Nebraska announces suit against Colorado over South Platte water

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Nebraska on Wednesday asked the U.S. Supreme Court to rule that Colorado is depriving it of water and blocking Nebraska from building a canal to alleviate the problem.

Nebraska’s complaint accuses Colorado of failing to deliver water it owes Nebraska under the 1923 South Platte River Compact, and trying to block Nebraska from building a canal to assure future water supplies.

The Compact essentially requires Colorado to allow 120 cubic feet per second across the state line into Nebraska during the irrigation season of April 1 to Oct. 15 every year. Nebraska says Colorado is not meeting that obligation.

The Compact also allows Nebraska to divert 500 cubic feet per second in the non-irrigation season, but only if it builds the canal.

Gov. Jim Pillen said Colorado is being selfish about water.

“They want it all. They have no interest in anything being fair in this,” Pillen said.

Colorado Gov. Jared Polis responded, saying Colorado has always complied with the compact and predicting both states would now waste time and money in court.

Nebraska has set aside $628 million to build the so-called Perkins County Canal, which would bring water from the South Platte River in Colorado to western Nebraska.

The compact lets Nebraska condemn land in Colorado for the project, and Nebraska Attorney General Mike Hilgers said he wants the Supreme Court to rule on how to do that.

“We are not aware of any other compact that gives one state, in this case, Nebraska the right of eminent domain in another state, in this case, Colorado. The 1923 compact gave Nebraska that right. There's a threshold question: Where do we exercise that right if we have to exercise eminent domain? Do we do it in federal court in Colorado? Do we do it in water court in Colorado? Do we do it in state court? There's a disagreement between Nebraska and Colorado as to even where to start,” Hilgers said.

Hilgers said other disagreements involve the size of the proposed canal and the exact route it can take.

Colorado Attorney General Phil Weiser called the canal a “boondoggle,” and urged Nebraska to cooperate in finding a solution.

Pillen said the lawsuit comes, “only after we made every reasonable effort to resolve our differences with Colorado. 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.”

That is four years later than Nebraska has previously estimated the canal would be completed.

“Nebraska has now set in motion what is likely to be decades of litigation," said Colorado Attorney General Weiser. "And if, after decades of litigation, the court allows Nebraska to move forward with its wasteful project, Nebraska’s actions will force Colorado water users to build additional new projects to lessen the impact of the proposed Perkins County Canal.

“When the dust finally settles, likely over a billion dollars will have been spent—tens of millions of that on litigation alone—and no one in Nebraska or Colorado will be better off."

A look at past coverage of the proposed Perkins County Canal project:

‘None of them want to sell to Nebraska’: Colorado landowners unite as Nebraska threatens eminent domain for canal project

Nebraska Department of Natural Resources official says Colorado landowners seem uninterested in canal negotiations

Train of bills temporarily sidetracked, Perkins diversion heard

Colorado official threatens legal action over Perkins County Canal

Nebraska seeks Colorado canal land, school choice fight resumes

Nebraska moving ahead with Perkins County Canal plans despite Colorado’s concerns

Colorado wary of Nebraska’s plans for Perkins County Canal

Pillen: 'I'll abandon Perkins Canal if legal costs get too high'

Nebraska begins buying Colorado land for Perkins County Canal