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Show NORTH PLATTE RIVER LITIGATION 743 in each State. The proposal of Wyoming envisages distribution of natural flow and storage water indiscriminately as a common fund to all users. It is based on the theory that there is a sufficiency of water for everyone. The decree recommended by the Special Master departs from the theory of allocation advanced by the parties. In recommending his apportionment the Special Master did not rest on the long-time aver- age flow of the river. "We have discussed the drought which has per- sisted in this river basin since 1930. No one knows whether it has run its course or whether it represents a new norm. There is no reliable basis for prediction. But a controversy exists; and the decree which is entered must deal with conditions as they obtain today. If they substantially change, the decree can be adjusted to meet the new con- ditions. But the decree which is fashioned must be based, as the Special Master recognized, on the dependable flow. Wyoming v. Colorado, supra. In that case the Court pointed out that the average of all years was far from being a proper measure of the available supply. "An intending irrigator acquiring a water right based on such a measure would be almost certainly confronted with drought when his need for water was greatest. Crops cannot be grown on expectations of aver- age flows which do not come, nor on recollections of unusual flows which have passed down the stream in prior years." 259 U.S. p. 476. On this record we cannot say that the dependable flow is greater than the average condition which has prevailed since 1930. For reasons which we discuss at a later point in this opinion, we deal only with natural flow, not with storage water as Wyoming urges. On the basis of the conditions which have obtained since 1930, it is plain that the natural flow of the river during the irrigation season has been over-appropriated. Colorado, As we have noted, there are presently under irrigation in this section of the river 131,800 acres which consume (including reservoir evaporation) 98,540 acre feet annually. Exportations from the basin amount on the average to 6,000 acre feet, making the total annual depletion 104,540 acre feet. There are, as we have seen, addi- tional demands made by Colorado for future projects. The Special Master recommended that Colorado be enjoined (a) from the diver- sion of water for the irrigation in North Park of more than 135,000 acres of land, (b) from the accumulation in storage facilities in North Park of more than 17,000 acre feet between October 1 of any year and September 30 of the following year, and (c) from the transbasin diversion out of North Park of more than 6,000 acre feet between October 1 of any year and September 30 of the following year. Colorado excepts to these proposals. But with minor exceptions which we will note, we do not believe those exceptions are well taken. We are satisfied that a reduction in present Colorado uses is not warranted. The fact that the same amount of water might produce more in lower sections of the river is immaterial. Wyoming v. Colo- rado, supra, p. 468. The established economy in Colorado's section of the river basin based on existing use of the water should be pro- tected.14 Cf. Colorado v. Kansas, supra, p. 394. Appropriators in "Nebraska objects to the margin of safety provided above actual existing uses. But we do not believe that the margin allowed is unjust under all the circumstances of the case. |
