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<br />new apportionments (as of nonirrigation-season flows) alter this
<br />conclusion. Here, Nebraska seeks only to have us enjoin discrete
<br />Wyoming developments. If Nebraska is to have a fair opportunity
<br />to present its case for our doing so, we do not understand how we
<br />can preclude it from setting forth that evidence of environmental
<br />injury, or consign it to producing that evidence in some other
<br />forum, since this is the only Court in which Nebraska can challenge
<br />the Wyoming projects. And as for Wyoming's argument that any
<br />proof of environmental' injury that Nebraska will present will be
<br />highly speculative, the point is urged prematurely. Purely
<br />speculative harms will not, of course, carry Nebraska's burden of
<br />showing substantial injury, but at this stage we certainly have no
<br />basis for judging Nebraska's proof, and no justification for denying
<br />Nebraska the chance to prove what it can.
<br />
<br />The Court in other interstate water cases not involving equitable apportionments has recognized a
<br />state's duty (1) to protect other states against floods resulting from artificial changes in an upstream
<br />watershed, North Dakota v. Minnesota, 263 U.S. 365, 374 (1923) (emphasis added) ("[W]here one
<br />state, by a change in its method of draining water from lands within its border, increases the flow
<br />into an interstate stream, sQrthat its natural capacity is greatly exceeded and the water is thrown upon
<br />the farms of another state, the latter state has such an interest as quasi sovereign in the comfort,
<br />health, and prosperity of her farm owners that resort may be had to this court for relief."), and (2)
<br />to avoid polluting the water used by a downstream state. Missouri v. Dlinois, 200 U.S. 496 (1906).
<br />Although the Court later concluded that the Clean Water Act has fully occupied the field of interstate
<br />water pollution, 11 it is reasonable to assume that the Court is nevertheless free, and indeed likely,
<br />to consider the impact of upstream state actions on the quality of water downstream in an equitable
<br />apportionment case. What good is an allocation of unusable water?
<br />
<br />While state and federal law supply numerous examples of the importance of watershed protection,
<br />international law, which the Court has repeatedly noted as a source of law it also applies in equitable
<br />apportionment cases, is far ahead of the Court in expressly imposing watershed protection and
<br />managemen~ obligations on nations sharing "international watercourses."12 For example, the U.N.
<br />. Convention on the Law of Non-Navigational Uses ofInternational Watercourses (1997) includes
<br />among "factors relevant to equitable and reasonable utilization" of international watercourses
<br />"conservation, protection, development and economy of use of the water resources of the
<br />watercourse" (article 6(f)), imposes a duty on international watercourse states to "cooperate on the
<br />basis of sovereign equality, territorial integrity, mutual benefit and good faith in order to attain
<br />optimal utilization and adequate protection of an international watercourse" (article 8(11)), and
<br />: provides that states "shall, individually and, where appropriate, jointly,protect and preserve the
<br />. ecosystems of international watercourses," including "prevention, reduction and control of pollution"
<br />21), prevention of the introduction of harmful "alien or new species" (article 22), and
<br />
<br />,llMilwaukee v. Illinois, 451 U.S. 304 (1981); Arkansas v. Oklahoma, 503 U.S. 91 (1992).
<br />
<br />12Delph Carpenter of Colorado, the acknowledged father of the first interstate water allocation
<br />. Compact, the Colorado River Compact of 1922, conceived of the idea based on internationallaw.See
<br />tyler, Delphus Emory Carpenter and the Colorado River Compact of 1922, 1 U Denv. Water
<br />228 (1998).
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