§ 37-65-101 — South Platte River compact

Colorado § 37-65-101

• Jurisdiction: Colorado
• Title 37: Water and
• Art.: South Platte River Compact

Text

The General Assembly hereby
approves the compact, designated as the South Platte River Compact, between
the states of Colorado and Nebraska, signed at the City of Lincoln, State of
Nebraska, on the 27th day of April, A.D. 1923, by Delph E. Carpenter as the
Commissioner for the State of Colorado, under authority of Chapter 243, Session
Laws of Colorado, 1921, and Chapter 190, Session Laws of Colorado, 1923, and by
Robert H. Willis as the Commissioner for the State of Nebraska, thereunto duly
authorized, which said compact is as follows:

South Platte River Compact Between

The States Of

Colorado And Nebraska

The State of Colorado and the State of Nebraska, desiring to remove all
causes of present and future controversy between said States, and between
citizens of one against citizens of the other, with respect to the waters of the South
Platte River, and being moved by considerations of interstate comity, have resolved
to conclude a compact for these purposes and, through their respective Governors,
have named as their commissioners:

Delph E. Carpenter, for the State of Colorado; and Robert H. Willis, for the
State of Nebraska; who have agreed upon the following articles:

Article I

In this compact:

1. The State of Colorado and the State of Nebraska are designated,
respectively, as Colorado and Nebraska.

2. The provisions hereof respecting each signatory State, shall include and
bind its citizens and corporations and all others engaged or interested in the
diversion and use of the waters of the South Platte River in that State.

3. The term Upper Section means that part of the South Platte River in the
State of Colorado above and westerly from the west boundary of Washington
County, Colorado.

4. The term Lower Section means 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.

5. The term Interstate Station means that streams gauging station
described in Article II.

6. The term flow of the river at the Interstate Station means the measured
flow of the river at said station plus all increment to said flow entering the river
between the Interstate Station and the diversion works of the Western Irrigation
District in Nebraska.

Article II

1. Colorado and Nebraska, at their joint expense, shall maintain a stream
gauging station upon the South Platte River at the river bridge near the town of
Julesburg, Colorado, or at a convenient point between said bridge and the diversion
works of the canal of the Western Irrigation District in Nebraska, for the purpose of
ascertaining and recording the amount of water flowing in said river from Colorado
into Nebraska and to said diversion works at all times between the first day of April
and the fifteenth day of October of each year. The location of said station may be
changed from year to year as the river channels and water flow conditions of the
river may require.

2. The State Engineer of Colorado and the Secretary of the Department of
Public Works of Nebraska shall make provision for the co-operative gauging at and
the details of operation of said station and for the exchange and publication of
records and data. Said state officials shall ascertain the rate of flow of the South
Platte River through the Lower Section in Colorado and the time required for
increases or decreases of flow, at points within said Lower Section, to reach the
Interstate Station. In carrying out the provisions of Article IV of this compact,
Colorado shall always be allowed sufficient time for any increase in flow (less
permissible diversions) to pass down the river and be recorded at the Interstate
Station.

Article III

The waters of Lodgepole Creek, a tributary of the South Platte River flowing
through Nebraska and entering said river within Colorado, hereafter shall be divided
and apportioned between the signatory States as follows:

1. The point of division of the waters of Lodgepole Creek shall be located on
said creek two miles north of the boundary line common to the signatory states.

2. Nebraska shall have the full and unmolested use and benefit of all waters
flowing in Lodgepole Creek above the point of diversion and Colorado waives all
present and future claims to the use of said waters. Colorado shall have the
exclusive use and benefit of all waters flowing at or below the point of division.

3. Nebraska may use the channel of Lodgepole Creek below the point of
division and the channel of the South Platte River between the mouth of Lodgepole
Creek and the Interstate Station, for the carriage of any waters of Lodgepole Creek
which may be stored in Nebraska above the point of division and which Nebraska
may desire to deliver to ditches from the South Platte River in Nebraska, and any
such waters so carried shall be free from interference by diversions in Colorado and
shall not be included as a part of the flow of the South Platte River to be delivered
by Colorado at the Interstate Station in compliance with Article IV of this compact,
provided, however, that such runs of stored water shall be made in amounts of not
less than ten cubic feet per second of time and for periods of not less than twenty-four hours.

Article IV

The waters of the South Platte River hereafter shall be divided and
apportioned between the signatory States as follows:

1. 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.

2. Between the first day of April and the fifteenth day of October of each
year, Colorado shall not permit diversions from the Lower Section of the river, to
supply Colorado appropriations having adjudicated dates of priority subsequent to
the fourteenth day of June, 1897, to an extent that will diminish the flow of the river
at the Interstate Station, on any day, below a mean flow of 120 cubic feet of water
per second of time, except as limited in paragraph three (3) of this Article.

3. Nebraska shall not be entitled to receive and Colorado shall not be
required to deliver, on any day, any part of the flow of the river to pass the
Interstate Station, as provided by paragraph two (2) of this Article, not then
necessary for beneficial use by those entitled to divert water from said river within
Nebraska.

4. The flow of the river at the Interstate Station shall be used by Nebraska to
supply the needs of present perfected rights to the use of water from the river
within said State before permitting diversions from the river by other claimants.

5. It is recognized that variable climatic conditions, the regulation and
administration of the stream in Colorado, and other causes, will produce diurnal and
other unavoidable variations and fluctuations in the flow of the river at the
Interstate Station, and it is agreed that, in the performance of the provisions of said
paragraph two (2), minor or compensating irregularities and fluctuations in the flow
at the Interstate Station shall be permitted; but where any deficiency of the mean
daily flow at the Interstate Station may have been occasioned by neglect, error or
failure in the performance of duty by the Colorado water officials having charge of
the administration of diversions from the Lower Section of the river in that state,
each such deficiency shall be made up, within the next succeeding period of
seventy-two hours, by delivery of additional flow at the Interstate Station, over and
above the amount specified in paragraph two (2) of this Article, sufficient to
compensate for such deficiency.

6. Reductions in diversions from the Lower Section of the river, necessary to
the performance of paragraph two (2) of this Article by Colorado, shall not impair
the rights of appropriators in Colorado (not to include the proposed Nebraska canal
described in Article VI), whose supply has been so reduced, to demand and receive
equivalent amounts of water from other parts of the stream in that State according
to its Constitution, laws, and the decisions of its courts.

7. Subject to compliance with the provisions of this Article, Colorado shall
have and enjoy the otherwise full and uninterrupted use and benefit of the waters
of the river which hereafter may flow within the boundaries of that State from the
first day of April to the fifteenth day of October in each year, but Nebraska shall be
permitted to divert, under and subject to the provisions and conditions of Article VI,
any surplus waters which otherwise would flow past the Interstate Station.

Article V

1. Colorado shall have the right to maintain, operate, and extend, within
Nebraska, the Peterson Canal and other canals of the Julesburg Irrigation District
which now are or may hereafter be used for the carriage of water from the South
Platte River for the irrigation of lands in both states, and Colorado shall continue to
exercise control and jurisdiction of said canals and the carriage and delivery of
water thereby. This Article shall not excuse Nebraska water users from making
reports to Nebraska officials in compliance with the Nebraska laws.

2. Colorado waives any objection to the delivery of water for irrigation of
lands in Nebraska by the canals mentioned in paragraph one (1) of this Article, and
agrees that all interests in said canals and the use of waters carried thereby, now or
hereafter acquired by owners of lands in Nebraska, shall be afforded the same
recognition and protection as are the interests of similar land owners served by said
canals within Colorado; provided, however, that Colorado reserves to those in
control of said canals the right to enforce the collection of charges or assessments,
hereafter levied or made against such interest of owners of the lands in Nebraska,
by withholding the delivery of water until the payment of such charges or
assessments; provided, however, such charges or assessments shall be the same as
those levied against similar interests of owners of lands in Colorado.

3. Nebraska grants to Colorado the right to acquire by purchase,
prescription, or the exercise of eminent domain, such rights-of-way, easements or
lands as may be necessary for the construction, maintenance, operation, and
protection of those parts of the above mentioned canals which now or hereafter
may extend into Nebraska.

Article VI

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, and that said project shall be permitted to
divert waters of the river as hereinafter provided. With respect to such proposed
canal it is agreed:

1. Colorado consents that Nebraska and its citizens may hereafter construct,
maintain, and operate such a canal and thereby may divert water from the South
Platte River within Colorado for use in Nebraska, in the manner and at the time in
this Article provided, and grants to Nebraska and its citizens the right to acquire by
purchase, prescription, or the exercise of eminent domain such rights-of-way,
easements or lands as may be necessary for the construction, maintenance, and
operation of said canal; subject, however, to the reservations and limitations and
upon the conditions expressed in this Article which are and shall be limitations upon
and reservations and conditions running with the rights and privileges hereby
granted, and which shall be expressed in all permits issued by Nebraska with
respect to said canal.

2. The net future flow of the Lower Section of the South Platte River, which
may remain after supplying all present and future appropriations from the Upper
Section, and after supplying all appropriations from the Lower Section perfected
prior to the seventeenth day of December, 1921, and after supplying the additional
future appropriations in the Lower Section for the benefit of which a prior and
preferred use of thirty-five thousand acre-feet of water is reserved by
subparagraph (a) of this Article, may be diverted by said canal between the
fifteenth day of October of any year and the first day of April of the next
succeeding year subject to the following reservations, limitations and conditions:

(a) In addition to the water now diverted from the Lower Section of the river
by present perfected appropriations, Colorado hereby reserves the prior, preferred
and superior right to store, use and to have in storage in readiness for use on and
after the first day of April in each year, an aggregate of thirty-five thousand acre-feet of water to be diverted from the flow of the river in the Lower Section between
the fifteenth day of October of each year and the first day of April of the next
succeeding year, without regard to the manner or time of making such future uses,
and diversions of water by said Nebraska canal shall in no manner impair or
interfere with the exercise by Colorado of the right of future use of the water
hereby reserved.

(b) Subject at all times to the reservation made by subparagraph (a) and to
the other provisions of this Article, said proposed canal shall be entitled to divert
five hundred cubic feet of water per second of time from the flow of the river in the
Lower Sections, as of priority of appropriation of date December 17, 1921, only
between the fifteenth day of October of any year and the first day of April of the
next succeeding year upon the express condition that the right to so divert water is
and shall be limited exclusively to said annual period and shall not constitute the
basis for any claim to water necessary to supply all present and future
appropriations in the Upper Section or present appropriations in the Lower Section
and those hereafter to be made therein as provided in subparagraph (a).

3. Neither this compact nor the construction and operation of such a canal
nor the diversion, carriage and application of water thereby shall vest in Nebraska,
or in those in charge or control of said canal or in the users of water therefrom, any
prior, preferred or superior servitude upon or claim or right to the use of any water
of the South Platte River in Colorado from the first day of April to the fifteenth day
of October of any year or against any present or future appropriator or use of water
from said river in Colorado during said period of every year, and Nebraska
specifically waives any such claims and agrees that the same shall never be made
or asserted. Any surplus waters of the river, which otherwise would flow past the
Interstate Station during such period of any year after supplying all present and
future diversions by Colorado, may be diverted by such a canal, subject to the other
provisions and conditions of this Article.

4. Diversion of water by said canal shall not diminish the flow necessary to
pass the Interstate Station to satisfy superior claims of users of water from the
river in Nebraska.

5. No appropriations of water from the South Platte River by any other canal
within Colorado shall be transferred to said canal or be claimed or asserted for
diversion and carriage for use on lands in Nebraska.

6. Nebraska shall have the right to regulate diversions of water by said canal
for the purposes of protecting other diversions from the South Platte River within
Nebraska and of avoiding violations of the provisions of Article IV; but Colorado
reserves the right at all times to regulate and control the diversions by said canal to
the extent necessary for the protection of all appropriations and diversions within
Colorado or necessary to maintain the flow at the Interstate Stations as provided by
Article IV of this compact.

Article VII

Nebraska agrees that compliance by Colorado with the provisions of this
compact and the delivery of water in accordance with its terms shall relieve
Colorado from any further or additional demand or claim by Nebraska upon the
waters of the South Platte River within Colorado.

Article VIII

Whenever any official of either State is designated herein to perform any
duty under this compact, such designation shall be interpreted to include the state
official or officials upon whom the duties now performed by such official may
hereafter devolve, and it shall be the duty of the officials of the State of Colorado
charged with the duty of the distribution of the waters of the South Platte River for
irrigation purposes, to make deliveries of water at the Interstate Station in
compliance with this compact without necessity of enactment of special statutes
for such purposes by the General Assembly of the State of Colorado.

Article IX

The physical and other conditions peculiar to the South Platte River and to
the territory drained and served thereby constitute the basis for this compact and
neither of the signatory States hereby concedes the establishment of any general
principle or precedent with respect to other interstate streams.

Article X

This compact may be modified or terminated at any time by mutual consent
of the signatory States, but, if so terminated and Nebraska or its citizens shall seek
to enforce any claims of vested rights in the waters of the South Platte River, the
statutes of limitation shall not run in favor of Colorado or its citizens with reference
to claims of the Western Irrigation District to the water of the South Platte River
from the sixteenth day of April, 1916, and as to all other present claims from the
date of the approval of this compact to the date of such termination, and the State
of Colorado and its citizens who may be made defendants in any action brought for
such purpose shall not be permitted to plead the statutes of limitation for such
period of time.

Article XI

This compact shall become operative when approved by the Legislature of
each of the signatory States and by the Congress of the United States. Notice of
approval by the Legislature shall be given by the Governor of each State to the
Governor of the other State and to the President of the United States, and the
President of the United States is requested to give notice to the Governors of the
signatory States of the approval by the Congress of the United States.

IN WITNESS WHEREOF, the Commissioners have signed this compact in
duplicate originals, one of which shall be deposited with the Secretary of State of
each of the Signatory States.

Done at Lincoln, in the State of Nebraska, this 27th day of April, in the year of
our Lord One Thousand Nine Hundred and Twenty-three.

Delph E. Carpenter,

Robert H. Willis.

Legislative History

Source: L. 25: p. 529, � 1. CSA: omitted. CRS 53: � 148-4-1. C.R.S. 1963: � 149-4-1.