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Show would injure prior appropriators in Wyoming. In their Constitutions both Wyoming and Colorado recognize only the doctrine of appropriation* but Colo- rado claimed the right to the use of all of the waters within her borders by reason of sovereignty or statehood* Wyoming contended that priority, re- gardless of State lines* should apply* and that Wyoming* having prior appro- priations of sufficient volume to use practically all of the waters of the river, was entitled to full protection in such uses. The U« S» Supreme Court* however, did not accept the priority date (1902) given the tunnel by the Colorado State Court, but set it back 7 years to 1909 ,? which put it behind many large intervening priorities in Wyoming and thereby reduced the remaining flow available for the Laramie-Poudre Tunnel. It imposed an acre-foot per acre of use limit on Colorado meadows and rejected the Colorado greater-productivity consideration* The Court held as followss (a) That the doctrine of prior appropriation, recognized by both States* was applicable to interstate streams and controversies* and furnish- ed "the only basis which is consonant with the principles of right and equity applicable to such a controversy as this"; (b) That Coloradofs claim to all the waters within its boundaries was untenable; (c) That water-shed trans-basin diversions are permissible where both States recognize such diversions within their respective boundaries; (d) That the burden of conserving* by storage reservoirs* the surplus waters of a stream is upon a lower State* which has the effect of relieving the upper State of the obligation to pass water to a lowor State when such action may result in waste; and (e) That there was no need to pass on the contention of the United States that all unappropriated waters of the Western States belong to the United S-tabes* and therefore* are already removed from State control. One of the interesting results of this suit was the fact that* in allo- cating tine entire water supply furnished by the Big Laramie River in Colo- rado and Wyoming* the Court arrived at its decision by first determining the total wai:er supply furnished, by the stream. It recognized the then exist- ing uses in both States* based upon their relative orders of priority* as determined by State laws. This sum total was deducted from the total water supply, which left a residue of 15*500 acre-feet of water per year* which the Court allocated to the Laramie-Poudre Tunnel, a Colorado appropriates As determined by the Court* this tunnel was the most junior appropriator on the stream* in both States* but the decision of the Court made its appropria- tion* to the extent of 15*500 acre-feet annually* actually senior to any appropriation out of the river in Wyoming. As a result of later years of subnormal, stream flow* many senior appropriations in Wyoming have lacked water, whiereas the tunnel eech year diverts all that it is physically poss- ible to divert up to 15*500 acre-feet. -9h- |
