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Show NORTH PLATTE RIVER LITIGATION 749 decree only storage water and not natural flow could be supplied and unless storage water is appropriately defined by the decree, it might not be possible to meet the contract requirements without violation of the limitations on natural flow which are fixed by the decree. And it says that that would be the result if storage water were defined to exclude all water passed through a reservoir at any time when its inflow is as great as or greater than its outflow. Nebraska recognizes the desirability of that course. She contends, however, that where the outflow is equal to or less than the intake, none of the released water can be considered as storage water. And she says that when the water being released is greater than the inflow, that portion which represents the amount of natural flow being taken in at the intakes cannot be considered as storage. See Gila Valley Irrigation Dist. v. United States, 118 F. 2d 507. She says that the United States by its proposal is attempting to transform into storage water what is in fact natural flow originating above the reservoirs. For reasons which will be more fully discussed, we think that storage water should be left for distribution in accordance with the contracts which govern it. Accordingly, we think it is advisable to define storage water in the manner proposed by the United States, so as to make the operation of the decree more certain and to adjust it to the storage water contracts which are outstanding. Storage water therefore is defined for purposes of this decree as any water which is released from reservoirs for use on lands under canals having storage contracts in addition to the water which is discharged through those reservoirs to meet the requirements of any canal as recognized in the decree. This definition does not adversely affect rights recog- nized in the decree. It is perhaps a departure from the ordinary meaning of storage. But so long as the Warren Act contracts are outstanding that definition is necessary in order to give them effective- ness. For they do not provide that the United States will furnish water in such amounts as may from time to time be available. The United States agrees to deliver water which will, with all the water to which the land is entitled by appropriation or otherwise, aggre- gate a stated amount.17 There are other exceptions of a minor character to this part of the decree. We have considered them and conclude that they do not have merit. Pathftjider, Guernsey, Seminoe and Alcova Reservoirs. The Special Master recommends that Wyoming be enjoined to respect the rule of priority of these reservoirs in respect to each other and that the order of seniority as between them be defined as follows: (1) Pathfinder, (2) Guernsey, (3) Seminoe, and (4) Alcova. He recommends, however, that water be allowed to be impounded in Seminoe "out of priority"' in relation to Pathfinder and Guernsey for such use only in the generation of power by the Seminoe hydro- 17 Thus the contract with the Gering Irrigatioa District provides : "The United States will impound, and store water in the Pathfinder Reservoir, or elsewhere and release the same into the North Platte River at such times and in sufficient quantities to deliver, and does hereby agree to deliver at the Wyoming-Nebraska State line for the use of said District an amount of water which will, with all the water the lands of the District may be entitled to by reason of any appropriations and all water not otherwise appropriated, including drainage and seepage waters developed by the United States, aggregate a flow of water as follows: [Here follows the delivery schedule] ; the total amount to be so delivered being appoximately 35,500 acre feet." |