Ouray County is asking the state water board to delay a water court filing designed to protect streamflows so it can try to resolve issues in a separate but related water court case.
In July, the Colorado Water Conservation Board approved an instream flow water right on Cow Creek, a tributary of the Uncompahgre River, and asked staff to file for the right in water court by the end of this year. Instream flow rights are held exclusively by the state with the goal of preserving the natural environment to a reasonable degree. The state board, which is charged with protecting and developing Colorado’s water supply, holds instream flow rights on about 1,700 stream segments and 9,700 miles of stream throughout the state.
Now, Ouray County is asking the CWCB to delay the filing by six months so that the two governmental entities can try to work out the board’s opposition to a reservoir and pipeline project on Cow Creek on which the county is a co-applicant. CWCB directors will consider the request at their regular meeting Thursday.
In a November letter to Ouray County, Robert Viehl, the CWCB’s chief of the Stream and Lake Protection Section, noted that state statutes set clear rules and timelines for commenting and making hearing requests, and that the county’s request to delay the filing falls outside of those parameters.
“Any entity had the opportunity to state concerns with the Cow Creek appropriation and filing of the water right at the CWCB’s March, May and July 2021 meetings, when the appropriation was noticed before the board,” the letter reads. “This request by Ouray County is outside of the set administrative process for the appropriation and filing on instream flow water rights.”
The CWCB, at the recommendation of Colorado Parks & Wildlife, is seeking instream flow protections for a 7.4-mile reach of Cow Creek — from its confluence with Lou Creek to its confluence with the Uncompahgre River, downstream of Ridgway Reservoir. CPW says this reach contains important fisheries, including the last-known remnant population of bluehead sucker in the upper Uncompahgre River basin.
But although these state agencies want to keep water in Cow Creek, Ouray County is hoping to develop more water out of it with a pipeline and reservoir project. The county — along with Tri-County Water Conservancy District, Ouray County Water Users Association and Colorado River Water Conservation District — is proposing a project that would take water from Cow Creek and pipe it to Ridgway Reservoir. The pipeline would be above the stretch CPW is proposing for instream flow protections.
The stored water would be released for the benefit of senior downstream users such as the Uncompahgre Valley Water Users Association. The applicants are also seeking to build Ram’s Horn Reservoir on the upper reaches of Cow Creek, which would hold 25,000 acre-feet of water behind a 260-foot-tall and 270-foot-long dam. Proponents say the project would help alleviate water shortages in the upper Uncompahgre River basin.
CWCB and CPW have filed statements of opposition to the project, claiming it could injure their existing water rights on streams in the area. In an October letter to the CWCB, Ouray County attorney Carol Viner said the county will have to file its own statement of opposition if the state follows through on filing an instream flow water right by the end of the year.
“If you file in December, it will mean we must oppose your case, which will complicate not only your case, but ours,” the letter reads.
In his November reply letter, Viehl disagreed, saying that the CWCB does not feel that Ouray County’s filing as a party to the instream flow case would complicate either water court case.
Issue of ‘sequencing’
Ouray County Commissioner Ben Tisdel said the issue is one of sequencing. The Ram’s Horn Reservoir and pipeline project should get its water right approved before the instream flow water right, he said.
“We don’t want them to not do an instream flow necessarily, but if they get it right now, we would have to oppose it,” Tisdel said. “Until we have an adjudication, we don’t have a water right. And CWCB and CPW are opposers in our case. It’s that simple, really.”
According to Colorado water law, older water rights get to use their share of the river first. If approved by a water court, Ouray County’s water right would have a priority date of 2019, while the CWCB instream flow right would have a 2021 date, meaning the instream flow would be junior to the Ram’s Horn project.
But Viner, the Ouray County attorney, said the county would oppose the instream flow filing anyway.
“We would be senior to them, but they have a rigid and inflexible stream management system, and we want more flexibility and local control,” she said. “We want to be able to give the CWCB what they want without an instream flow.”
Representatives from CWCB and CPW gave a presentation to Ouray County in December 2020 about the proposed instream flow water right, at which time Viner’s letter says county commissioners raised concerns about postponing the filing. But state officials say they do not remember a request from the county to postpone a filing, nor do the meeting minutes say anything about a request. The entities met again to discuss the water project and the two water court filings in February 2021, and CPW and CWCB staff said they planned to present the proposed instream flow filing to the CWCB board at the March meeting.
The CWCB has received comment letters from Boulder-based conservation group Western Resource Advocates and the Uncompahgre Watershed Partnership, which are opposers in the Ram’s Horn case, asking the board not to delay the instream flow filing.
“The board should not lightly consider the drastic departure from its established procedures that the county now proposes,” wrote Uncompahgre Watershed Partnership Board President Dennis Murphy. “The county had more than ample opportunity to participate in public comment and/or request a hearing at appropriate points along the way.”
Viner said that the county also wants to protect flows and fish in Cow Creek and that the entities should be able to come to an agreement. The county could have protections equivalent to an instream flow written into its water-right decree, instead of the CWCB imposing a state-level mandate, she said.
“There’s a way to accomplish what they need and a way to accomplish what we need,” Viner said. “We want this to be a local project and we want them to be a partner, but we don’t want them telling us what to do.”
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