Perkins County Canal faces practical, legal questions

This is the fourth of four articles. It's part of our series: Perkins County Canal: Boon or Boondoggle?

At one level, the argument for building the Perkins County Canal is simple: Nebraska should take advantage of a century-old South Platte River Compact it made with Colorado. That compact says if Nebraska builds the canal, it can take water from the river during the non-irrigation season, ahead of Colorado users who started using the water later than the 1920s.

Nebraska officials say that will keep Colorado from diverting water from the river before it crosses the state line, and let Nebraska use it instead.

But that scenario raises at least two important questions. One is practical – how much water would Nebraska actually get? A second question is legal: what could Nebraska use the water for?

Anthony Schutz, a University of Nebraska law professor who has studied the canal project, says those questions could determine whether it’s worth it to build the canal, at a cost that’s currently estimated at $628 million, but could well rise:

"It will have some benefits. The question of whether it will have enough benefits to justify this sort of investment is a very difficult question," Schutz says.

On the question of how much water Nebraska would actually get, Jesse Bradley, assistant director of the state's Department of Natural Resources, points to a consultant’s estimate.

“We'd be entitled to what water is available to us under the (South Platte River) Compact, which that's what Zenjaro’s estimate comes up with: on average about 80,000 acre feet,” Bradley says.

An acre-foot is the amount needed to cover an acre of ground with 12 inches of water -- or if it’s put to domestic use, to serve maybe 160,000 households.

Jim Yahn, who manages the North Sterling and Prewitt canals and reservoirs in Colorado, doubts that consultant’s estimate for how many acre-feet the canal will bring to Nebraska.

”They're not going to get 80,000 every year. There may be some years they might get 80,000 through the system. But it's probably going to yield a lot less -- half of that,” Yahn says.

Beyond that practical question, there's the legal question of how Nebraska will be able to use the water it gets from the canal.

In a speech in April, Colorado Attorney General Attorney General Phil Weiser called building the canal both unwise and unlikely, adding “Nonetheless, if Nebraska ultimately decides to build this canal, we will ensure that the project is limited to exactly that which was negotiated in 1923 and nothing more.”

Weiser declined a Nebraska Public Media News request for an interview about what he meant.

But Nebraska officials have said the new plan would benefit power generation, endangered species, and municipal users, in addition to irrigation.

Schutz says that’s a far cry from the original proposal to specifically to irrigate land in Perkins County – a county the new version of the canal might not even touch.

“This project is not that project. This project is something much, much different. And so I don't know to what extent Colorado will be able to argue that ‘The right we gave you was to build a project that is not the project you're proposing to be built now and therefore, we don't have to honor any commitment to it,’” he says.

There are also questions about how the canal fits with the Platte River Recovery Implementation Program, an interstate agreement to protect endangered species, and how climate change could play into the project.

Schutz says arguments like this between states sometimes are resolved in negotiations, and that could save Nebraska a lot of money.

“It could be that Colorado comes to the table and says ‘You don't have to build your canal…we can ensure that we'll deliver a certain volume of water or a certain flow of water under certain conditions over time,” he says.

And, if Nebraska tries to condemn land in Colorado, as the compact allows, University of Nebraska ag economics professor Dave Aiken says that could trigger expensive litigation.

“We need to think of this in terms of kind of a political poker game,” Aiken says.

But he says Nebraska has to play its hand skillfully.

“Nebraska has to pursue the project, understanding possibility that… maybe it won't go all the way to the end. Maybe we'll be able to negotiate something with Colorado and come up with something that we can both try to live with. But that strategy doesn't work if you make a half-hearted effort to pursue that project,” Aiken says.

Colorado State Engineer Kevin Rein says Nebraska appears serious about the project.

“Nebraska hasn’t wavered from their absolute commitment to building the canal, and as I understand, contacting landowners, etc. So maybe I shouldn’t continue with the poker metaphor, but if they’re bluffing, they’re bluffing very well,” Rein says.

And Nebraska Assistant Director of Natural Resources Jesse Bradley says a negotiated settlement may be possible, but he’s not counting on it.

“I imagine there’s something that could be offered that could be acceptable, but I don’t think that’s our angle,” he says.

Nebraska has signed a $24 million contract with the firm HDR Engineering to begin design work on the canal. Bradley said he expects the company will identify the canal route and locations for reservoirs by the end of this year, and the state can then begin acquiring land for the Perkins County Canal.

To see part one of our series, with links to the other stories, click here.