It’s a red state vs. blue state court case over the water that both states’ agriculture industries depend upon, with the most affected areas in Colorado being in Sedgwick, Logan, and Washington Counties. The state of Nebraska has filed a suit with the U.S. Supreme Court against Colorado over the Perkins County Canal. Colorado Attorney General Phil Weiser said in a statement he anticipates the court battle will cost over a billion dollars and, he said, no one in either state will be better off.

The Perkins County Canal is proposed to begin east of Ovid, in Sedgwick County, and continue into Perkins County, Nebraska — a project for which the state has already invested $500 million. The total cost is anticipated to exceed $628 million.

The question is whether Colorado is in compliance with the South Platte River Compact, an agreement that dictates that Nebraska receives a flow of 120 cubic feet per second from April 1 to Oct. 15 where the South Platte leaves Colorado near Julesburg. The remainder of the year, the compact allows Nebraska 500 cubic feet per second through the proposed canal.

The compact, signed in 1923, allows Nebraska to utilize eminent domain to build the canal, but it’s unclear whether it is allowed in another state. Landowners in Sedgwick County received notices of condemnation from Nebraska, threatening them with eminent domain if the offer of a buyout was rejected. In January, 2024, those notices offered $1.4 million to six landowners for about 650 acres. Through an attorney, the landowners turned down the offer, citing “the diversion would dry up 30,000-to-60,000 acres of land that rely on groundwater for all or part of their irrigation supply, resulting in property damage of up to $270,000 in Sedgwick, Logan, and Washington counties.”

The Nebraska legislature approved the project, and it’s then-$500 million price tag in 2022. Nebraska attempted to build a canal via eminent domain in the 1890s, prior to the compact. At the time, Colorado Attorney General Weiser said one state attempting to use eminent domain in another is “a very different situation” than it being leveraged by the state, in the state or by the federal government. He also said Nebraska’s appropriation of funds felt more like a “political stunt” than an actual possibility.

In 2023, Colorado state engineer Kevin Rein acknowledged Nebraska’s right to build the canal, but also said in response to Nebraska’s initial official evaluation of the canal plan, that the water may not be there, canal or not.

In his letter, Rein said the study “does not adequately consider future development” by Colorado of water in the upper section of the South Platte, a stretch running back from Washington County all the way up through Greeley, Boulder County and Denver. The compact doesn’t allow Nebraska to dictate Colorado’s use of water upstream. The study also fails to account for irrigation water returning to the river that Nebraska has no right to or the reality that the meager flow is likely frozen during some of the months Nebraska has a right to take it.

Sen. Byron Pelton’s district is the one affected by the potential canal project. The South Platte water used by Northern Water, Denver Water, and upstream will remain unaffected, he said, but District 64 farmers will be left high and dry.

Pelton said the flow is low during the summer. However, during snowmelt runoff, he said Nebraska receives additional water due to the lack of storage in Colorado.

“If it’s a good snow melt season, they get a lot of water, but for the most part right now, it’s just a trickle going across there, which we’re all relying on return flows right now,” he said. “So, this is very frustrating. If Nebraska just wants to continue to threaten landowners, and this is just another step of them because they have never negotiated in good faith coming over into Sedgwick County. They’ve always come in and said, here’s what we’re going to pay you for your land, and if you don’t, we’re going to start the condemnation process, and force eminent domain. Whenever you hear those two words, eminent domain or even condemnation process, any farmer is going to say, no, you’re not, we’re not going to deal with you because that’s not negotiating. That’s threatening.”

Colorado, Pelton said, is paying for the court battle, which is a major concern in one of the worst budget periods in Colorado.

“It’ll be really interesting on how we’re going to pay for this because we’re in a structural deficit,” he said. “In the Colorado legislature, the majority has spent us into oblivion, so I really don’t know how we’re going pay for it.”

Pelton said he thinks Nebraska is questioning the augmentation process and accusing Colorado of being obstructive since the landowners won’t give up land willingly. “Some of these farms are generational farms that have been in those families for years, I want to say even decades,” he said. “There has been no attempt to operate in good faith from the state of Nebraska. They’re questioning the flows going across and yeah, we can prove how much how much water is going above and beyond. I can talk to any of the water gurus up here. I’m not a water guru either, but I have a lot of them on speed dial and they always tell me how much above and beyond that they’re sending into the state of Nebraska than what they’re supposed to.”

Weiser said Colorado is in compliance with the compact and criticized Nebraska for prioritizing “politics above farming and ranching communities and the regional agricultural economy.” “Nebraska has now set in motion what is likely to be decades of litigation. And if, after decades of litigation, the court allows Nebraska to move forward with its wasteful project, Nebraska’s actions will force Colorado water users to build additional new projects to lessen the impact of the proposed Perkins County Canal,” Weiser said.

Rachel Gabel writes about agriculture and rural issues. She is assistant editor of The Fence Post Magazine, the region’s preeminent agriculture publication.

Rachel Gabel writes about agriculture and rural issues. She is assistant editor of The Fence Post Magazine, the region’s preeminent agriculture publication.