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Show NORTH PLATTE RIVER LITIGATION 753 the river. The United States could rightfully leave the water in the sumps. In that case, no one would ever have the use of it. It is argued that since by artificial drainage the United States adds to the natural flow below Kendrick, it is only fair to allow Kendrick whatever benefit may result from that contribution. Cf. Reno v. Richards, 32 Ida. 1, 178 P. 81. One difficulty is that the drainage system has not been completed, Kendrick has not been put into operation, and we do not know whait the contribution by artificial drainage will be. Accordingly, we do not at this time consider the claim on the merits. When Ken- drick has been put into operation and there is a full development of return flows, application may be made for revision of the decree to permit "in lieu of" diversions at or above Alcova. Whalen to Tri-State Dam. As we have said, this is the critical section of the river. The main controversy centers around it and around the Special Master's proposal for dealing with it. He proposes that the natural flow water in this section between May 1 and September 30 each year be apportioned on the basis of 25 per cent to Wyoming and 75 per cent to Nebraska. He recommends that Nebraska be given the right to designate from time to time the portion of its share which shall be delivered to the Interstate, Ft. Laramie, French and Mitchell Canals for use on Nebraska lands served by them and that Wyoming be enjoined from diversions contrary to this apportionment.19 Nona of the parties agrees to this apportionment. Wyoming earnestly contends that storage water as well as natural flow should be included in the apportionment which is made for this section of the river. She points out that in 'Wyoming v. Colorado, supra, the Court made an appointment based upon a supply "which is fairly constant and dependable, or is susceptible of being made so by storage and conservation within practicable limits." 259 U.S. p. 480. She argues that the Court has the power to allocate storage water though its disposition is controlled by contracts between the United States and irrigation districts; and that an apportionment which ex- cludes storage water is unfair. The argument is that each State should be restricted to the use of such supplies only as are necessary to provide their respective irrigators, including those receiving water under con- tracts, with such amounts as are necessary for beneficial use. The large excesses diverted by Nebraska are adverted to as showing the degree to which carry-over storage in the upper reservoirs has been diminished and the supply for Kendrick exhausted. The Special Master concluded that since the North Platte Project storage water was disposed of under contracts between the United States and landowners under the project and under the Warren Act contracts, the obligations of those contracts and the necessity of per- 19 He likewise recommends (1) that in the apportionment of water in this section the flow for each day, until aseertainable, shall be assumed to be the same as that of the preceding day as shown by the measurements and computations for that day ; and (2) that In the segregation of natural flow and storage water, reservoir evaporation and transpor- tation losses shall be determined in accordance with the formula and data which appear in the record identified as United States Exhibit 204A, unless and until Nebraska, Wyoming, and the United States may agree upon a modification thereof or upon another formula. We discuss the second of these recommendations later in this opinion. We adopt both of them. |
