by: George Lauby 

Nebraska is suing Colorado over the water in the South Platte River in a battle that is expected to be decided by the U.S. Supreme Court, state officials announced July 15.

The lawsuit aims to clear the way for construction of the Perkins County Canal in eastern Colorado and western Nebraska, Attorney General Mike Hilgers and Gov. Jim Pillen said.

State officials are determined to build the canal, capping a dispute that began in the late 1800s.

The dispute continues.

In the late 1800s, a group of western Nebraska landowners faced a severe drought that was killing their crops. They started digging a canal in eastern Colorado to divert some of the water in the South Platte River to Nebraska.

They made a start, but didn’t have enough money to finish, and when the drought ended, time passed and the work was left behind.

However, in the 1920s, Nebraskans mounted a legal push to claim a fair share of water from the South Platte River, in view of development along the S. Platte east of Fort Morgan.

Nebraska’s assertions were formalized in a compact (agreement) with Colorado in 1923. The Compact was approved by both state legislatures and ratified by Congress in 1926. It has the force of federal law, Hilgers said.  

The compact provided Nebraska with a certain amount of water from the S. Platte during the winter if the Perkins County Canal was built, and also with a certain amount during the summer, regardless of the canal’s existence.

State officials point out that Colorado has fallen behind in their obligations.

Twin Platte NRD Executive Director Kent Miller said Nebraska is legally entitled to 120 cubic feet per second of water during the summer months for Nebraska’s western irrigation district in the S. Platte valley in Keith County. Nebraska only receives about 60% of that amount.

And, in the winter, Nebraska is entitled to 500 cfs if the Perkins County Canal were in operation.
In 100 years, Nebraska has never moved forward to build the canal. In the meantime, Colorado appropriated more river water to farms and urban developments along the S. Platte, draining the river and intensifying the need for Nebraska to be more assertive.

In 2022, Gov. Pete Ricketts stepped up and urged the state legislature to appropriate money to build the canal. Initially, about $50 million was appropriated for the preliminary study and designs. Later, the state Legislature allocated much more, totaling $628 million for design and construction.

Miller said the Perkins County Canal would need to be more than half the size of the existing NPPD canal. That canal supplies Sutherland Reservoir and Lake Maloney and carries 1,800 cfs. The Perkins County Canal would be built to hold up to 1,000 cfs, providing double capacity to handle floods.

It the canal averaged 500 cfs for 5.5 months of winter, that would add up to 7.5 times the average amount of water in Lake Maloney south of North Platte.

Those figures are part of the design phase of the project, which has been underway for more than two years. Miller said 60% of the design is complete. Designers are now working to iron out details with the U.S. Army Corps of Engineers.

State officials say if no action is taken, Colorado will continue to use more river water, and the S. Platte will run dry in the winter. That would have dire consequences. The effects would not only be felt in western Nebraska, but as far east as the capital city of Lincoln. Officials say 7% of Lincoln’s water comes from the South Platte.

The Perkins County canal would start near Ovid, Colo. and run about 18 miles in Colorado, entering Nebraska at the state line. A couple holding reservoirs are envisioned in western Nebraska, which would release water back into the S. Platte in Nebraska during the summer.

Miller has been aware of the Perkins County Canal provision in the S. Platte River compact for more than 25 years, as he noted Colorado’s failure to live up to the terms of the compact. He was thrilled when he learned that Nebraska would exercise its authority to build the canal.

With designs for the canal entering the final stages, state officials begam talking to Colorado residents about right of way agreements, that is, until the state of Colorado advised residents not to cooperate with Nebraska.

Now, Nebraska seeks an enforcement mechanism to breathe life into the construction. That’s why they filed the lawsuit and expect a decision from the Supreme Court.

It is anticipated that the legal battle will take about three years. Nebraskans hope to have the design 100% complete, so construction bids can be let when the Supreme Court rules.

Construction is expected to take about five years. The goal is to have the canal operating in 2032, state officials say.

The U.S. Supreme Court has original jurisdiction regarding disputes between states, the announcement said. The intervention is needed to stop Colorado’s violations of the river compact and resolve what has turned into an irreconcilable conflict over the design and operation of the Perkins County Canal.

Hilgers said Nebraska’s lawsuit has two basic elements:

• It challenges Colorado’s ongoing, unauthorized overuse of Nebraska’s water during the summer and the rationale Colorado uses to justify it. 
• It challenges Colorado’s efforts to obstruct the construction of the Canal and prevent Nebraska from accessing the additional water Nebraska is entitled to in the South Platte River Compact.

“Water is the essential lifeblood of Nebraska’s economy, and it’s my goal to protect one of the state’s most important assets,” Hilgers said.

Pillen said the lawsuit comes after Nebraska made every reasonable effort to resolve differences with Colorado. 

“Ultimately, Nebraska must push forward to secure our water for future generations,” he said.