Nebraska threatens to condemn land in Colorado for a canal to carry away South Platte River water

Colorado Attorney General Phil Weiser sent a letter to county commissioners in northeastern Colorado earlier this week pledging to defend their rights if Nebraska tries to condemn land for the proposed Perkins County Canal Project.

Six landowners in Sedgwick County, where the South Platte River flows out of the state, received notices of condemnation from the state of Nebraska on Jan. 17, offering $1.4 million for about 650 acres of land, according to Nebraska Public Media. 

The landowners were given 90 days to sell or face eminent domain.

“We are in a new chapter, there has been a shift,” Attorney General Phil Weiser told The Colorado Sun on Friday. “I had hoped it would never come to this, but as it happens, we’re no longer in the hypothetical, ‘what might they do, I hope they don’t do this’ world. We’ve moved into ‘they’re really doing this.’”

Nebraska has been inching toward building the canal since April 2022, when the state legislature approved the $500 million project, citing fears about Colorado’s increased water use.

The proposed canal would divert water from the South Platte River to a storage facility on the Nebraska side of the state line.

The South Platte River Compact, ratified by the governors of Colorado and Nebraska in 1923, authorizes Nebraska to build the canal and use eminent domain to do so. Nebraska had tried to build the canal once before the compact in the 1890s, the grassed-over scar of which can still be seen paralleling Interstate 76 through the corner of the state.

But Weiser says the idea of using eminent domain in another state is “novel,” and something his office is ready to challenge Nebraska on in court. 

“Usually you have Colorado using eminent domain in Colorado, maybe you have the federal government using the power of eminent domain. But another state using the power of eminent domain in a different state, that’s a very different situation,” Weiser said. He added that if the two states do enter litigation he expects it to go to the U.S. Supreme Court. 

Colorado has frowned upon the project since its inception, but took a slightly more backseat approach during the first couple years of planning. A spokesperson for Gov. Jared Polis called the project a “bad-faith attempt to undermine a century-long successful compact,” and a “costly boondoggle” for Nebraska taxpayers when the project was first approved.

Weiser said that when Nebraska started appropriating funds for the project he began making trips to northeastern Colorado to “brief” people in the area, still under the impression that it was unlikely to happen. 

“I said, we’re going to be watching closely and preparing for the possibility, but I also said I think this feels more like a political stunt. It doesn’t make sense,” Weiser said.

Upon receiving Nebraska’s first official evaluation roughly a year later, in March 2023, Colorado’s state engineer sent a response that essentially said: Go ahead, but you’re not going to find the water you’re hoping for. The engineer’s response, with extensive input from the Attorney General’s Office, was not meant to be understood as “a hard no,” then-state engineer Kevin Rein told The Colorado Sun in 2023.

But Weiser’s letter Tuesday was less ambiguous. Nebraska’s pursuit of the canal project is something that his office “is closely engaged with — and opposed to,” Weiser wrote. He threatened legal action if Nebraska continued to pursue the project, and encouraged Sedgwick County landowners to consult with lawyers, who could advise them on condemnation proceedings.

Farmers in the Republican River basin, which stretches from the northeastern corner to south of Burlington on the Eastern Plains, recently received $30 million in federal funding to dry up 17,000 acres of agricultural land in compliance with the Republican River Compact, a separate water contract, in order to meet a critical deadline supplying water to Kansas.