Colorado told the U.S. Supreme Court in a brief Wednesday that Nebraska’s suit seeking confirmation of its water rights in Colorado is asking justices to “weigh in on a hunch,” and that Nebraska has far more permitting and legal work to do before finalizing the fate of precious South Platte River water.
Colorado’s response brief to Nebraska’s U.S. Supreme Court filing in July chides Nebraska for being late to “confront the hard questions” of how to legally and financially support construction of the Perkins County Canal Project, which would use a compact clause to bring South Platte water from near Julesburg into Nebraska.
Also, the Colorado brief says, “Nebraska claims that Colorado authorizes water uses that harm Nebraska during the irrigation season. But Nebraska alleges few, if any, facts to support this bare assertion,” according to the brief, filed and announced Wednesday morning by Colorado Attorney General Phil Weiser and Gov. Jared Polis. The brief notes that Nebraska had previously filed to condemn private Colorado land along its proposed canal route, but then withdrew the filings.
Nebraska, the Colorado officials say, “needs to develop facts” before demanding the Supreme Court’s limited time.
“Nebraska asks the Court to weigh in on a hunch that Colorado might not be meeting its already existing Compact obligations during the irrigation season. But Nebraska raised this secondary concern only after it began to confront the hard questions surrounding whether to pursue its canal right,” the brief’s introduction says.
In a lawsuit filed with the U.S. Supreme Court this summer, lawmakers in Nebraska accused Colorado of allowing as much as 1.3 million acre-feet of water to be unlawfully diverted before reaching the border, and of breaching the South Platte River Compact, an agreement ratified by the governors of Colorado and Nebraska in 1923.
The compact requires Colorado’s Division of Water Resources to curtail usage by those with water rights acquired after June 14, 1897, if the river’s flow drops below 120 cubic feet per second at a stream gauge near Julesburg during the irrigation season, which runs April 1 to Oct. 15.
For the other half of the year, the compact allows Nebraska 500 cubic feet per second through a canal that pulls from the river southwest of Julesburg near Ovid. That’s the canal Nebraska wants to build. The lawsuit alleges that Colorado is “blocking” Nebraska’s ability to build the canal, “while simultaneously arguing that Nebraska cannot access certain water without completion of the canal.”
The dispute has been simmering since 2022 when Nebraska lawmakers approved the $500 million project, citing fears about Colorado’s increased water use. Officials and engineers spent the next few years exchanging evaluations: Nebraska’s engineers insisted they needed to build the canal to secure water for downstream farmers and residents, Colorado’s engineers responded that construction would be a big waste of money.
For a few years Polis and Weiser met each step Nebraska took toward the canal with a combination of disbelief and disdain.
A spokesperson for Polis called the project a “bad-faith attempt to undermine a century-long successful compact,” and a “costly boondoggle” for Nebraska taxpayers when the project was first approved. Weiser told Sedgwick County landowners that the canal plan felt more like “a political stunt” than a real threat.
In February, Nebraska sent letters of condemnation to landowners in Colorado, offering $1.4 million for about 650 acres of land, and the Colorado officials changed their tenor. Weiser advised Sedgwick County landowners to seek legal counsel, and sent a letter to Nebraska officials urging them to back down. They sued Colorado instead.
This is a developing story that will be updated.
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