OCR Text |
Show NORTH PLATTE RIVER LITIGATION 761 Nebraska contends that the requirements of Tri-State should be 196,000 acre feet and that the allotment to the Gering-Ft. Laramie Irrigation District should be 169,165 acre feet. The argument for the increase for Tri-State is based on the theory that Nebraska has not been given in this section the same margin of safety which was allowed Wyoming in the Pathfinder-Whalen section of the river. But Ne- braska has not shown that this allowance was less accurate than the ones made to Wyoming in the other section of the river. And our reading of the record convinces us that the allowances to Nebraska are as liberal as those to Wyoming and that an increase to either would not be justified in view of the overappropriation of the natural flow. The argument of an increase in the allotment to the Gering-Ft. Laramiei Irrigation District points out that it receives the same head- gate allotment as the Goshen Irrigation District in Wyoming which supplies the Wyoming land under the canal and that the lower area should be given a substantially larger headgate allotment to compen- sate for canal losses in the upper section of the canal. This argument, however, is not supported by evidence. The same allowance for the lands in each State is supported by the record. For there is evidence that the delivery to the lands in each State in relation to headgate diversions is substantially the same. The United States contends that the allowance of 65 second feet for the Northport Canal is error. As the Special Master indicated, the 65 second feet allowance is the amount necessary to serve the acre- age under that canal which will not be served by return flow inter- cepted and transported for Northport by the Tri-State Canal. But as the United States points out, return flow is not steady during the irrigation season. It presented a study showing that m the seven best years from 1930 to 1940 the average return flow intercepted by Tri-State on May 1 was only 23 second feet, averaged only 43.9 second feet for the month of May, averaged 135 second feet for the month of July and did not reach its peak of 200 second feet until September 30, the end of the irrigation season. On that basis Northport could irri- gate very little of its acreage from return flow in the first part of the irrigation season, though at the end of the season it could irrigate all. The second feet requirement of Northport is 186. We conclude that Northport should be entitled to use that amount of flow during the season to meet its requirement of 19,100 acre feet. The 186 second feet will, however, be subject to reduction by the amount of return flow intercepted by the Tri-State Canal for delivery to Northport at any given point of time. As we have noted,22 the Special Master recommends that for this part of the decree segregation of natural flow and storage water be determined in accordance with the formula and data appearing in U.S. Exhibit 204A, unless and until Nebraska, Wyoming, and the United States agree upon a modification or upon another formula. Wyoming contends that it is impossible to determine what is natural flow and what is storage water in the Whalen-Tri-State Dam section of the river from day to day. The problem is a perplexing one. Phys- ical segregation is, of course, impossible. But on the basis of the record we think that it is feasible to determine what portion of the flow at a given point is storage water and what portion is natural flow. 22 Note 19, supra. 94-497-69------49 |