Nebraska officials Wednesday announced a lawsuit against the state of Colorado to clear the way for construction of the Perkins County Canal, a contentious proposal to divert water from the South Platte River in Sedgwick County to a storage facility on the Nebraska side of the state line.
The lawsuit was filed in the U.S. Supreme Court on Wednesday and claims Colorado is threatening Nebraska’s water supply through “unlawful water diversions” that have deprived Nebraska’s farmers of water.
Nebraska’s Western Irrigation District, a beneficiary of the compact, was recently forced to shut off the majority of its surface water irrigation due to lack of supply from the South Platte River, according to the lawsuit.
“These breaches have harmed Nebraska and pose a significant, ongoing threat to Nebraska, from its agricultural economy to the water security of its major population centers,” the lawsuit said.
The complaint also alleges Colorado is obstructing Nebraska’s efforts to build the Perkins County Canal.
In February, landowners in Sedgwick County, where the river leaves Colorado and flows into Nebraska, received notices of condemnation, giving them 90 days to accept a buyout from the state of Nebraska or face eminent domain.
The letters escalated what was until then a simmering dispute between the states over enforcement of the South Platte River Compact, an agreement ratified by the governors of Colorado and Nebraska in 1923.
The compact guarantees Nebraska a flow of 120 cubic feet per second from April 1 to Oct. 15 where the South Platte leaves Colorado just northeast of Julesburg. For the other half of the year, the compact allows Nebraska 500 cubic feet per second through a canal that would pull from the river near Ovid. Without a canal, Colorado gets first dibs on the South Platte’s winter flow.
Historically Colorado has sent significant winter water across the state line, but the state’s rapid development in recent years spooked officials in Nebraska.
The century-old compact permits Nebraska to use eminent domain to build the canal, but is unclear about whether eminent domain can be used in another state.
The lawsuit said the states are at an impasse about key terms in the compact.
Earlier this year, Attorney General Phil Weiser called the move onto Colorado soil “novel” and said that he was willing to challenge the move by Nebraska in court.
It appears he will get his chance.
In an emailed statement Wednesday, Weiser said that the lawsuit is “unfortunate and predictable given the misguided effort driving the proposed canal.”
“Nebraska has now set in motion what is likely to be decades of litigation. 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,” Weiser wrote.
Nebraska has been inching toward building the canal since April 2022, when the state legislature approved the $500 million project, citing fears about Colorado’s increased water use.
At that point, Weiser started making trips to the northeastern corner of Colorado to brief people about the project, under the impression that it was unlikely to move forward based on the cost, the cross-border dealings and evaluations by a state water engineer.
“I also said I think this feels more like a political stunt. It doesn’t make sense,” Weiser told The Colorado Sun in February.
Nebraska hopes to complete the Perkins County Canal by 2032.
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