Claims and counterclaims come in and out like seasonal stream flows in the ongoing fight between Colorado and Nebraska over the Perkins County Canal.
Colorado Attorney General Phil Weiser and State Engineer Jason Ullman met with the state legislature’s Joint Water Resources and Agriculture Review Committee on Oct. 29. The hearing was to update the legislators on Nebraska’s lawsuit against Colorado, launched July 16, over a proposed canal on the South Platte River, an important source of irrigation water for both states.
“Our position is there is no case that’s yet ripe,” Weiser told the committee. “We’ve told the Supreme Court that this case is not ready for prime time, and the court should decline to hear it.”
Just minutes before the hearing began, however, Nebraska’s Attorney General Mike Hilgers issued a request to the U.S. Supreme Court, urging them to pursue the lawsuit and reject Colorado’s request for denial.
These are just the most recent events in a fight over water rights on the South Platte River that started July 16 when Nebraska sued Colorado.
On the one hand, Nebraska claims Colorado is violating the South Platte River Compact, which governs water sharing on the river between the states, is stealing water owed to Nebraska, and is hurting Nebraskan agriculture as a result.
On the other hand, Colorado claims Nebraska’s lawsuit is “meritless,” and has threatened the state and its agricultural property owners along the proposed canal path with unprecedented use of eminent domain.
Backstory Behind the Current Back-and-Forth
The compact, signed between the two states in 1923, outlined the right for Nebraska to create the Perkins County Canal in Colorado “for the diversion of water from the South Platte River within Colorado for irrigation of lands in Nebraska” during the non-irrigation season. Nebraska’s lawsuit asserts that Colorado has blocked its efforts to build this canal.
In the lawsuit’s bill of complaint, Nebraska says it initiated the building effort in 2022, including initial land acquisition talks with Colorado landowners in the projected canal area and “communicated no fewer than ten times between October 2022 and June 2025” with Colorado’s legal and technical representatives.
“Despite Nebraska’s best efforts to secure cooperation, Colorado has stonewalled and opposed Nebraska at every step,” the complaint reads.
Meanwhile, Colorado says there’s been no canal effort to block.
“For the century plus that this compact has been in place, Nebraska has declined to build such a canal,” Weiser said. “They have taken only the most preliminary steps thus far and there is a significant permitting process they will have to go through if they are serious. Many of these steps they have yet to do.”
Nebraska’s Oct. 29 request to the Supreme Court calls earlier such claims made Weiser and others untrue.
“Nebraska has spent millions of dollars on designs, permitting, legal and consulting fees, right-of-way investigations, and infrastructure engineering for the Canal,” the request document reads. “The design is substantially developed, and all major engineering decisions have been made. Nebraska has already acquired 80 acres in Colorado to facilitate Canal construction.”
Question of State-to-State Eminent Domain
Those Colorado acres came from one landowner who sold to Nebraska after it reached out to landowners along the proposed route in late 2022. While the lawsuit document characterized this initial outreach as amiable with Colorado landowners, saying it offered six Colorado landowners 115% of fair market value for their properties, Colorado characterized Nebraska’s later interactions — which included threats of condemnation — as threatening.
Ullman told committee members, “We are aware that [Nebraska] made these offers and threats of condemnation to a limited group of landowners at the location where the head gate of the canal was going to be, not along the 13 additional miles of canal that is necessary.”
Colorado state Sen. Byron Pelton (R-District 1), who represents the area where the Perkins County Canal would go, said the situation has been hard on those in his agriculture-dependent district.
“They are concerned about where their water is coming from,” he said. Pelton added that “$4.6 billion is generated with agriculture just in my district alone, and that’s because of the South Platte River and the Republican River basin.”
But he also questioned the seriousness of Nebraska’s negotiation efforts in light of the threats of eminent domain against Colorado farmers, ranchers and growers.
“It has been my experience growing up farming and ranching my entire life that whenever you walk into somebody’s property, walk into somebody’s place of business, and threaten eminent domain, everything shuts down — there is no more negotiation,” he said. “[Nebraska has] done nothing but threaten eminent domain from the very beginning.”
With some limitations, however, the compact grants Nebraska “the right to acquire by purchase, prescription, or the exercise of eminent domain” lands and easements necessary for the canal. In its lawsuit, Nebraska recognized that element of the compact as “exceptional.” It nonetheless asserts that it had moved to exerting this right only after meeting with Colorado landowners and met with “little success.”
Even though the right of eminent domain is in the compact, Weiser described it as potentially opening up “some novel, unprecedented territory” should the canal effort move forward.
“If this process is to get started — the eminent domain process, the condemnation process — that will generate some legal question,” Weiser said. “Our position is Colorado’s law of eminent domain is the only eminent domain law that applies in the state of Colorado.”
