 (WD Tex.), summarily aff’d, 385 U. S. 35 (1966), Texas placed no restrictions upon the use or the intrastate sale of ground water. The “rule in Texas was that an *964owner of land could use all of the percolating water he could capture from the wells on his land for whatever beneficial purposes he needed it, on or off the land, and could likewise sell it to others for use on or off the land and outside the basin where produced, just as he could sell any other species of property.” 255 F. Supp., at 833, n. 8. Texas’ absolute ownership rule is an anomaly among the Western States. See 5 R. Clark, Waters and Water Rights §441 (1972 and 1978 Supp.). In Nebraska, as in most of the Western States, ground water is not treated as “any other species of property.”
Unlike several other Western States, Nebraska does not entirely forbid ground water extracted in Nebraska to be used in other States. See Brief for City of El Paso as Amicus Curiae 2, n. 3. As noted by the Court, Nebraska merely places conditions on such a use of the State’s ground water. A permit must be obtained from the Nebraska Department of Water Resources. If the requested withdrawal of ground water is determined to be “reasonable,. . . not contrary to the conservation and use of ground water, and . . . not otherwise detrimental to the public welfare,” a permit will be issued so long as 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 the State of Nebraska.” Neb. Rev. Stat. § 46-613.01 (1978).
The Court today invalidates only the reciprocity provision in § 46-613.01. Ante, at 957-958. Appellants, however, have never applied for the permit required by the Nebraska statute. I see nothing in the Court’s opinion that would preclude the Nebraska Department of Water Resources from prohibiting appellants from transporting ground water into the Colorado portion of their land until they obtain the permit required by the statute. I also see nothing in the Court’s opinion that would preclude the Department of Water Resources from denying appellants a permit because of a failure to satisfy the remaining conditions in the statute.