State of Nebraska v. State of Wyoming et al. 325 US 589 (1945) 325 US 589

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section to section, the number of days required for the water to rravel from one point to another must be known. The time required for water to travel from Alcova to Nebraska varies under different conditions. As an expe t of the Bureau of [325 U.S. 589, 652] Reclamation testified, since that time interval varies with the amount of water flowing in the river, it is difficult to make a formula which reflects it. Indeed U.S. Exhibit 204A does not include the time lag element and therefore does not supply all the data necessary in the segregation of natural flow and storage water at Whalen. But this expert testified that although it had not been possible to reflect the time interval in a formula, an adjustment for it was made: 'Q. -In making this time interval correction, you use your best judgment, based upon your experience on the river and your observation of what conditions were in the river, and, using that judgment, you arrive at the figure for this time interval correction, do you not? A. -Yes, it is a more or less arbitrary correction ....' But while the adjustment is an arbitrary one, corrections can be made and are made so that over a short period of days the segregation is balanced. 23 And the [325 U.S. 589, 653] evidence is that though this adjustment is only approximate and lacks precision, it is sufficiently accurate for administrative purposes. For this expert of the Bureau of Reclamation testified: 'Q. -But, giving consideration to all of these factors, there isn't any way of making any accurate determination, day to day, of the actual balance of natural flow and storage at either Guernsey or the Nebraska- Wyoming line, is there? A. -That term 'accurate' depends upon what is accurate. 'Q. -I mean this, Mr. Gleason -if there is 5,000 second feet of water arriving at Guernsey, is there any way that you can correctly and accurately determine that 2,500 for instance is storage and that 2,500 is natural flow? A. -Oh, I believe that we arrive at a figure that is correct enough for administrative purposes. It must be realized that an error of ten second feet in five hundred is inevitable. All hydro - graphic records are inaccurate to a varying extent, and the computations based upon them, and based upon assumptions as to evaporation in preparing formulae, so the judgment of the men doing it enters into the final figure, and the most we can hope to do is to arrive at daily figures which, summed up over a period of time, will more [325 U.S. 589, 654] closely approximate the accurate figures than the daily figures taken individually do.' No other expert testimony undermines t at conclusion. We cannot conclude that the segregation of natural flow and storage water lacks feasibility. If a comprehensive formula can be agreed upon, it may later be incorporated in the decree. Gauging Stations and Measuring Devices. The Special Master recommends that such additional gauging stations and measuring devices at or near the Wyoming- Nebraska state line be installed as are necessary for effecting the apportionment in the Whalen -Tri -State Dam section of the river and that they be constructed and maintained at the joint and equal expense of Nebraska and Wyoming. The parties take no exception to this recommendation and it will be adopted. Tri -State Dam to Bridgeport, Neb. The Special Master excluded this section of the river from the apportionment on the grounds that its canals are adequately supplied from return flows and other local sources. Nebraska takes exception to that exclusion. She points out that of the 12 canals in this section which bear on our problem, two have Warren Act contracts. Nine are senior to all Wyoming appropriations except the first 103 second feet for the oldest appropriators; only about 200 second feet of Wyoming appropriations are senior to these Nebraska appropriations. Nebraska says that four of these canals had insufficient supplies during the three dry years of 1934, 1936 and 1940. And she points out that during the same periods the nine Wyoming canals, serving substantially the same kinds of areas, had excessive diversions. But it appears that other Nebraska canals in the section had excessive diversions during the same years. And the record supports the conclusion of the Special Master that seasonal supplies are adequate. He explained the shortages as due (1) to lack of coincidence between the time [325 U.S. 589, 655] and quantity of supplies and the time and extent of needs; (2) the excessive diversions by some canals at the expense of others; (3) the withdrawal of water as a matter of priority to supply senior canals in the lower section. The latter he thought would be largely eliminated due to the construction of the Kingsley and Sutherland Reservoirs. Nebraska has not convinced us that there is error in this conclusion. Two of the canals have Warren Act contracts. In the 1931 -1940 period while there was no limitation on Wyoming uses for Nebraska's benefit, the mean divertible flow passing Tri -State Dam for the May- September period was 81, 700 acre feet. This is in addition to the local supplies which even during the drought period were adequate to meet the needs of the canals without calling upon up -river water.