A Colorado judge will consider next week whether regional water managers have enough ground to stand on to pursue a plan to divert water from Cow Creek into Ridgway Reservoir, as a long-running battle between water utilities, environmentalists and ranchers inches toward a 2027 trial date.

Tri-County Water Conservancy District, which has spent nearly $1 million on the fight to date, and other proponents of the plan to construct a pipeline to divert the water will aim to beat back arguments that their claims to the creek were “commandeered” from a decade-old planning study that was never intended to support new water development.

The Ouray County Water Users Association, the Colorado River District and Ouray County have sided with the conservancy district. The county, however, has largely taken a back seat in the litigation since handing over the lead role to Tri-County two years ago.

Advocates of the Cow Creek diversion have argued in recent court filings that it would provide additional water storage in Ridgway Reservoir in peri- ods of prolonged drought, and bolster Tri-County’s production of hydropower at the reservoir’s outlet, among other benefits.

But opponents, who include ranchers east of Ridgway, state officials and environmental groups, argue the project’s goals have been a moving target since the water rights application was filed in 2019. And they’ve suggested the application was a hasty attempt to get ahead of an effort by the state to keep water in the creek for ecological benefits.

Next week’s arguments, which will be held in Delta before Division 4 Water Court Judge Steven L. Schultz, may determine whether the case can be decided on the merits before a trial that’s currently scheduled for next May. Key to the debate will be whether the effort’s backers sketched out a clear enough vision of the Cow Creek project when they began their push for it seven years ago.

Ram’s Horn, then and now

In its original 2019 form, the Cow Creek venture included a proposal for a new reservoir that traces its origins back to the long-dormant dreams of the Bureau of Reclamation. Conceived in the 1960s as part of the Dallas Creek Project, Ram’s Horn Reservoir would have swallowed the upper reaches of Cow Creek with a dam built roughly where it meets County Road 12.

Though authorized by Congress in 1968, the Dallas Creek Project ultimately produced only one dam at Ridgway. A half century later, the Cow Creek project’s proponents advocated reviving the Ram’s Horn vision to store about 25,000 acre-feet of water as a reserve for water users in the upper Uncompahgre River basin.

The 2019 proposal also included plans to construct a pipeline downstream of the Ram’s Horn dam to send water to Ridgway Reservoir. Back then, the project had the full backing of Ouray County commissioners.

“It’s an amazing step that has taken quite a long time to get to, and it’s a very important thing for the county,” then-Commissioner Ben Tisdel said at the time. Carol Viner, the then-county attorney, and Marti Whitmore, counsel for the Ouray County Water Users Association, took the lead in filing for the water rights. She no longer represents the water users.

Critics of the project, however, alleged that the county and its allies were trying to get ahead of a planned instream flow right that was set to be filed by the Colorado Water Conservation Board. That right, which was applied for in a separate case in 2021 and has largely been on hold while the Cow Creek effort plays out, would keep water in the creek for the benefit of endangered fish.

Supporters of the project ultimately dropped the reservoir component of the application after years of litigation. And by early 2024, attitudes in county government leadership toward the project had changed.

In January 2024, Commissioners Jake Niece and Lynn Padgett backed the removal of Whitmore as the county’s representative on the Colorado River District board. They replaced her with Cary Denison, a longtime water manager with extensive experience in conservation and restoration and one of the ranchers fighting the Cow Creek project in court.

Niece argued the opposition of most ranchers east of Ridgway, who “would seemingly serve to benefit the most” from the project shows that “there was a lack of due diligence” in its design.

“The project still has some outstanding problems that I can’t really be on board with,” he told the Plaindealer.

A month after the commissioners appointed Denison, the county announced it was stepping down as the lead party in the case, handing over the reins to Tri-County. Soon after, the Montrose- based water utility brought on attorneys from Somach Simmons & Dunn, a water law firm in Boulder. To date, Tri-County has spent roughly $925,000 on legal and engineering expenses in the Cow Creek litigation, according to Tri-County General Manager Jerry Young.

Young told the Plaindealer that developing water sources for its customers “has been central to the district’s mission since its inception” in 1957, when it was created as the administrator of the Dallas Creek Project. And he argued that the Cow Creek pipeline “would provide supplemental irrigation supplies for agricultural users above and below the reservoir, as well as water for future municipal needs.”

‘Not one’ Across the aisle, the project’s supporters face a coalition of environmental groups – including Western Resource Advocates and the Uncompahgre Watershed Partnership – and ranchers east of Ridgway trying to stop the Cow Creek initiative in its tracks.

The most prolific ranching opponent, in terms of court filings, has been the Sleeping Indian Ranch owned by the Friedkin family. Counsel for the ranch, with Aspen-based Garfield & Hecht, declined to comment on the case.

Denison, who lives just north of Cow Creek’s confluence with the Uncompahgre River and opposes the project as an individual, argued local support for the pipeline is all but nonexistent.

“Not a single irrigator in this county is in favor of this project – not one,” Denison said. “Maybe there’s some below the reservoir, but it won’t make a bit of difference to them. Their lives will be unchanged.”

Counsel for the Ouray County Water Users Association didn’t respond to the Plaindealer’s request for comment.

At next week’s hearing, those opponents are expected to argue that the application’s shifting goals doom its legal legitimacy. The initial water rights bid, opponents argue, relied on state-commissioned regional planning studies dating from 2016 that doesn’t pass muster in backing up the applicants’ claims.

Western Resource Advocates argued in court filings earlier this year that the applicants “commandeered the studies as support for their claims to appropriate a great portion – potentially more than 50,000 acre-feet – of the remaining unappropriated water” in the upper Uncompahgre basin.

Tri-County, the opponents say, has since tried to substitute a new engineering study that more closely hews to the current version of the proposal. But the changing of horses mid-stream shows that the original 2019 application was a speculative one, which is banned under Colorado law, according to the opponents’ court filings.

In its responses, Tri-County has said that it doesn’t necessarily need to have every last duck in a row to secure the water right, including securing a contract from the Bureau of Reclamation for storage in Ridgway Reservoir – an arrangement the Bureau “has not rejected,” the utility said.

“For purposes of obtaining a decree in this case,” Tri-County said, “that is the only fact that matters.”