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State of Nebraska v. State of Wyoming et al. 325 US 589 (1945) 325 US 589
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State of Nebraska v. State of Wyoming et al. 325 US 589 (1945) 325 US 589
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12/11/2014 2:08:31 PM
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Water Supply Protection
Description
North Platte River Decree
State
NE
WY
Basin
North Platte
Water Division
6
Date
7/11/1945
Author
States of Nebraska and Wyoming
Title
State of Nebraska v. State of Wyoming et al. 325 US 589 (1945) 325 US 589
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were designed more for the benefit of Nebraska than of Wyoming lands. Recognition of the priorities <br />interstate makes obvious the propriety of an interstate apportionment. <br />Wyoming objects to this treatment of the Kendrick Project. As we have aid, she contends for a mass <br />allocation of water between Nebraska and Wyoming under which a diversion requirement of 168,000 acre <br />feet should be allotted for the Kendrick Project. Wyoming has presented a detailed analysis of the water <br />supply of the river on the basis of which it is argued that the flow during the period since 1930 is not the <br />true measure of the dependable supply. It is urged that the long -time averages must be considered in <br />computing the dependable supply and if they are and if the storage capacity of these reservoirs is added to <br />the natural flow, the dependable supply will be increased. Moreover, Wyoming argues that no allocation <br />can be made to individual appropriators in any of the States because they are not parties and cannot be <br />bound in their absence. <br />We have carefully considered these contentions of Wyoming and have concluded that they do not warrant a <br />departure from the method of allocation proposed by the Special Master. On the record before us we are not <br />justified in assuming that there will be a greater supply than has been available during the 1931 -1940 <br />period. To base the decree on a larger supply would not be to base it on a dependable supply. Under those <br />conditions Kendrick can store no water. Even with reservoir regulation we are not convinced that Wyoming <br />has shown an adequate supply to justify the allocation she seeks. The combined [325 U.S. 589, 627] <br />storage capacity of the North Platte and Kendrick projects is equal to 175 per cent of the long -time annual <br />average river run -off of the river at Pathfinder. We have here storage capacity in excess of the practicable <br />limits of a dependable supply as that term has hitherto been construed. State of Wyoming v. Colorado, <br />supra. <br />A mass allocation was made in State of Wyoming v. Colorado. But there is no hard and fast rule which <br />requires it in all cases. The standard of an equitable apportionment requires an adaptation of the formula to <br />the necessities of the particular situation. We may assume that the rights of the appropriators inter se may <br />not be adjudicated in their absence. But any allocation between Wyoming and Nebraska, if it is to be fair <br />and just, must reflect the priorities of appropriators in the two States. Unless the priorities of the <br />downstream canals senior to the four reservoirs and Casper Canal are determined, no allocation is possible. <br />The determination of those priorities for the limited purposes of this interstate apportionment is accordingly <br />justified. The equitable share of a State may be determined in this litigation with such limitations as the <br />equity of the situation requires and irrespective of the indirect effect which that determination may have on <br />individual rights within the State. Hinderlider v. La Plata Co., 304 U.S. 92 , 106 -108, 58 S.Ct. 803, 809, <br />810. <br />Nebraska contends that the allotment to Farmers Irrigation District be increased in the seasonal limitation <br />recommended, so that the Warren Act contract which it has may be recognized. But for reasons which we <br />will elaborate the only water subject to the present allocation is natural flow. Contracts requiring the <br />supplementation of natural flow by storage are unaffected. 16 [325 U.S. 589, 628] The United States <br />contends that Nebraska's equitable share of natural flow water should be limited to that which is in fact <br />being diverted and used by any or all of the designated canals within the specified limitations in acre -feet <br />and second -feet. It is said that these provisions of the proposed decree are the operative provisions which <br />determine the amount of natural flow to be passed into the Whalen -Tri -State Dam section of the river. It is <br />said that Nebraska can p rmit, as it has heretofore, water to pass the Tri -State Dam for use below that point <br />even though her equitable share is calculated only on the basis of the needs of appropriators at or above Tri - <br />State. And it is pointed out that the lands served by diversions below Tri -State have no equitable claim on <br />water originating in Wyoming or Colorado, their needs being reasonably met by local supplies. We think, <br />as we will develop later, that the record sustains the conclusion that equitable apportionment does not <br />permit Nebraska to demand direct flow water from above Whalen for use below Tri- State. The reservoirs <br />above Whalen may store water and Kendrick may divert whenever and to the extent that the Nebraska <br />canals at or above Tri -State are not using or diverting natural flow. We do not believe, however, that any <br />revision of this part of the proposed decree need be made. We cannot assume that Nebraska will undertake <br />to circumvent the decree. Moreover, the proposed revision offers difficulties. As Nebraska points out, when <br />a junior Nebraska canal having storage rights is closed to natural flow due to operation of Nebraska <br />priorities, it should be allowed to make up the deficiency in its supply in relation to its requirements by <br />asking for storage water under such contracts as it may have with the United States. The United States does <br />not repudiate those contracts. We conclude that it would unduly complicate the decree to recast its <br />provisions so as to take them into account. If, as the United States fears, the decree is admin- [325 U.S. <br />
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