Nebraska’s Perkins County Canal case going before the U.S. Supreme Court

The U.S. Supreme Court has agreed to hear Nebraska’s case against the State of Colorado that claims Colorado has violated the South Platte River Compact and has improperly interfered with Nebraska’s right to develop the Perkins County Canal.

“Nebraska will finally have the opportunity to prove that Colorado has violated the Compact and to hold Colorado accountable for depriving Nebraska of water that rightfully belongs to our state,” Attorney General Mike Hilgers said Monday in a news release.

State officials claim Colorado has violated the compact by allowing junior water users to intercept water that belongs to Nebraska during the irrigation season. Nebraska also wants the U.S. Supreme Court to weigh in on whether or not Colorado has interfered with Nebraska’s right to construct and operate the Perkins County Canal – a project that was mentioned in the century-old compact and was recently resurrected in 2022.

“Nebraska is determined to preserve and protect every drop of water to which it is entitled under the Perkins County Canal Compact. Today’s order from the U.S. Supreme Court makes clear that Nebraskans will have a venue for these important claims,” Gov. Jim Pillen said in a news release. Pillen was referring to the South Platte River Compact.

The U.S. Supreme Court will appoint a special master to oversee the proceedings, conduct hearings and submit recommended findings to the court.

In May, a top federal lawyer said the court should consider Nebraska’s case against Colorado over irrigation water but not over the proposed Perkins County canal.

The recommendation in a brief from Solicitor General John Sauer, the government’s lead lawyer before the Supreme Court, called Nebraska’s claim that Colorado’s not delivering enough water from April 1 to Oct. 15 a “classic case” the court should have a special master consider.

But it called Nebraska’s argument that Colorado’s blocking a canal to bring in water from the South Platte River during the non-irrigation season “unripe” and said the court should not take that part of the case.

Reacting to the Supreme Court's decisiion to hear Nebraska's case, Colorado Attorney General Phil Weiser said “Colorado is complying with the South Platte River Compact and not interfering with Nebraska’s efforts to build the Perkins County Canal. Today’s court decision merely opens the door for Nebraska to bring its claims against Colorado. Nebraska’s burden to prove those claims is incredibly high and we will vigorously defend Colorado’s full entitlements under the compact.”

Several experts in natural resources litigation have wondered if Nebraska’s arguments could hold water, since Nebraska’s rights over that water aren’t clear. The State of Colorado has called Nebraska’s plan a “boondoggle,” saying the canal would be a huge waste of Nebraska taxpayer money and is “unlikely to ever be built.”