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<br />001541 <br /> <br />Over the years, the Supreme Court has typically applied <br /> <br />-~ <br /> <br />priority of appropriation in equitable apportionments of interstate <br /> <br />rivers, but priority of appropriation has not been the only rule <br /> <br />for determining the rights as between States. <br /> <br />In Nebraska v. <br /> <br />. <br /> <br />Wvominq, 325 U.S. 589, 618, (1945) the Supreme Court stated:. <br /> <br />Priority of appropriation is the guiding <br />principle. But physical and climatic <br />conditions, consumptive use of water in the <br />several sections of the river, the character <br />and rate of return flows, the extent of <br />established uses, the availability of storage <br />water, the practical fact of wasteful uses on <br />downstream areas, the damage to upstream areas <br />as compared to the benefits to the downstream <br />areas if a limitation is imposed on the former <br />-- these are all relevant facts. They are <br />merely an illustrative, not an exhaustive <br />catalog. They indicate the nature of the <br />problem of apportionment and the delicate <br />adjustment of interests which must be made. <br /> <br />" <br /> <br />The court in equitable apportionment suits has never reduced junior <br /> <br />upstream existing uses by rigid application of priority of <br /> <br />appropriation. To the contrary, the tendency has been to protect <br /> <br />existing uses wherever possible. <br /> <br />Each of the earlier equitable <br /> <br />apportionment cases had a common thread -- namely, to protect <br /> <br />existing economies to the maximum extent possible. When that could <br /> <br />not be done through strict application of priorities, the supreme <br /> <br />Court has not hesitated to use equitable apportionment as a <br /> <br />flexible doctrine designed to secure a just and equitable <br /> <br />allocation. <br /> <br />See, Richard A. Simms "Equitable Apportionment <br /> <br />Priorities and New Uses" -- Natural Resources Journal, Spring 198~" <br /> <br />p. 549 et ~. <br /> <br />15 <br /> <br />, <br />