On Thursday, U.S. District Judge Karin Immergut, a Trump appointee, ruled on the federal lawsuit brought by a coalition of environmental groups and fisheries organizations led by WaterWatch of Oregon in 2020 against the Winchester Water Control District (WWCD), owners of the condemned and uninsurable Winchester Dam on the North Umpqua River.
“Although this court credits testimony that coho salmon may jump at the Winchester Dam, this court does not find plaintiffs have proven by a preponderance of the evidence that coho salmon were physically killed or injured as a result of jumping at flows through the dam,” Judge Immergut wrote.
The plaintiffs’ lawsuit asserted that the 135-year-old dam was violating the Endangered Species Act, causing an illegal “take” of Oregon Coast coho salmon by blocking access to spawning habitat and attracting fish to impassable areas of the dam.
A “take” is defined as harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting any endangered or threatened species.
The Oregon Department of Fish and Wildlife (ODFW) calls the deadbeat Winchester Dam the worst manmade obstacle to fish on any Oregon River.
But Judge Immergut ruled that although the derelict dam may delay the migration of a threatened species of salmon, its impact is not significant enough to violate federal environmental laws.
Judge Immergut wrote in the 35-page finding, “This court concludes that plaintiffs have not proven by a preponderance of the evidence that defendant is liable for ‘take’ of Oregon Coast coho salmon under the Endangered Species Act.”
This decision is of serious concern as ODFW recently reported that coho salmon populations at Winchester Dam have diminished by 71% since 2005.
Jim McCarthy, WaterWatch’s southern Oregon program director, said in a statement, “This is a disappointing decision, but it doesn’t change the fact that coho salmon are listed under the Endangered Species Act and Winchester Dam needs to come out. It’s a flawed and outdated dam and the court recognized the dam has significant issues. Our campaign to remove the dam continues.”
Providing no hydroelectricity, flood control, or irrigation, the Winchester Dam’s sole function for six decades has been as a mile and a half long private water ski lake for a few dozen privileged speedboat owners at the exclusion of the public.
Judge Immergut conducted a five-day bench trial in April. In their lawsuit, the plaintiffs asked the judge to remove the dam or issue an order requiring the WWCD to replace the dam’s 80-year-old, substandard fish ladder.
There are 21 species of coho salmon, one of which relies on the North Umpqua River for critical habitat as they spawn upstream of the crumbling Winchester Dam.
The plaintiffs argued that “false attraction flows” were killing and injuring salmon. Each of the hundreds of leaks in the Winchester Dam create false attraction flows which the fish mistake for the river current. Since the dam’s fish ladder is on the wrong side of the river and 400 feet from the mainstream, it lures fish away from the fish ladder.
The plaintiffs asserted that the salmon expended unnecessary energy by jumping at false attraction flows, which both reduces the likelihood they will successfully spawn and may prevent them from reaching ideal spawning habitat upstream.
But Judge Immergut wasn’t buying it. “This court does not find that any delay caused by the dam significantly impairs essential behavioral patterns,” she wrote.
Judge Immergut ruled that although the dam’s fish ladder doesn’t comply with current fish passage standards, it isn’t responsible for killing coho salmon.
“The Winchester Dam fish ladder contains a livestream camera and is immediately upstream of a popular park and boat ramp,” Immergut wrote. “This court finds that, if significant fish mortality were occurring at Winchester Dam, it would likely be observable.”
To prove their claim that the dam’s negative affect of the salmon constituted a “take,” the plaintiffs had to prove the injury is the kind that the act covers and that the activity directly causes it. Judge Immergut conceded that, while the dam may delay migration, there wasn’t enough evidence to support the accusation that the dam physically kills or injures coho or “significantly impairs” their migration.
The lawsuit was put on hold for a year so the Winchester Water Control District (WWCD) could conduct “repairs” of the dam in 2023. But Ryan Beckley, WWCD Board of Directors president and owner of TerraFirma Foundation Systems, incurred a laundry list of permit violations and is charged with killing an estimated 550,000 Pacific lamprey, a wild, migrator native fish. The Oregon Department of Justice is now suing the WWCD for $27.6 million in recovery damages for inadequate fish salvage efforts during the 2023 “repairs.”
Judge Immergut wrote, “Based on the foregoing Findings of Fact and Conclusions of Law, the Court concludes that WWCD is not liable for take of Oregon Coast coho salmon through its operation of the Winchester Dam. The parties are ORDERED to jointly submit a form of judgment consistent with these Findings and Conclusions to the Court by August 27, 2025.
The biggest losers in the lawsuit were the salmon. The Winchester Dam remains the worst manmade obstacle to fish on any river in Oregon.
