Nebraska Says Colorado Broke Compact

LINCOLN, Neb. (DTN) -- The state of Colorado is threatening Nebraska's water supply from the South Platte River by making illegal water diversions and is obstructing Nebraska's efforts to build the Perkins County Canal, the state of Nebraska alleges in a lawsuit filed with the U.S. Supreme Court on Wednesday.

The Supreme Court has jurisdiction in disputes between states and Nebraska said in its complaint the court's intervention is needed to stop Colorado from violating the South Platte River Compact that has been in effect since 1923.

The Perkins County Canal project goes back to a drought in the 1890s when desperate western Nebraska farm families started digging out a canal from the South Platte River in Colorado with plans to irrigate their crops.

The canal needed to go about 65 miles, but the project was scrapped in 1895 after about 16 miles were dug out, according to a historical article on the project in the North Platte Telegraph. In 1923, though, Nebraska leaders made sure to insert a clause in their water compact with Colorado to keep open the option for a canal.

According to information from Nebraska Attorney General Mike Pilger's office, the two states have been negotiating the details of the canal for "many years" but Colorado officials have yet to agree on "basic things" including location and size of the canal or how much water flows through it.

"Colorado has refused to meaningfully engage Nebraska, instead consistently feigning ignorance, demanding more and different types of information, neglecting to apply adequate resources to analyze data sets and water availability scenarios, and refusing to articulate positions on issues critical to design and operation of the canal beyond those that would most obviously delay implementation of the project," Nebraska said in the lawsuit.

Colorado Attorney General Phil Weiser sent a letter to Sedgwick County commissioners where the canal needs to begin, allegedly threatening legal action if Nebraska proceeds with the canal project, the lawsuit said. The letter said Colorado is "prepared to defend its rights under the South Platte River Compact."

Nebraska alleges in the lawsuit that Colorado is "essentially racing to develop as much of the water supply in excess of Nebraska's Article IV right as possible."

So, by developing the water resources before Nebraska can finish the canal, the lawsuit said Colorado is effectively attempting to claim water that the compact reserves for Nebraska.

"Even the Colorado Supreme Court agreed that Colorado's byzantine water scheme makes compliance with the compact virtually impossible," the lawsuit said.

"As early as 2003, the court opined that 'intrastate water administration is beyond the simple priority administration provided for in Article IV of the compact,' so Colorado needed to do more 'in establishing standards for administration within Colorado.' That's far afield from the simple compliance scheme the states agreed to in Article VIII of the compact."

Nebraska said in the lawsuit that for the first time in 50 years, at least one irrigation district in the state was forced to shut down most of its surface water irrigation because of lack of supply.

"Absent intervention, these harms will only get worse," the lawsuit said.

"Colorado has built itself a house of cards and it is now doing everything in its power to keep it erect, including opposing Nebraska's efforts to build the canal."

In 2022, the lawsuit said, there were more than 100 days when flow at the Nebraska/Colorado border fell below the required 120 cubic feet per second.

Nebraska allocated about $600 million to build the canal in Perkins County to secure non-irrigation season water rights. The lawsuit claims Colorado's developments will lead to a 90% reduction in river flows during the non-irrigation season.

Colorado's population in the South Platte River and Denver metro basin is projected to grow from about 3.8 million in 2015 to 6 million by 2050, the lawsuit said, which would create a water supply shortfall of more than 400,000-acre feet for agriculture uses.

"Today's action comes only after we made every reasonable effort to resolve our differences with Colorado," Nebraska Gov. Jim Pillen said.

"Ultimately, Nebraska must push forward to secure our water for future generations. Although we hoped to avoid a lawsuit, we are confident we remain on schedule to complete the Perkins County Canal by 2032."

Read more on DTN:

"Nebraska Digs Out Canal Plan in Compact," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

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