Nebraska understandably wants to finally tap into a water right it has held on the South Platte River for almost a century.
Coloradans understandably are worried the plan will cut into the amount of water they can pull during the winter to save up for their crops in the spring.
Now the matter will go to the U.S. Supreme Court to decide whether Colorado officials have violated the long-standing water-sharing compact for the South Platte River or whether Nebraska’s complaint is much ado about hoping to evade actually having to construct a billion-dollar canal to claim their water.
Fortunately, the 1923 South Platte River compact is abundantly clear and written in language that is difficult to interpret any other way. And also, fortunately, farmers relying on the South Platte River were not born yesterday.
Nebraska can build a canal that begins south of Ovid and travels east through Colorado to Perkins County to pull water during the winter months — roughly October to April — to store water to be used by Nebraska farmers during the spring growing season.
The canal — after taking into consideration upstream and downstream senior water rights — can take 500 cubic feet of water per second from the flow of the lower section of the South Platte during the winter.
So, Nebraska is entitled to the water, clearly, but only if it builds a canal.
And that is, of course, the rub.
Building a canal is going to be expensive. Nebraska lawmakers appropriated $628 million to get the project started.
But the state found landowners in Colorado unwilling to sell. An obvious development given that the canal could limit how much water the very farmers who own the land could pull from the river during the winter to store for spring.
Would you sell cheap?
Nebraska is expressly guaranteed the right to use eminent domain — the government’s power to take land against the owner’s will — to purchase land or egress for the canal. But the problem is land in Colorado is not cheap, and Colorado law demands that when eminent domain is used, a person is not only compensated for fair market value but also gets damages for the taking.
For example, a new interstate running next to a house is going to dramatically devalue that property. Colorado law requires a city or state to compensate the individual for the property taken, but also for the damages to their house. Could landowners convince a court that the taking of their land for a canal also included the taking of water from the river that they otherwise could use for crops? Maybe.
Notifying Colorado landowners of their rights and helping them organize to protect their own interests is most certainly not interfering unlawfully with Nebraska’s plan. Nebraska’s attorney general included this quote from Colorado Attorney General Phil Weiser:
“We don’t believe there’s ever been a case in American history where one state has sought to exercise the power of eminent domain in another state. That is going to raise some significant legal issues. We are preparing for them. We’re prepared to engage on the ground to let people know what rights they have.”
That quote only proves that Weiser is doing his job protecting Coloradans and informing them of their legal rights.
Nebraska may need to bring a lot more money to the project than was originally proposed, but that is not Colorado’s fault.
As for the other claim in Nebraska’s lawsuit, that Colorado has routinely been violating the compact by not sending enough water downriver during the irrigation system, we are skeptical. The initial claim from Nebraska was scant on details about how much water is being shorted to Nebraska users.
Colorado’s response, filed this week by Gov. Jared Polis and Attorney General Phil Weiser, makes it abundantly clear that the state takes meeting the compact’s obligations seriously.
“Nebraska itself has not concluded whether Colorado is impermissibly reducing flows during the irrigation season, and there are other forums to explore Nebraska’s speculation on the efficacy of Colorado’s augmentation plans,” the state’s Supreme Court brief reads.
That is, if Colorado’s plan to offset or “augment” the negative impacts of pervasive groundwater pumping along the South Platte River is failing to deliver the required water downstream, the state is happy to address it, but first, Nebraska must bring evidence and bring it to the water managers in charge of enforcing the state’s prior appropriations system.
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