37-65-101. South Platte River compact. 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.
|
