Nebraska Gov. Pete Ricketts’ $500 million plan to take more water from the South Platte River by building a canal in northeast Colorado left politicians and experts in both states scratching their heads.
The 99-year-old South Platte River compact between the two states does outline plans for such a project, according to Anthony Schutz, an associate law professor at the University of Nebraska Lincoln. But the project was started and abandoned decades ago and the question of starting it up again might have to be decided in a costly and lengthy court battle.
Even if the canal is built, it’s unclear how much extra water it would yield to Nebraska or for what it could be used, Schutz said.
Plus, more water is already appropriated out of the South Platte — like many of Colorado’s other waterways — than the river has to give.
“I’m not sure if there’s a miscommunication here,” Schutz said.
If so, he estimated that resolving that miscommunication might make Ricketts’ proposal less attractive to Nebraska.
During a news conference Monday, Ricketts said that Colorado’s ongoing development plans and population growth will cut into the amount of water it must allow to flow into Nebraska. Those details are outlined in the 99-year-old South Platte River Compact. The governor claimed that Colorado’s plans could cut water flows into Nebraska by up to 90%, damaging its agricultural and energy industries as well as water supply to Lincoln and Omaha.
The solution, Ricketts said, is to seize land in northeast Colorado to build a canal. The move is detailed in the compact, which says Nebraska could buy the land in Colorado or even use eminent domain to acquire it.
During his news conference, Ricketts cited a list of “almost 300” water projects “announced” by Colorado, worth about $10 billion.
“If these projects were to go forward it would dramatically reduce the amount of water coming into the state of Nebraska,” Ricketts said.
But state Sen. Jerry Sonnenberg, R-Sterling, said the Nebraska governor must be mistaken. That list of projects comes from a report generated by legislation Sonnenberg helped pass in 2016, the senator said. And it outlines possible water projects around the state, not work that is actively being proposed.
“I’m sure he looked at that report and said ‘Oh, look at all these places they’re going to put storage,’” Sonnenberg said. “Obviously Nebraska is a little slow in figuring this out.”
Representatives for Ricketts did not respond to a request for comment.
Colorado Gov. Jared Polis said in a statement, Ricketts’ plans “seem to reflect a misunderstanding of Colorado’s locally driven water planning process.”
Officials in Colorado will look to more fully understand Nebraska’s “concerns and goals, as so far those concerns and goals are quite simply hard to make sense of,” Polis continued.
The Colorado governor pledged to protect and “aggressively assert” the state’s existing water rights.
Sonnenberg said that likely means the two states will end up in court to determine whether Nebraska can use eminent domain to build the canal or whether it can take more water out of the South Platte if it’s built.
The proposal could harm Colorado’s economy and hamper future growth, Sonnenberg said.
“If (Ricketts) is successful, and that’s a big if,” Sonnenberg said, “It would be devastating to agriculture production in northeast Colorado and the very lower reaches of the South Platte.”
Currently, Colorado is meeting all its water obligations to Nebraska, said state Engineer Kevin Rein. During the irrigation season, April 1 to Oct. 15, the South Platte must flow at 120 cubic feet per second into Nebraska. That flow is measured at a water gate in Julesburg, just south of the Colorado border, Rein said.
Should flows dry below that threshold, Colorado officials must curtail water use in certain areas for water rights holders whose rights were established after 1897, Rein said. But Colorado has no additional obligation to increase flows.
During the non-irrigation season, there is no such requirement for Colorado and its officials believe the state has uninterrupted water rights for the South Platte, Rein said.
There is no set volume Colorado must allow to flow into Nebraska every year, Rein said.
Schutz, in Lincoln, said Colorado appears to be upholding its end of the bargain with Nebraska.
“If Colorado had violated the compact we would be all over them,” he said.
The issue is likely to wind up in court and could even be heard before the U.S. Supreme Court, Schutz said. But because it’s difficult to sue “in anticipation of harm,” Colorado probably won’t take action unless officials in Nebraska move forward.
