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124 Edward \Xl Clyde ~ 0"> 0"> ('oJ c:> o ment of manmade depletions means that there would be charged against Wyoming's 14 percent all waters diverted that year either for direct flow use or into storage. Either diversion would deplete the river that year at Lee Ferry. It was important that the right of consumptive use, even if so defined, be on a per~annum basis. Express language was placed in the compact to the effect that each state was entitled to a total consumptive use "per annum. II This per~annum apportion~ ment was then defined to be the apportionment of "all man.made depletions, " A similar problem developed in regard to the use by Colorado of water from the Yampa River, and this was compromised by language in Article XIII, which contains a guarantee by the state of Colorado that it will not cause the flow of the Yampa at the Maybell gauging station to be depleted below an aggregate of five million acre-feet for any period of ten consecutive years, At that time Utah hoped for construction of the Echo Park Reservoir, which was downstream from the point where the Yampa enters the Green River, Ultimately, Echo Park was abandoned because of environmental objections. Instead, storage was constructed at Flaming Gorge, which is upstream from the Yampa, 50 that this guarantee may not function 35 intended. An embryo dispute may be developing between Colorado and Utah over the use of the water from the White River, The compact does not address the White River, and the extent to which the waters of the White River are yet to be apportioned to each state is unknown. Both states plan to develop the White River for oil.shale production, and the stream will need to be apportioned, The December 1982 decision of Colorado v, New Mexico" is of considerable interest here. In its decision, the U.S. Supreme Court recognized that eoch stote on an interstate stream has a federal common-law right to its equitable share of the water, Past decisions of the U,S, Supreme Court have placed emphasis on the priority of existing rights where the contesting states themselves had each adopted the priority system, New Mexico established that its citizens had alreody appropriated all of the water of the stream in question and, under the doctrine of prior rights,. should be protected in their use, Under Hinderlider v, LaPlala River & Cherry Creek Ditch Co. lO (not cited in this recent case), the Supreme Court had made it crystal clear thot state appropriations could not exceed that state's equitable share of the river, If any state had granted ,. - -~ L '.1'_ -; 1(! ~- 'r::-' ," },' " .:,. r .\ !- I" \, " , II " i" i r.,. '; ;.' ,~ . ,:- I I!. " I. , , I; " j, ,. I" . . RESPONSE TO PROLONGED DROUGHT lZ5 permits which purported to allocate more than its eqUitable shate, the excess permits would have to yield to the rights of the sister Mate, as they are ultimately fixed by compact, by Congress, or by court decision, The U,S. Supreme Court described the equitable apportionment doc- trine and stated that even between 'tates, both of which follow the prior appropriation doctrine, prior rights are not to be the sole test. The Special Master had found that the appropriators in New Mexico were using water wastefully, The U,S, Supreme ~ourt ,ent the cose back for more definitive finding' on these wasteful uses, but in doing so it indicated that the prior appropriation of all of the water by New Mexico's users will not be permitted to deprive Colorado of an eq- uitable share, There are other clauses of the Upper Basin compact which addtess the problems of particular trlbucaries. These, too, will come into play in the event of a prolonged drought. JI The Upper Basin compact deals in some detail with the problems of meeting the Upper Basin's obligotion to deliver 75,000,000 acre- feet during each consecutive ten-year period. With the river fluctuating between 4,400,000 and 21,900,000 acre-feet per annum, it was ob- vious that in addition [0 carryover storage, it might be necessary during drought years to curtail use of water in the Upper Basin to assure that the Colorado River ot Lee Ferry would not be depleted below the ten- year minimum thus guaranteed by the states of the Uppet Division, Therefore, it was necess3ry, or at least desirable, to write into the compact language to govern the curtailment of use, and this was done, Article IV provides thot if any state (or states) of the Upper Division, in the ten years immediately preceding the year in which curtailment was necessary, shall have consumptively used more water than it was (or they were) entitled to use undet the apportionment made by the compact, then those states would replace this overdraft to the extent necessary to meet the Lee Ferry obligations before other states were called upon to curtail. If the replacement of the overdraft, if any, were not sufficient to assure deliveries, then Article IV(c) provides thot the states of the Upper Division will curtail their use of water on a prorated basis according to the water actually used during the WOlter year immediately preceding the year in which the curtail- ment became necessary. However, in computing the amount of water used, all lIses of water under rights perfected prior to November 24,