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being a proper measure of the available supply. 'An intending irrigator, acquiring a water right based on
<br />such a measure, would be almost certainly confronted with drought when his need for water was greatest.
<br />Crops cannot be grown on expectations of average flows which do not come, nor on recollections of
<br />unusual flows which have passed down the stream in prior years.' 259 U.S. page 476, 42 S.Ct. page 561.
<br />On this record [325 U.S. 589, 621] we cannot say that the dependable flow is greater than the average
<br />condition which has prevailed since 1930. For reasons which we discuss at a later point in this opinion, we
<br />deal only with natural flow, not with storage water as Wyoming urges. On the basis of the conditions which
<br />have obtained since 1930, it is plain that the natural flow of the river during the irrigation has been over -
<br />appropriated.
<br />Colorado. As we have noted, there are presently under irrigation in this section of the river 131,800 acres
<br />which consume (including reservoir evaporation) 98,540 acre feet annually. Exportations from the basin
<br />amount on the average to 6,000 acre feet, making the total annual depletion 104, 540 acre feet. There are,
<br />as we have seen, additional demands made by Colorado for future projects. The Special Master
<br />recommended that Colorado be enjoined (a) from the diversion of water for the irrigation in North Park of
<br />more than 135,000 acres of land, (b) from the accumulation in storage facilities in North Park of more than
<br />17,000 acre feet between October 1 of any year and September 30 of the following year, and (c) from the
<br />transbasin diversion out of North Park of more than 6,000 acre feet between October 1 of any year and
<br />September 30 of the following year. Colorado excepts to these proposals. But with minor exceptions which
<br />we will note, we do not believe those exceptions are well taken.
<br />We are satisfied that a reduction in present Colorado uses is not warranted. The fact that the same amount
<br />of water might produce more in lower sections of the river is immaterial. State of Wyoming v. Colorado,
<br />supra, page 468, 42 S.Ct. page 558. The established economy in Colorado's section of the river basin based
<br />on existing use of the water should be protected. 14 Cf. State of Colorado v. Kansas, supra, 320 U. S. page
<br />394, 64 S.Ct. page 181. Appropriators in Colorado junior to Pathfinder have made out -of- [325 U.S. 589,
<br />622] priority diversions of substantial amounts. Strict application of the priority rule might well result in
<br />placing a limitation on Colorado's present use for the benefit of Pathfinder. But as we have said, priority of
<br />appropriation, while the guiding principle for an apportionment, is not a hard and fast rule. Colorado's
<br />countervailing equities indicate it should not be strictly adhered to in this situation. Colorado asserts,
<br />however, that the limitation of transbasin diversions to 6,000 acre feet a year should not be imposed. Her
<br />point is that 6,000 acre feet represent merely the average annual transbasin diversions, that annual
<br />diversions have exceeded that amount, and that a limitation of 6,000 acre feet annually will interfere with
<br />existing Colorado users. We think the point is well taken. The decree will enjoin Colorado exportations in
<br />excess of an average of 6,000 acre fee computed over a period of ten years. 15
<br />But Colorado's other exceptions to the suggested limitations to be placed on her use of the water of the
<br />North Platte are not sustained. The principal argument is that on the basis of the long time averages there is
<br />enough water to go around, that no limitation on use is warranted, and that the proposal limitation is a
<br />deprivation suffered by Colorado for the benefit of down stream users. But that argument fails if we
<br />assume, as we must on the evidence before us, that the dependable supply does not exceed the amount of
<br />water which has been available since 1930. Nor can we see how existing projects can be protected on the
<br />basis of the 1931 -1940 supply if additional projects in Colorado are permitted. If at any time additional
<br />projects are threatened in down - stream areas, Colorado may make complaint. If conditions of supply
<br />substantially change, any party can apply for modification of [325 U.S. 589, 623] the decree. The decree
<br />will not necessarily be for all time. Provision will be made for its adjustment to meet substantially changed
<br />conditions. Nor will the decree interfere with relationships among Colorado's water users. The relative
<br />rights of the appropriators are subject to Colorado's control.
<br />Colorado finally says that the proposed restriction on her uses of the water violate the Act of August 9,
<br />1937, 50 Stat. 564, 595, which appropriated funds for the Kendrick Project. That Act provided that'in
<br />recognition of the respective rights of both the States of Colorado and Wyoming to the amicable use of the
<br />waters of the North Platte River, neither the construction, maintenance, nor operation of said (Kendrick)
<br />project shall ever interfere with the present vested rights or the fullest use hereafter for all beneficial
<br />purposes of the waters of said stream or any of its tributaries within the drainage basin thereof in Jackson
<br />County, in the State of Colorado, and the Secretary of the Interior is hereby authorized and directed to
<br />reserve the power by contract to enforce such provisions at all times.' But that Act does not limit or restrict
<br />Nebraska's or Wyoming's claim for apportionment against Colorado. Moreover, the Kendrick Project under
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