The state of Nebraska is suing Colorado, escalating a dispute between the two states over South Platte River irrigation water.
The complaint filed in the U.S. Supreme Court by Nebraska Attorney General Mike Hilgers accuses Colorado of breaching a 102-year old compact by allowing irrigation season diversions for storage, which "effectively removed water from the river otherwise available to Nebraska." A fact sheet put out by Hilgers' office says Colorado allows "junior" water users to access this water.
Hilgers also takes issue with Colorado's opposition to Nebraska's plan to build the Perkins County Canal, which would bring South Platte River water into the state during the non-irrigation season. He claims that Colorado is blocking the canal while arguing that Nebraska cannot access certain water without its completion.
"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 in a press release.
The 1923 South Platte River Compact guarantees Colorado will pass a mean flow of 120 cubic feet per second to Nebraska during the irrigation season, and gives Nebraska the right to build a canal to divert 500 cubic feet per second during the non-irrigation season, which runs from Oct. 15 to April 1.
However, the fact sheet states Colorado "currently pumps water in the winter to send back to the river to make up for summer overuse under a theory that the water reaches Nebraska in time for the next irrigation system," which it argues "deprives Nebraska of water when Nebraska's crops are in greatest need."
The lawsuit says both states are now at an impasse over the terms of the compact.
"Today’s action comes only after we made every reasonable effort to resolve our differences with Colorado," Nebraska Governor Jim Pillen said in a press release. "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.”
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In a statement, Colorado Attorney General Phil Weiser criticized the lawsuit saying "It’s unfortunate that Nebraska leaders decided to put politics above farming and ranching communities and the regional agricultural economy. The failure to look for reasonable solutions and to turn to litigation is both unfortunate and predictable given the misguided effort driving the proposed canal."
Weiser said the lawsuit will likely result in decades of litigation and may eventually 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," Weiser said.
Former Nebraska Governor Pete Ricketts announced plans to build the canal in early 2022 after Colorado released a 2021 Basin Implementation Plan that added 185 new projects for consideration that would have cost more than $9.8 billion to implement.
In 2023, the Nebraska legislature approved $574 million for the canal's construction, according to the lawsuit. The state has so far bought a "limited amount" of Colorado land, designed 30% of the canal and "continues to address related legal, regulatory and permitting issues," the lawsuit says.
While the compact gives Nebraska the right to build a canal, Colorado won't agree on "such basic things as the location or size of the canal, or how much water can flow through it," the fact sheet claims.
"It appears Colorado is gearing up for a protracted legal battle to be fought directly and by proxy through its water users and constituents, even though they all are bound by the Compact and all conflicting state laws are subordinate to it," the lawsuit says.
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Editor's note: This story was updated to include comment from Colorado Attorney General Phil Weiser.
