U.S. Supreme Court lets Nebraska-Colorado South Platte River, Perkins County Canal case proceed

LINCOLN — The U.S. Supreme Court will hear Nebraska’s claims about whether Colorado has violated a century-old water compact or obstructed Nebraska’s plans for building a canal.

In a brief motion Monday, the nation’s highest court granted the request from Nebraska Attorney General Mike Hilgers and his office to file its complaint. Colorado has 30 days to file an answer. It’s the first major hurdle for claims stemming from the 1923 South Platte River Compact between the states and the proposed construction of what’s termed the Perkins County Canal.

The Supreme Court will appoint a special master to oversee proceedings, conduct hearings and submit recommended findings. It could be years before a resolution is reached.

“Nebraska will finally have the opportunity to prove that Colorado has violated the Compact and to hold Colorado accountable for depriving Nebraska of water that rightfully belongs to our state,” Hilgers said in a Monday statement.

Colorado Attorney General Phil Weiser on Monday said Colorado is complying with the compact and is not interfering with Nebraska’s plans to build the Perkins County Canal.

“Today’s court decision merely opens the door for Nebraska to bring its claims against Colorado,” Weiser said in a statement. “Nebraska’s burden to prove those claims is incredibly high, and we will vigorously defend Colorado’s full entitlements under the compact.”

The compact dictates that Colorado is to deliver an average of 120 cubic feet of water per second to Nebraska during the irrigation season, between April 1 and Oct. 15. Nebraska is not guaranteed that much water, but it gives priority water access to Nebraska over newer, or “junior,” water users that have popped up over the last century.

The complaint alleges that Colorado has allowed “junior” water users to access water while Nebraska has not received its promised water flows.

The compact gives Nebraska the right to 500 cubic feet per second of water in the non-irrigation season, between Oct. 15 and April 1, if a canal is built. Nebraska is afforded “eminent domain” over some Colorado land to build the canal, meaning the state could seize private land if needed, which has caused consternation for some landowners in the area.

Then-Nebraska Gov. Pete Ricketts, now a U.S. senator, revived the canal idea in 2022. Hilgers was speaker of the Nebraska Legislature at the time.

Nebraska lawmakers have repeatedly defended the canal and set aside more than $600 million in funding, even dipping into cash reserves and sweeping various state cash funds to help balance the state budget.

U.S. Solicitor General John Sauer, the federal government’s lead lawyer before the Supreme Court, had advised the justices to take just part of Nebraska’s claim. Those were allegations that Colorado was not delivering enough water to Nebraska in the irrigation season, which Sauer called a “classic case.”

However, Sauer called Nebraska’s argument over the Perkins County Canal and supposed interference from Colorado “unripe.”