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Show 742 INTERSTATE ADJUDICATIONS might jeopardize them. Apportionment calls for the exercise of an informed judgment on a consideration of many factors. Priority of appropriations is the guiding principle. But physical and climatic conditions, the consumptive use of water in the several sections of the river, the character and rate of return flows, the extent of established uses, the availability of storage water, the practical effect of wasteful uses on downstream areas, the damage to upstream areas as compared to the benefits to downstream areas if a limitation is imposed on the former-these are all relevant factors. They are merely an illustra- tive, not an exhaustive catalogue. They indicate the nature of the problem of apportionment and the delicate adjustment of interests which must be made. Practical considerations of this order underlie Nebraska's conces- sion that the priority rule should not be strictly applied to appro- priations in Colorado, though some are junior to the priorities of appropriators in Wyoming and Nebraska. As the Special Master points out, the flowage time of water from North Park to Bridgeport, Nebraska is between two and three weeks. If a canal in North Park were closed to relieve the shortage of a senior appropriator in Ne- braska, it would be highly speculative whether the water would reach the Nebraska appropriator in time or whether the closing of the Colorado canal would work more hardship there than it would bestow benefits in Nebraska. Moreover, there is loss of water in transit from the upper to the downstream sections, increasing with the distance. The lower appropriator thus receives less than the upper appropriator loses. And there is evidence that a river-wide priority system would disturb and disrupt long-established uses. Nebraska, however, urges that priority of appropriation interstate be adopted from the Alcova Reservoir east and more particularly from the Wlialen diversion dam east. She points out that there is a large acreage of Nebraska land which is irrigated by canals diverting at Whalen. There are four canals diverting in Wyoming and irrigating land entirely or in part in Nebraska-Mitchell, Interstate, Ft. Lara- mie and French. For example, the diversion point for Mitchell is in Wyoming though all the land it serves is in Nebraska. Nebraska has maintained that diversions of that canal should be regulated to observe the priorities of senior Nebraska canals including Tri-State. Wyoming was willing to regulate her upstream junior appropriators for the benefit of Mitchell provided the water go to Mitchell and not be used for Tri-State which is senior to both Mitchell and certain Wyoming appropriators.13 Nebraska therefore urges an interstate allocation which would require junior appropriators in Wyoming to respect not only Mitchell's priorities but also those of Tri-State and other Nebraska canals in this section of the river. The United States takes substantially the same position on this matter as Nebraska except that it argues that a priority allocation interstate be confined to that area between Whalen and Tri-State Dam. Wyoming contends for a system of mass allocation between the States, saying that no attempt can or should be made in this proceed- ing to determine the priorities interstate of the various appropriators 13 That controversy between the States is partly reflected in State v. Mitchell Irrigation District, 129 Neb. 586, 262 N.W. 543, and Mitchell Irrigation District v. Whiting, 59 Wyo. 52, 136 P. 2d 502. |
