Supreme Court Called to Settle High-Stakes Water Battle Between Two States
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Nebraska is taking its long-standing water feud with Colorado to the nation's highest court, filing a lawsuit with the U.S. Supreme Court over Colorado's water usage from the South Platte River. The move marks the latest chapter in a decades-old dispute between the two states, intensified by climate change and mounting water scarcity across the American West.
At a news conference Wednesday, Nebraska Governor Jim Pillen and Attorney General Mike Hilgers announced the lawsuit, accusing Colorado of systematically withholding water that Nebraska is guaranteed under a 1923 interstate compact.
"It's crystal clear. Colorado has been holding water back from Nebraska for almost 100 years and getting more and more egregious every single day," Pillen said, pointing to Colorado's rapidly growing population. "So today it's really, really simple: We're here to put our gloves on. We're going to fight like heck. We're going to get every drop of water."
U.S. Supreme Court Chief Justice John Roberts and Associate Justice Sonia Sotomayor talk on the House floor ahead of the annual State of the Union address by U.S. President Joe Biden before a joint session...
U.S. Supreme Court Chief Justice John Roberts and Associate Justice Sonia Sotomayor talk on the House floor ahead of the annual State of the Union address by U.S. President Joe Biden before a joint session of Congress at the Capital building on March 7, 2024, in Washington, DC. More
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According to the lawsuit, Nebraska is being denied up to 1.3 million acre-feet of water that it is legally entitled to. In addition to alleged under-delivery, the suit claims Colorado officials have tried to block Nebraska's efforts to construct the Perkins County Canal, a major infrastructure project designed to divert water from Colorado to Nebraska. The canal would also include a reservoir and would require Nebraska to seize land inside Colorado—an action authorized under the terms of the compact.
The water is crucial to Nebraska not only for agricultural production in its southwestern region—an area climate experts predict will become hotter and drier—but also for municipal water supplies in the east. Pillen noted that the city of Lincoln is expected to get 12 percent of its water from the proposed canal.
The 1923 compact entitles Nebraska to 120 cubic feet per second of water during the irrigation season (April 1 to Oct. 15) and 500 cubic feet per second in the non-irrigation months. But Hilgers said Colorado has fallen well short of that mark this summer.
"Colorado has been shortchanging Nebraska during the irrigation season, allowing only about 75 cubic feet per second of water daily into Nebraska," he said.
Hilgers stressed the lawsuit's importance to Nebraska's future: "I think this may be the most consequential lawsuit that this office will be a part of in my generation. It is almost impossible to overstate the importance of the South Platte River to the future of the state of Nebraska."
Colorado leaders were quick to respond. In a written statement, Colorado Attorney General Phil Weiser called the lawsuit "unfortunate" and said Nebraska had failed "to look for reasonable solutions." Colorado Governor Jared Polis also weighed in, describing the claims as "meritless" and denying that Colorado had violated the compact.
The South Platte River, which flows from northeastern Colorado into southwestern Nebraska, has been a flashpoint between the states since 2022, when Nebraska announced plans to build the canal.
Negotiations over land acquisition and implementation of the compact have stalled since then.
"We are at an impasse," Hilgers said. But Weiser countered that Nebraska walked away from diplomacy. "Nebraska's actions will force Colorado water users to build additional new projects to lessen the impact of the proposed Perkins County Canal," he said. "When the dust finally settles, likely over a billion dollars will have been spent — tens of millions of that on litigation alone — and no one in Nebraska or Colorado will be better off."
Because the dispute is between two states, the lawsuit was filed directly with the U.S. Supreme Court. Hilgers warned the legal process will be lengthy. "We'll probably have a special master appointed within the next 12 months, and under normal litigation timelines, that's maybe 3 to 5 years before we get a result," he said. However, that won't stop Nebraska from continuing work on permitting and design of the canal during the legal proceedings.
Nebraska has a long history of litigation over water rights. In 2002, Nebraska, Colorado, and Kansas reached a settlement over the Republican River, though disputes persisted and led to additional agreements in 2014.
As the climate warms, such legal battles may become more frequent. Dr. Carly Phillips, a research scientist at the Union of Concerned Scientists, said climate change is reshaping the western hydrological cycle.
"These patterns are all in the same direction across the board," she said. "The trends are really consistent when it comes to snowpack, stream flow, evaporation and irrigation demand." Higher temperatures are reducing snowpack—the West's main water reservoir—and causing snow to melt earlier, ultimately disrupting stream flows and increasing irrigation needs in agricultural states like Nebraska.
This article includes reporting by the Associated Press.
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