A canal, a century-old compact between #Nebraska and #Colorado, and a sea of unknowns — The Omaha World-Herald

eople work on the Perkins County Canal in the 1890s. The project eventually was abandoned due to financial troubles. But remnants are still visible near Julesburg.
Perkins County Historical Society

From The Omaha World-Herald (Sara Gentzler):

It seems to be a striking proposal: That Nebraska could use eminent domain in Colorado and build a canal that diverts water from the South Platte River for irrigation in Nebraska.

But the idea — floated earlier this month by Gov. Pete Ricketts and other Nebraska officials — is laid out in a compact agreed to by the two states and approved by Congress almost 100 years ago.

Nebraska officials want to invoke the 1923 South Platte River Compact to build that canal and a reservoir system, and ensure Nebraska continues receiving water that they say is at risk as the population on Colorado’s Front Range booms.

But with a $500 million estimated price tag, a history of failed attempts, confusion from Colorado, the potential for lawsuits and a stream of unknown details, one fundamental question hangs over the proposal: Would it be worth it?

Canal idea predates compact

Even in communications between Delph Carpenter, who negotiated the compact for Colorado, and then-Nebraska Gov. Samuel McKelvie, the canal project was referred to as “old.”

“The old Perkins County canal was projected in the early (1890s) with the object of diverting water from the South Platte some miles above Julesburg, within the State of Colorado, for the irrigation of lands in Nebraska lying south of the river and particularly of that beautiful area of land in Perkins County between Ogallala (sic) and Grant,” a 1921 letter from Carpenter reads.

Construction efforts had started in 1891, according to the Nebraska Department of Natural Resources. But it was abandoned due to financial troubles.

Remnants of the abandoned ditch are still visible near Julesburg.

Another effort to pursue the canal, this time by the North Platte-based Twin Platte Natural Resources District, was derailed in the 1980s because it didn’t comply with requirements of the Nongame and Endangered Species Conservation Act.

The compact, borne out of a desire to resolve litigation, is more than the canal…

Current director Tom Riley told The World-Herald that flows drop below 120 cfs nearly every year at times during that time period. When it happens, Nebraska calls Colorado and it addresses the issue by limiting its users who are subject to the compact.

Another part of the compact would allow Nebraska to also claim water outside that growing season — provided there’s a canal.

Ovid, entering from the east on U.S. Route 138. By Jeffrey Beall – Own work, CC BY 4.0, https://commons.wikimedia.org/w/index.php?curid=56445787

The canal could run from near Ovid, Colorado, east near the route of the abandoned “Perkins County Canal,” it says. And Nebraska could buy land or even use eminent domain to make it happen.

With such a canal, the state would be entitled to divert 500 cfs for irrigation between Oct. 15 and April 1.

However, data from the Julesburg gage suggests Nebraska has been getting about that much from Colorado for the last 10 years of record during the non-irrigation season, Riley said. The goal of the project would be to keep it that way.

Asked how the state would avoid what happened in the ‘80s, Riley pointed out that was 40 years ago. And, as he understands it, those proponents chose not to try to comply with endangered species requirements…

Colorado disputes Nebraska’s rationale

In revealing his desire to resurrect the plan, Ricketts earlier this month sounded alarm bells that without the project, agriculture, drinking water across the state, power generation and the environment could be affected…

Colorado Gov. Jared Polis and the state’s Department of Natural Resources said they learned of the situation the same day Ricketts announced it publicly…

Since then, officials haven’t shared a vision of an exact route for the newly proposed Perkins County Canal, nor details of the reservoir system it would feed into.

Despite its colloquial name, the canal wouldn’t be located in Perkins County, according to the Governor’s Office. It could be on or close to the county’s northern border, though.

The general manager of the Twin Platte Natural Resources District, Kent Miller, has been promoting the project for over 25 years…

Ninety-eight of the [Colorado Water Plan] projects are in process or complete, according to Sara Leonard, spokesperson for the Colorado Water Conservation Board. But not all are construction projects. Some are water conservation projects, she said, and environment and recreation enhancements.

Joe Frank, a roundtable member and general manager of the Lower South Platte Water Conservancy District in Colorado, said he hadn’t sorted through how many of the projects would even impact the flow of the river, but said that many of them would not…

As for Nebraska’s assessment that flows could be restricted by 90%, he can’t understand how that figures.

A Nebraska Department of Resources fact sheet features that projection. That sheet shows the 90% was inferred from a 2017 Colorado report on water storage options along the South Platte to capture flows that would usually leave Colorado “in excess of the minimum legally required amounts.”

But Frank said that level of restriction could never actually happen…

More important than the straight cost estimate, though, may be another question: Would the water Nebraska actually gets out of this be worth the cost?

Anthony Schutz, a law professor at the University of Nebraska-Lincoln, and Dave Aiken, longtime water and agricultural law specialist at UNL, both pointed out it’s uncertain how much water Nebraska could get out of such a canal…

Colorado would have dibs on some water before Nebraska, even if it were to build the canal. Colorado has the right to divert the first 35,000 acre-feet of water for its own off-season storage, Aiken said, even if it cuts into what Nebraska wants to divert…

Schutz pointed out that there are other water users in line ahead of Nebraska’s canal in the compact, too — anything on the “upper” part of the river, and uses in place before Dec 17, 1921…

Could canal lead to a court battle?

There’s some ambiguity in the compact, Aiken said, and people have built projects and invested in them in the years since it was signed. The states could resolve any differences by negotiation, or by litigation…

Riley, with DNR, said that Nebraska’s approach will be to work collaboratively with Colorado, and that he expects Colorado to comply without a need for court action. If disagreements aren’t resolved, though, he said interstate compacts and conflicts like that are addressed by the U.S. Supreme Court…

The question still remains, though: How much water would Nebraska actually get out of this? Riley didn’t give an estimate, but said actual yield would vary year to year.

The South Platte River Basin is shaded in yellow. Source: Tom Cech, One World One Water Center, Metropolitan State University of Denver.

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