Nebraska state leaders filed a lawsuit against Colorado, asking the U.S. Supreme Court to uphold the state’s rights under a century-old water compact and clear the path for construction of the long-planned Perkins County Canal.
Nebraska Attorney General Mike Hilgers and Gov. Jim Pillen (R) announced the legal action, stating that Colorado violated the terms of the 1923 South Platte River Compact, which was ratified by Congress in 1926. According to Nebraska’s complaint, Colorado’s actions threaten the state’s water security and harm key sectors, including agriculture and municipal supply.
“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 statement.
The lawsuit contends that Colorado has unlawfully diverted as much as 1.3 million acre-feet (an acre-foot is 325,851 gallons) of water that should have reached Nebraska, causing a shutdown of the Western Irrigation District’s surface water operations due to insufficient flows from the South Platte River. The suit also claims Colorado has simultaneously blocked efforts to construct the Perkins County Canal—a project contemplated by the compact.
According to court documents, Nebraska’s lawsuit presents complex legal questions that can only be resolved by the U.S. Supreme Court. Central to the case is a rare provision in the South Platte River Compact that grants Nebraska the authority to exercise eminent domain within Colorado. The case also raises questions about the appropriate legal forum for such an interstate eminent domain action, and how Nebraska can enforce its water rights against what it alleges is Colorado’s overuse. Additionally, the Supreme Court is asked to determine whether Nebraska can construct the Perkins County Canal without obstruction from Colorado.
The lawsuit asserts efforts to negotiate key terms of the compact have reached a standstill, with both states unable to resolve their differences through diplomacy.
“Today’s action comes only after we made every reasonable effort to resolve our differences with Colorado,” Pillen said. “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.”
In response to Nebraska’s lawsuit, Colorado Attorney General Phil Weiser criticized the move as politically motivated and counterproductive.
“It’s unfortunate that Nebraska leaders decided to put politics above farming and ranching communities and the regional agricultural economy,” Weiser said.
Weiser warned that Nebraska’s legal action could trigger decades of costly litigation and ultimately harm both states. He urged Nebraska to reconsider and instead work toward “a durable and thoughtful solution” through collaboration, which he said would better support the long-term resiliency and prosperity of agricultural communities in both northeast Colorado and northwest Nebraska.
Compact and canal
The South Platte River Compact requires Nebraska and Colorado to jointly operate an Interstate Station near Julesburg, CO, to measure the amount of water flowing from Colorado into Nebraska. The compact divides the year into an irrigation season (April 1 to Oct. 15) and a non-irrigation season (Oct. 15 to April 1). During the irrigation season, if water levels drop below 120 cubic feet per second, Article IV of the compact requires Colorado to halt diversions from the lower section of the river for water rights with priority dates after June 14, 1897.
Article VI of the compact allows Nebraska to construct a canal originating in Colorado to divert water during the non-irrigation season for use in Nebraska, although it does not specify design details. To carry out the canal project, Nebraska is authorized under Article VI of the compact to acquire land, easements and rights of way in Colorado through purchase, prescription or eminent domain. While Nebraska has tried to acquire land through voluntary agreements with Colorado landowners, it has had little success.
Nebraska now seeks to use eminent domain, but the compact does not identify a forum for such proceedings. Unlike more recent interstate compacts, the South Platte River Compact does not establish a commission or adjudicative body to resolve disputes between the states. As a result, the U.S. Supreme Court is Nebraska’s only available forum for seeking timely and meaningful relief.
The Perkins County Canal, originally started in the 1890s but later abandoned, is at the heart of Nebraska’s renewed water infrastructure efforts. In April 2022, then-Gov. Pete Ricketts (R) signed Legislative Bill 1015 into law, granting the Nebraska Department of Natural Resources (DNR) the authority to develop, construct and manage the canal in accordance with the South Platte River Compact. Although the bill does not outline the canal’s exact route or funding levels, it allows the DNR to acquire land, including through eminent domain, and to seek financial support through contracts and grants.
According to the Nebraska Examiner, Jesse Bradley, director of the newly formed Nebraska Department of Water, Energy, and Environment, said the agency will continue to advance the Perkins County Canal Project alongside ongoing litigation. Bradley estimated that permitting and design work could be completed by 2028, allowing construction to begin thereafter. As part of the next phase, the agency issued a Request for Proposal on July 18 to select a qualified contractor to prepare an Environmental Impact Statement for the project. The department hopes to see water flowing through the new canal by 2032. — Charles Wallace, WLJ contributing editor
