The fight over Nebraska’s attempt to seize privately-owned land in northeastern Colorado persisted this week, with Nebraska accusing Colorado of stealing its water in a filing Wednesday with the U.S. Supreme Court.

The issue deals with the Perkins County canal, a proposed 109-mile ditch stretching from Ovid in Sedgwick County and across the Colorado-Nebraska state line into Perkins County and on to Lake Maloney, 6 miles south of North Platte, Nebraska. 

The ditch would be built under a 1923 compact between the two states, one in which Colorado agreed to allow for the construction on its land.

Nebraska notified six landowners in Sedgwick County in January that Nebraska intended to buy their land for the canal, and if they did not agree, it would seek condemnation of their land under eminent domain proceedings.

Through their attorney, the landowners said “no.” Nebraska later dropped the demand but in July asked the U.S. Supreme Court to intervene.

In its July filing to the U.S. Supreme Court, Nebraska claimed that Colorado is in breach of its compact obligations by diverting water that should go to Nebraska. 

According to Nebraska, the problem surfaced in the early 2000s, when drought began to reduce the water supply.

In 2022, over a period of 100 days, Nebraska claimed it did not receive the amount of water it was promised by the compact, which was a flow of about 120 cubic feet per second. 

The lack of water led to “substantial crop failures” in Nebraska’s Western Irrigation District, and the latter had to shut down operations due to the lack of water supply, Nebraska’s brief said.

Attorney General Phil Weiser and Gov. Jared Polis disputed that claim in an Oct. 15 filing, insisting Colorado has always honored compact obligations.

“We won’t sit by while Nebraska chases a meritless and premature lawsuit that circumvents Colorado’s rights under the agreement,” Polis said in an Oct. 15 news conference.

Nebraska’s newest filing claimed that Colorado has “stolen” up to 1.3 million acre-feet of Nebraska’s irrigation water.

“There is nothing ‘speculative and premature’ about that staggering amount,” the brief said.

Colorado has permitted thousands of uses not authorized under the compact, largely tied to augmentation plans that Nebraska claims violated the compact, Nebraska said.

An augmentation plan, according to the state Division of Water Resources, allows a junior water rights holder to divert water out of priority and to replace that water with another source.

The brief said Colorado’s water administration system does not insulate the state from liability. 

The compact “requires Colorado to shut off junior irrigators if flows fall below 120 cubic feet per second at the Interstate Station,” which is located at a river bridge near Julesburg, according to the brief.

Nebraska additionally said that flows frequently drop below 120 CFS during irrigation season, which is April 1 through Oct. 15.

Colorado does not deny that fact, the Nebraska brief said, or that junior users are allowed to continue diverting water. Colorado “asserts it somehow makes Nebraska whole anyway,” the brief said.

While Colorado claimed the lawsuit is premature because the canal hasn’t been built yet – and is likely years away – Nebraska told the Court it needs resolution of key issues to build the canal.

Nebraska claimed it is much further along in the process, with designs, permitting, legal and consulting fees, right-of-way investigations and infrastructure engineering underway.

However, Nebraska is unable to provide final plans to Colorado, as is requested, because it is engaged in working on a 404 permit under the Clean Water Act, and it doesn’t want to prematurely release drafts that it claimed could impact land values, the state said. 

Nebraska also claimed it has attempted to negotiate, with six meetings in 2023, three in “early 2024” and four in 2025. Colorado state engineer Jason Ullman told the Colorado General Assembly’s Agriculture and Water Resources Review Committee on Wednesday that Nebraska canceled a scheduled meeting on July 16.

The brief cited a town hall visit from Weiser, the Colorado attorney general, to Julesburg in September, in which he said he lacked “even the beginnings of an idea of what a negotiated solution could look like because we haven’t gotten far enough to try to understand what even options are there.”

If Colorado doesn’t know what a negotiated solution looks like after three years, it doesn’t want to, the Nebraska brief said.

Delaying action benefits Colorado because a delay defers reckoning, the brief added.

“Of course, Colorado wants more time,” Nebraska Attorney General Mike Hilgers said in a statement on Wednesday, adding that benefits Colorado as it continues to violate Nebraska’s rights under the compact.

“Nebraska cannot afford more time,” Hilgers said. “Colorado is obstructing Nebraska from accessing our non-irrigation season supplies via the Canal. Our reply outlines why Colorado’s response is wrong. We have requested the Court reject Colorado’s tactics and allow Nebraska to proceed swiftly to the merits and enforce our Compact rights in order to remedy the breaches that are occurring today.” 

Weiser did not comment on Nebraska’s latest filing. A spokesman said, “We’ll talk through our court papers.”