Nebraska’s Interest in the South Platte River Compact
Colorado, being the Headwaters state (see LWS 6/8/21 blog), is subject to several interstate compacts that regulate water use in the river basins that rise in Colorado but pass into downstream states. The South Platte River Compact (“Compact”) is one such compact. It was signed between the States of Colorado and Nebraska on April 27, 1923. Generally, the primary administration of the Compact is that Colorado has to deliver 120 cubic feet per second (“cfs”) at the Julesburg gage in Colorado, near the state line, to Nebraska from April 1 to October 15.
Figure 1: Colorado Division 1 Water Districts with Water District 64 highlighted.
This water has to be delivered to Nebraska from the “Lower Section” of the river as defined by the Compact. What this means is very important as the Lower Section is defined as “that part of the South Platte River in the State of Colorado between the west boundary of Washington County and the intersection of said river with the boundary line common to the signatory States.” The Upper Section of the South Platte River, west of the west boundary of Washington County, is not subject to this Compact. In terms of water rights administrative practices in Colorado that definition is Water District 64 (Figure 1).
What this means related to administration of water rights in Colorado is that only the water rights in District 64 are subject to compliance with the Compact. In other words, water rights in the adjacent but upstream Districts 1 and 2, and districts further upstream in the South Platte River Basin, are not subject to curtailment to meet the flow obligation to Nebraska under the Compact. In addition, any water rights in District 64 that were decreed prior to June 14, 1897 are considered “pre-Compact” water rights and are not subject to curtailment under the Compact.
During the period from October 15 through April 1 of each year, Colorado does not have a delivery obligation to Nebraska. Article IV.1 states that:
“At all times between the fifteenth day of October of any year and the first day of April of the next succeeding year, Colorado shall have the full and uninterrupted use and benefit of the waters of the river flowing within the boundaries of the State, except as otherwise provided by Article VI.”
Ah yes! Article VI of the Compact has stirred up a lot of interest, anxiety, excitement recently, depending on your point of view.
Article VI of the Compact states that:
“It is the desire of Nebraska to permit its citizens to cause a canal to be constructed and operated for the diversion of water from the South Platte River within Colorado for irrigation of lands in Nebraska; that said canal may commence on the south bank of said river at a point southwesterly from the town of Ovid, Colorado, and may run thence easterly through Colorado along or near the line of survey of the formerly proposed “Perkins County Canal” (sometimes known as the “South Divide Canal”) and into Nebraska...”
What this means is that Nebraska has the legal right under the Compact to come into Colorado, at the town of Ovid, and construct a canal that will convey water at a rate not to exceed 500 cfs, and deliver it to Nebraska for irrigation use, i.e., the Perkins County Ditch.
There are a couple of caveats to the use of that water: (1) it has to be for irrigation use and (2) it can only be taken from October 15 to April 1, traditionally the non-irrigation season. Other limitations include that Colorado has the superior right to store up to 35,000 acre-feet of water in the Lower Section during the October 15-April 1 period that is not affected by Nebraska’s rights in Article VI, and any rights decreed in Colorado prior to December 17, 1921 are protected from curtailment by Nebraska’s entitlement.
While it is certainly possible that Nebraska could exercise its rights under the Compact, there are a number of hurdles that will have to be overcome prior to this becoming a reality, not the least of which are financial. Since the canal can only divert during the non-irrigation season, but the water has to be used for irrigation purposes, that would seem to indicate that storage will also have to be provided, in addition to the Perkins County Canal. There are also environmental issues associated with endangered species in Nebraska, which are already the subject of the Tri-States Agreement (Colorado, Wyoming, and Nebraska), which established the Platte River Recovery Implementation Program (“PRRIP”) to protect river flows in these endangered areas.
Look for subsequent blogs describing the Tri-States Agreement and the PRRIP.
LWS is well-versed in the law of the river on the South Platte and is currently working on a collaborative municipal-agricultural joint use project, the Platte Valley Water Partnership, that encompasses portions of the Upper and Lower Sections of the river (for more information see LWS September 2020 blog series on an “Integrated and Sustainable Water Management Plan for a Growing City - A Case Study” Part 1, Part 2, Part 3).
If you have any water rights or surface water hydrology issues, feel free to give us a call (303-350-4090) or an email.
Bruce Lytle, P.E. bruce@lytlewater.com
Chris Fehn, P.E., P.G. chris@lytlewater.com
Ben Bader ben@lytlewater.com
Anna Elgqvist, E.I. anna@lytlewater.com
