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Show 744 INTERSTATE ADJUDICATIONS Colorado junior to Pathfinder have made out-of-priority diversions of substantial amounts. Strict application of the priority rule might well result in placing a limitation on Colorado's present use for the benefit of Pathfinder. But as we have said, priority of appropriation, while the guiding principle for an apportionment, is not a hard and fast rule, Colorado's countervailing equities indicate it should not be strictly adhered to in this situation. Colorado asserts, however, that the limitation of transbasin diversions to 6,000 acre feet a year should not be imposed. Her point is that 6,000 acre feet represent merely the average annual transbasin diversions, that annual diver- sions have exceeded that amount, and that a limitation of 6,000 acre feet annually will interfere with existing Colorado users. We think the point is well taken. The decree will enjoin Colorado export ations in excess of an average of 6,000 acre feet computed over a period of ten years.15 But Colorado's other exceptions to the suggested limitations to be placed on her use of the wTater of the North Platte are not sustained. The principal argument is that on the basis of the long time averages there is enough water to go around, that no limitation on use is war- ranted, and that the proposed limitation is a deprivation suffered by Colorado for the benefit of downstream users. But that argument fails if we assume, as we must on the evidence before us, that the dependable supply does not exceed the amount of water which has been available since 1930. Nor can we see how existing projects can be protected on the basis of the 1931-1940 supply if additional projects in Colorado are permitted. If at any time additional projects are threatened in downstream areas, Colorado may make complaint. If conditions of supply substantially change, any party can apply for modification of the decree. The decree will not necessarily be for all time. Provision will be made for its adjustment to meet substan- tially changed conditions. Nor will the decree interfere with relation- ships among Colorado's water users. The relative rights of the appro- priators are subject to Colorado's control. Colorado finally says that the proposed restriction on her uses of the water violate the Act of August 9, 1937, 50 Stat. 564, 595, which appropriated funds for the Kendrick Project. That Act provided that "in recognition of the respective rights of both the States of Colorado and Wyoming to the amicable use of the waters of the North Platte River, neither the construction, maintenance, nor opera- tion of said (Kendrick) project shall ever interfere with the present vested rights or the fullest use hereafter for all beneficial purposes of the waters of said stream or any of its tributaries within the drain- age basin thereof in Jackson County, in the State of Colorado, and the Secretary of the Interior is hereby authorized and directed to reserve the power by contract to enforce such provisions at all times." But that A.ct does not limit or restrict Nebraska's or Wyoming's claim for apportionment against Colorado. Moreover, the Kendrick Project under present conditions (which are the basis of the decree) could store no water without violating other priorities. If the long time average conditions return, it can do so. Only at that time could there 15 In accord with Colorado's suggestion the decree will embrace Jackson County and not North Park since the two are not coterminous and since Jackson County is entirely within the river basin and includes areas not located in North Park. |