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Show NORTH PLATTE RIVER LITIGATION 757 justification for rejection of the strict priority allocation advanced by the United States and Nebraska. An equitable apportionment may be had without fashioning a decree of that detail. And greater adminis- trative flexibility may be achieved within the respective States by choice of another alternative. The United States and Nebraska, however, press on us a second alternative in lieu of the 25-75 percentage basis recommended by the Special Master. They suggest that a schedule of varying flows of the stream be adopted. Under that theory there would be an allocation on a priority basis to each of the seven "blocks" of second feet up to and including 1,526 second feet. All above 1,526 second feet would be apportioned on a percentage basis, e. g. 28 percent to Wyoming and 72 percent to Nebraska. That alternative method has much to recommend it because of its rather strict adherence to the principle of priority during the periods of low flow. And it may be that it would involve no greater adminis- trative burden than the flat percentage method. For as Nebraska points out, when the supply is determined it would seem to be as easy to give Wyoming the first 103 second feet and Nebraska the next 924 second feet as it would be to divide the second feet of flow by percent- ages. Moreover, the proposed alternative method would preserve, as well as the flat percentage method, the full control of each State over the internal administration of her water supply. We are not satisfied, however, that the block system of allocation up to and including 1,526 second feet is the more equitable under the cir- cumstances of this case. The combined requirement of the Tri-State and Mitchell Canals is 924 second feet. Under the block system of apportionment there would be no water for the Wyoming canals in groups 3, 5, and 7 of the foregoing table except such storage water as would be available to the Lingle and Hill Districts in group 5 under their Warren Act contracts. The Wyoming appropriations in these groups are, to be sure, junior to Tri-State and Mitchell. But as the Special Master points out those Wyoming appropriations, though junior, represent old established uses in existence from 40 to over 50 years. Their water supply was not challenged by Nebraska on behalf of Tri-State and Mitchell until the 1931-1940 drought cycle. For ex- ample, 6,282 acres are served by two canals which have exercised their appropriative rights without interference for over 50 years. Further- more, the great increase in return flows from the North Platte Project, which we discussed earlier, are relevant here. Those return flows are a "windfall" to irrigators who are so situated on the river as to use them yet who do not have storage rights and who share no part of stor- age costs. As we have seen, these return flows are substantial and should be taken into account in balancing the equities between Wyo- ming and Nebraska in this section of the river. Moreover, the storage water rights of the lands included in groups 1, 2, 3 and 4 of the fore- going table bear upon this problem. Eighty-two per cent of that Ne- braska acreage has storage water rights under Warren Act contracts; 7 per cent of that Wyoming acreage has storage water rights. When groups 1 to 7 are considered, 82 per cent of the Nebraska acreage and |
