600
Opinion of the Court
summary judgment on the injury issue, based on an affidavit by H. Lee Becker, former state hydrologist for Nebraska. See Affidavit of H. Lee Becker ¶ 2 (Apr. 25, 1991) (stating that the project would cause reductions in the average year-end carryover storage of federal reservoirs on the North Platte and that "[s]uch reductions . . . could limit diversions in the [pivotal] reach in a series of dry years"), attached to Nebraska's Response to Wyoming's and Colorado's Motions for Summary Judgment and to Basin Electric's Memorandum in Support Thereof (Apr. 25, 1991).
Nebraska objects strenuously to the Master's interpretation of Paragraph X. The United States has not filed exceptions but agrees that the Master's interpretation is "problematic." Brief for United States Opposing Exceptions 35 (Aug. 17, 1992) (hereinafter U. S. Brief). We, too, are troubled by Paragraph X. As the Master pointed out, the parties to the original proceedings fought mightily over small quantities of water. It is therefore unclear why they and the Court would have meant that the upstream States could make municipal diversions of any magnitude, in derogation of the careful system of interstate priorities established under the decree, without the opportunity for further review.
We nonetheless think it unnecessary to settle upon a definitive interpretation of Paragraph X at this time. The Special Master rightly observed that the Deer Creek Project may not qualify as an ordinary and usual municipal use. Although Wyoming recently has promised to operate the project solely for municipal purposes, both the Final Environmental Impact Statement prepared for the project—which describes a plan of operation that the project may be obliged to follow—and the state permit identify nonmunicipal uses. Nebraska also has presented evidence that the communities that the Deer Creek Project is to serve do not need additional municipal supplies, and that, even if they did, there are more cost-effective alternatives than the proposed reservoir.
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