With warming temperatures, reduced snowpack and longer droughts across the western U.S., the policies and institutions that we rely upon to manage shared water resources are under strain.
For Colorado’s Front Range, the South Platte River sustains booming cities, vital industries and agricultural production. At the same time, Colorado must ensure that adequate supplies from the South Platte make their way downstream to Nebraska, under a century-old interstate compact that is under stress.
In July, Nebraska filed a U.S. Supreme Court lawsuit against Colorado over the South Platte River compact. Nebraska’s lawsuit is about defining and protecting its rights to a river that is increasingly stressed by drought and development. In a news conference on the lawsuit, Nebraska Gov. Jim Pillen said: “We’re going to fight like heck … and we’re going to do it in the United States Supreme Court.” In discussing the lawsuit with community members in Julesburg in September, Colorado Attorney General Phil Weiser said: “We cannot be afraid to litigate or fight for our rights in Colorado.”
Colorado on Wednesday filed a response brief, claiming that Nebraska’s case is not ripe for a Supreme Court case. (The high court has not yet decided if it will hear the case.)
Such lawsuits are nothing new, but they are notoriously time-consuming and costly. Rather than spending years in court, Nebraska and Colorado should take a cue from history and negotiate a settlement — one that reflects current realities and shared interests.
Conflicts are a perennial feature of interstate river basins, particularly when downstream states feel shortchanged. In the early-mid 1900s, states adopted compacts to address water disputes, but by the 1970s downstream states began to question upstream states’ compliance with their water delivery commitments and filed U.S. Supreme Court lawsuits to clarify and enforce required water deliveries.
Colorado, as an “upstream” state on seven interstate river compacts, is no stranger to Supreme Court lawsuits. Some of these lawsuits — such as on the Arkansas, Rio Grande and Republican rivers — were triggered by tributary groundwater pumping in upstream states that reduced river flows. Since the original compacts did not address groundwater, years of litigation ensued by Kansas and Texas against its upstream neighbors.
☀ MORE IN OPINION
The South Platte River conflict raises a different issue, but one that is solvable: how to share winter river flows. Signed in 1923, the South Platte compact guarantees a share of water to Nebraska during irrigation season. In the fall and winter, both states may use river flows and Colorado is not required to deliver a defined amount of water to Nebraska, with one exception.
Nebraska can access a share of winter water under the compact if it completes a canal diverting water in Colorado and carrying it to Nebraska. Nebraska abandoned the canal project before the compact was adopted but recently revived the project. Without the canal, Nebraska fears that winter river flows will be entirely diverted by Colorado through efforts to build more storage reservoirs.
Nebraska is threatening to use eminent domain to acquire land in Colorado near the state line for the canal. This has raised serious concerns by Colorado landowners and farmers in Sedgwick County and would limit Colorado’s ability to use the waters of the South Platte.
The canal, while mentioned in the compact, is not necessary for Nebraska and Colorado to jointly manage and share river flows. While Colorado has urged the Supreme Court not to take up the case, the question is, what comes next?
We propose the states drop their posturing, sit down and negotiate a more collaborative solution to the challenges facing the South Platte basin.
Prior Supreme Court rulings have shown that states can — and should — develop shared management systems to adapt to changing conditions. These systems include deliveries and accounting for groundwater diversions, improved hydrologic modeling, monitoring water diversions and deliveries, and enforcement mechanisms. Such actions have proven effective in resolving conflicts and enhancing shared decision making.
Nebraska and Colorado have decades of experience managing shared rivers. Both states have claims to winter river flows and both want to invest in actively managing those flows for high valued uses and environmental protection.
Rather than fighting over a canal, they should invest in shared infrastructure — such as surface and groundwater storage — backed by joint monitoring, conflict resolution and enforcement procedures that neither state can unilaterally override.
How Nebraska and Colorado resolve their differences can set the stage for the next conflict in other river basins. As climate change intensifies and water becomes scarcer, regional cooperation will be essential.
Litigation may clarify legal rights, but it rarely builds trust or long-term solutions.
Nebraska and Colorado have an opportunity to demonstrate real leadership and show that collaboration is possible and preferable. The South Platte River and the people and ecosystems who depend on it deserve better than another courtroom battle. They deserve a future shaped by shared vision, not division.
Tanya Heikkila, of Denver, is a professor in the School of Public Affairs at the University of Colorado Denver, where she does research on conflict and collaboration in environmental governance.
Edella Schlager, of Tucson, Arizona, is a professor in the School of Government and Public Policy at the University of Arizona and an expert in collaborative watershed management who was born and raised in Scottsbluff, Nebraska.
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