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<br /> <br />0007J5. <br /> <br />strata below; whether certain persons, firms, and corporations in <br />Colorado must be made parties hereto; what lands in Kansas are <br />actually situated on the banks of the river, and what, either in <br />Colorado or Kansas, are absolutely dependent on water therefrom; <br />the extent of the watershed or the drainage area of the Arkansas <br />river; the possibilities of the maintenance of a sustained flow <br />through the control of flood waters. <br /> <br />Thus the watershed area within each state was listed as an important consideration, although itwa$~r <br />not noted as a factor in the Court's ultimate resolution ofthe dispute. 206 U.S. 46 (1907). ,'f';:;< <br /> <br />In Wyoming v. Colorado, 259 U.S. 419, 484 (1922), the Court added "reasonable use" as a criterl' <br />stating that "the doctrine [of prior appropriation applied in each state and used as the basisfoit. <br />Court's decision] lays on each of these states a duty to exercise her right [in the Laramie Riv.~f <br />reasonably and in a manner calculated to conserve the common supply," and anexpansiveliSt~,pfi} <br />equitable considerations was later set forth in Nebraska v. Wyoming, 325 U.S. 589, 618 (194Sj.!' <br />(emphasis added): ., <br /> <br />[I]n determining whether one State is "using, or threatening to use, <br />more than its equitable share of the benefits of a stream, all the <br />factors which create equities in favor of one State or the other must <br />be weighed as of the date when the controversy is mooted." 320 <br />U.S., p. 394. That case did not involve a controversy between two <br />appropriation States. But if an allocation between appropriation <br />States is to be just and equitable, strict adherence to the priority <br />rule may not be possible. For example, the economy of a region <br />may have been established on the basis of junior appropriations. So <br />far as' possible those established uses should be protected though <br />strict application of the priority rule might jeopardize them. <br />Apportionment calls for the exercise of an informed judgment on <br />a consideration of many factors. Priority of appropriation is the <br />guiding principle. But physical and climatic conditions~ the <br />consumptive use of water in the several sections of the river, the <br />character and rate of return flows, the extent of established uses, <br />the availability of storage water, the practical effect of wasteful <br />uses on downstream areas, the damage to upstream areas as <br />compared to the benefits to downstream areas, if a limitation is <br />imposed on the former -- these are all relevant factors. They are <br />merely an illustrative, not an exhaustive catalogue. <br /> <br />"Wasteful uses" were later given careful attention in Colorado v. New Mexico, 459 U.S. 176 (198~), <br />467 U.S. 310 (1984). In the first round of the Vermejo River dispute, the Court relied oil Wyoming <br />v. Colorado, supra, in making it clear that the-availability of "reasonable conservation measures" to <br />reduce both Colorado's proposed upstream diversion and New Mexico's existing uses was an <br />important consideration. 459 U.S. at 186. The Court remanded the case to the Special Master for <br />more specific findings on the conservation issues. On review of those subsequent findings the Court <br />concluded that Colorado had not established by the requisite "clear and convincing evidence" that <br />its proposed decision should be permitted. Colorado v. New Mexico, 467 U.S. 310 (1984). Of <br />particular significance for our topic today, the Court emphasized that the Special Master also erred <br /> <br />306 <br />