Nebraska’s Legal Battle with Colorado Over Perkins County Canal Project

The ongoing water dispute between Nebraska and Colorado over the proposed Perkins County Canal project has reached a critical juncture, drawing attention from legal experts and state officials alike. Nebraska’s ambitious plan to divert water from Colorado via a canal is now in its fifth year, facing potential hurdles in the form of legal and regulatory challenges.

Nebraska is seeking intervention from the U.S. Supreme Court in its case against Colorado, arguing that a century-old compact grants it the right to construct a canal to reroute water from Colorado’s South Platte River. The state has allocated over $600 million for this project, funds that have withstood attempts to redirect them for other budgetary needs.

The central issue lies in Nebraska’s claim that Colorado is obstructing the canal’s construction. Colorado counters that Nebraska has only recently begun the necessary permit application process, making it premature for judicial involvement. Legal experts are divided on whether the Supreme Court will entertain Nebraska’s request.

George Mason University law professor Ilya Somin noted, “With these original jurisdiction cases, the Supreme Court has long held that they have broad discretion to refuse to hear them if they don’t want to.” He suggested that the odds might not favor Nebraska, as a majority of justices may hesitate to facilitate interstate disputes directly in the Supreme Court.

Conversely, Rhett Larson, a law professor at Arizona State University, opined that the seriousness of the claims might warrant a Supreme Court hearing. He pointed out the unusual nature of the interstate compact, which allows Nebraska to exercise eminent domain within Colorado—an authority not commonly seen in similar agreements.

The eminent domain issue further complicates matters. Nebraska’s offers to purchase land in Colorado have largely been rejected, raising questions about the appropriate judicial venue for eminent domain cases. While Professor Somin emphasized that such cases are typically handled locally, Larson argued that they could be considered federal matters due to the interstate nature of the compact.

Beyond legal battles, the canal’s route and environmental impact remain under scrutiny. Nebraska is in the process of hiring a firm to assist with an environmental impact statement required by the U.S. Army Corps of Engineers. The state aims to secure final permits by the end of 2027, though experts like Michael Greenberg from Rutgers University caution that water projects in the West can face prolonged delays.

Greenberg remarked on the potential influence of presidential decisions on such projects, referencing the Keystone XL oil pipeline’s cancellation by President Joe Biden as an example. However, Larson noted that the Army Corps’ detailed permitting process might limit presidential intervention.

The unfolding situation suggests a complex and potentially protracted journey for the Perkins County Canal, with significant implications for interstate water rights and infrastructure development.