Why Nebraska's Legal Argument for Canal Might Not Hold Water

Feb. 18, 2022, 6 a.m. ·

river with sandy brown pieces of land with weeds in the middle of it and brown trees and a field behind it.
The South Platte River near Roscoe, Nebraska looking downstream. (Photo by Fred Knapp, Nebraska Public Media News).

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When unveiling the Perkins County Canal project in January, Attorney General Doug Peterson said Nebraska’s case is crystal clear.

“The compact, I don’t think in today’s day and age of lawyers, could be done in six pages, but it’s an excellent compact, in the fact that it really clearly sets forth the terms,” Peterson said.

That was the last time the attorney general commented on the legality of the proposed canal, which was approved by both Nebraska and Colorado in 1923.

The attorney general and Natural Resources Director Tom Riley were scheduled to meet with the Appropriations Committee Wednesday to discuss the legal implications of the canal.

That meeting got scrapped when Chairman John Stinner refused the office’s request to close the meeting off from journalists.

Suzanne Gage, a spokesperson for Peterson’s office, said that decision was made due to “pending or imminent litigation associated with these compacts.”

The attorney general’s office and Riley then briefed the Natural Resources Committee Thursday, once the group voted for a closed session.

Nebraska Public Media News asked Gage if the state knew of any impending legal action surrounding the canal. The office hasn't responded.

Water Rights Unclear

Since its proposal in January, the canal's most consistent criticism is if the water the system would provide is worth the cost. It’s now estimated at $503 million.

Now there’s a bigger problem: the legality of the century-old canal.

“Aside from the compact, there are a number of water law questions that come up,” Anthony Schutz said Tuesday.

Schutz, an associate professor of law at the University of Nebraska, briefed the Legislature’s Appropriations Committee on the water law side of the equation in an open meeting.

The law professor said even if there is enough water to fill the canal system, Nebraska’s rights over that water aren’t clear.

“I don’t know who’s going to have rights to that water. The 1921 priority date is for administration within Colorado, but that 1921 priority date doesn’t necessarily carry into Nebraska,” Schutz said.

This is where Nebraska could get thrown into the deep end if the canal is approved, permitted, and constructed.

“There are a lot of senior users in the basin who would basically be able to take the water, so I’m not even sure legally if this canal would really be able to appropriate water out of the South Platte,” Schutz told the committee.

Litigation, Court Tie-Ups Likely

Among a handful of technical debates and unknowns laid out this week, there’s at least one consensus.

“Colorado will sue. Any water lawyer will tell you that,” Robin Kundis Craig said.

Craig is the Robert C. Packard Trustee Chair in Law at the University of Southern California Gould School of Law.

“Colorado is not shy about suing over water issues and has done so many times. Nebraska and Colorado have a particularly – litigation-filled history of sharing waterways,” Craig said with a laugh.

The water law professor said the compact itself is very cut and dry. It’s a feature that suits the canal’s supporters, such as Governor Pete Ricketts and Speaker of the Legislature Mike Hilgers.

“Nebraska actually has a pretty good argument, because it’s there," Craig said. "These cases, when they get litigated, go directly to the U.S. Supreme Court, because it’s one state suing another. The U.S. Supreme Court tends to interpret these compacts like contracts between the states.”

The last time Nebraska took a stab at this project, environmental protections shut it down, and that could be the case this time around.

“The big issue is going to be the federal Endangered Species Act and the Colorado version of it, because a lot of the South Platte River is what’s known as ‘critical habitat’ under the Endangered Species Act for the whooping crane,” Craig said.

But with the added emphasis and urgency behind Governor Ricketts’ call to conserve water, the state could attempt to argue the water Nebraska wants would better serve humans than species like the whooping crane.

Craig said Nebraska would need to appeal their case to the Endangered Species Committee – informally known as the ‘God Squad.’

The committee, made up of Cabinet-level officials, considered a similar exemption once in the 1970s to Wyoming, despite rapidly declining whooping crane populations in Nebraska.

In that dispute, Nebraska was on the side of the whooping crane. The states eventually came to an agreement for a Wyoming power plant’s use of water, as long as significant protections were put into place for the endangered species downstream.

Other Options

This time around, with climate change and habitat conversations more prominently on the table, Nebraska's argument, Craig said, will need to be compelling.

“If Nebraska’s primarily doing this because they’re afraid that Colorado’s going to ‘take their water,’ that’s probably not going to be good enough,” Craig said.

Nebraska believes its case is solid – possibly solid enough to survive permit processes, a decade in court, and property right fights.

Craig said considering the long legal battle in store, Nebraska may want to allocate that $503 million toward more effective, and potentially less litigated, options.

"Is it still going to be worth it ten years from now? Even if it’s worth it now, which is also seriously in doubt,” Craig said.

Schutz said Nebraska should consider bolstering the departments that strengthen Nebraska's water infrastructure and operations.

"For me, the elephant in the room is a need to invest in our state executive branch institutions. The Department of Natural Resources and the Nebraska Department of Environment and Energy are not what they once were. They don’t have the staff they used to have or the capacity to do what we expect them to do in serving the public," Schutz said.

Schutz also pointed to bolstering the state's Water Sustainability Fund, which has been chopped down since 2014 to $11 million. The professor said Nebraska also needs to better address nitrates in groundwater. Early study data from the University of Nebraska Medical Center shows a link between agriculture fertilizer in drinking water and pediatric cancer in rural areas.

"These are the water problems that, in my opinion, are the most urgent needs," Schutz said.

Nebraska Public Media's Fred Knapp contributed to this reporting.