Nebraska Gov. Pete Ricketts (R) announced a $500 million provision in the mid-biennium budget to construct water canals diverting water from the South Platte River, ensuring the state’s access to water under a 99-year-old compact.
“To secure Nebraska’s water supply, I am recommending $500 million to construct a canal and reservoir system from the South Platte River,” Ricketts said during the State of the State address. “Access to this water enables our farmers and ranchers to produce. It protects quality drinking water. It keeps electric generating costs manageable, and it ensures Nebraska remains the best place in the world to live, work and raise a family.”
At a previous news conference, Ricketts said that Nebraska would invoke its rights under the South Platte River Compact signed in 1923. The South Platte River flows from the Rocky Mountains through Denver and flows northeast, entering Nebraska near Big Springs.
Ricketts announced the plan after Nebraska Attorney General Doug Peterson learned of the release of a report this month by Colorado officials identifying 282 projects in the South Platte Basin, totaling $9.87 billion. The report states the population in the basin will rise 42 percent to 70 percent, about 6 million people between 2015 and 2050, creating more demand for water.
“If we fail to secure our supply from the South Platte River, we could expect to lose 90 percent of the water that currently comes to us from Colorado,” Ricketts said at the State of the State address. “We must act to preserve, protect, manage and steward our water supply for our future Nebraskans.”
The South Platte River Compact called for the restriction of upstream diversions in Colorado by creating mechanisms to assure river flows reach Nebraska and the South Platte Valley. The mechanism stipulates that when river flows near Julesburg, CO, drop below 120 cubic feet per second (897.6 gallons) during the April 1 to Oct. 15 time period, the Colorado state engineer must limit diversions for those holding permits newer than June 14, 1897. At other times of the year, Colorado is entitled to “the full and uninterrupted use and benefit of the waters of the river.”
Under the compact, Nebraska can build and operate canals within the borders of Colorado and acquire necessary rights-of-way through “purchase, prescription or the exercise of eminent domain.” In 1894, the Perkins County Canal was started, and 24 miles of the canal were partially completed. Work started just south of Ovid, NE, and ran south to Julesburg, CO. Perkins County residents at the time approved $90,000 in bonds, but the bonds were never sold, forcing them to give up. Remnants can still be seen along the north side of Interstate 76 between Ovid and Julesburg.
The compact says Nebraska has the power to finish what Perkins County residents started, and Colorado must recognize a Dec. 17, 1921, priority date for diversions by the Perkins County Canal. It authorizes the diversion of 500 cubic feet per second (3,740 gallons) from Oct. 15 to April 1.
The canal project will be paid for by taking $400 million out of the state’s $1.5 billion cash reserve fund and using $100 million in federal pandemic relief money.
Ricketts told the North Platte Telegraph during his two-day tour of the state, Colorado’s attitude has amounted to “Nebraska has a right, but they’re not exercising it, so they’re probably fine to use up South Platte water in Colorado.” Ricketts said reviving the Perkins County Canal could take a while, as “building a canal and reservoir system takes decades, no matter what.” Still, it could also be subject to legal challenges.
Reaction
After news of Ricketts’ announcement, Colorado Gov. Jared Polis (D) said the state would “protect and aggressively assert Colorado’s rights under all existing water compacts.”
Polis said he would work with Nebraska, but he wants more details of the planned project.
“We hope to more fully understand Nebraska’s concerns and goals, as so far those concerns and goals are quite simply hard to make sense of,” Polis said. “Our longstanding compliance of and respect for the water agreement between our states on the South Platte River remains intact, and we hope that our partners in Nebraska will show that they share that respect.”
Polis said the report cited by Ricketts is a “misunderstanding” of the water planning process and that the projects identified “should not be taken as formally approved projects.”
Lawrence Pacheco, a spokesperson for Colorado Attorney General Phil Weiser, said in a statement that “the attorney general’s office has been in contact with the Nebraska attorney general’s office to learn more about the project and its implications for Colorado.”
Joe Frank, general manager of the Lower South Platte Water Conservancy District, said during a presentation at a South Platte River update held in Brush, CO, the proposed projects in the report are either underway, being adjudicated or are environmental and recreational projects that have no bearing on water flow.
Frank disputes Ricketts’ figure that “planned projects” in the South Platte Basin will diminish water flows by 90 percent, stating the compact guarantees Nebraska’s water rights.
Any water fight between the states could last for years, as the North and South Platte rivers, along with the Republican River, have been involved in several legal disputes over the decades.
Efforts were unsuccessful in the 1920s to create a compact for sharing water of the North Platte River among users in Colorado, Wyoming and Nebraska. Nebraska initiated litigation against Wyoming in 1934, and after lengthy proceedings, the Supreme Court of the U.S. entered a decree in October 1945.
Nebraska was in a water fight with Kansas over access to the Republican River, which runs through Colorado, Nebraska and Kansas. The lawsuits revolved around a similar compact with the three states approved in 1943. Starting in 1999 and again in 2010, Kansas accused farmers in Nebraska of diverting more water than they should for private use, violating the Final Settlement Stipulation negotiated in 2003. — Charles Wallace, WLJ editor
