Nebraska’s Lawsuit Against Colorado Over Water Rights

Nebraska officials have filed a lawsuit against Colorado, claiming the state is permitting “illegal water diversions” from shared water resources, specifically affecting the South Platte River.

Governor Jim Pillen and Attorney General Mike Hilger from Nebraska allege Colorado is jeopardizing their state’s water supply in several ways.

The legal action indicates that Colorado asserts Nebraskans “stole” their water rights during the irrigation season and is also hindering the construction of a critical water project known as the Perkins County Canal.

“Nebraska has to take steps to protect our water for the future,” Pillen remarked, adding that the state has made consistent attempts to resolve issues with Colorado amicably.

Most complaints center on enforcement regarding the South Platte River Compact, an agreement made in 1923. This compact sets limits on how Colorado can use its rivers and determines the amount of water Nebraska is entitled to during both summer and winter non-irrigation seasons.

The South Platte River begins near South Park, southwest of Denver, and flows northeast through Denver before crossing into Nebraska.

As the U.S. Supreme Court holds original jurisdiction over disputes between the states, Nebraska officials claim that a court ruling is necessary to clarify unresolved issues.

According to Hilger, “Today’s lawsuit is a step toward ensuring Nebraska is granted all the water it’s entitled to under the compact, thus safeguarding our agriculture and economy.” He emphasized the importance of water in Nebraska’s economy.

The lawsuit contends that the 1923 compact mandates Colorado to limit certain water users if Nebraska isn’t receiving a sufficient flow of 120 cubic feet per second during irrigation times.

Currently, Colorado allows users with “junior” water rights to dilute Nebraska’s water supply, which allegedly breaches contractual agreements and Nebraska’s “senior” rights status.

This dispute arises from the traditional Western U.S. water rights system, which operates on a “first in time, first in right” principle. This method, developed during the 19th century Gold Rush, imposed rights based on arrival rather than location along the river.

The compact also allows Nebraska to divert water at a rate of 500 cubic feet for every 500 cubic feet in the winter and additional flows once the Perkins County Canal is operational.

Nebraska’s complaint asserts that Colorado is currently pumping water in the winter and releasing it gradually, intending for it to reach Nebraska during the next irrigation season, which Nebraskans find problematic when they need that water most.

To secure its winter rights and manage water flow, Nebraska has started construction on the Perkins County Canal, with funding of $574.5 million approved by the Legislature in 2023, despite attempts to lower costs.

While acknowledging that Colorado has rights to participate in building the canal, Nebraska officials voiced frustration over years of stalled negotiations.

“Despite our genuine efforts, Colorado has disagreed on fundamental issues like the canal’s size and location, along with the volume of water that should flow through it,” noted the Attorney General.

In response to the lawsuit, Colorado Governor Jared Polis criticized the complaint, characterizing it as a “meritless” concern.

Polis expressed disappointment over what he sees as unnecessary time and resources spent on a lawsuit, asserting that Colorado has always complied with the South Platte Compact and participated in discussions in good faith.

He added, “This unnecessary escalation from Nebraska will not deter Colorado from protecting its water users and rural economy.”

Colorado Attorney General Phil Weiser echoed these sentiments, suggesting that the Nebraska leadership seems to be prioritizing political motives over agricultural needs, potentially leading to prolonged litigation.

Weiser described the Perkins County Canal project as wasteful, noting that the associated expenses would place financial burdens on both states without yielding any benefits.