ODFW Orders Winchester Dam Owners to Build a New Fish Ladder

On September 17, 2024, Debbie Colbert, the new Director of the Oregon Department of Fish and Wildlife (ODFW), sent the Winchester Water Control District (WWCD), owners of the Winchester Dam on the North Umpqua River, a Notice of Noncompliance pertaining to August 2023 repairs of the dam. These repairs resulted in an unprecedented fish kill of more than 550,000 Pacific lamprey and a $27.5 million lawsuit brought by ODFW and the Oregon Department of Justice.

The Notice informed WWCD that “ODFW has concluded that you, the Winchester Water Control District failed to comply with the requirements of ORS 509.585 (4) and OAR 635-412-0020 (3), prior to conducting work in August and September 2023 on the Winchester Dam, the constituted ‘construction,’ as defined in OAR 635-412-0005 (10) (b) (ii), therefore, ODFW requires that you install fish passage at Winchester dam, consistent with applicable standards, and in the timeline established in this proposed order.”

The Notice of Noncompliance contains a detailed 48-month schedule (2024-2028) for the construction of a new state-of-the-art fish ladder at Winchester Dam (published at the bottom of this page).

Unfortunately, a new fish ladder will cost upwards of $25 million – considerably more than the WWCD has spent in total on dam maintenance since it acquired the derelict dam 45 years ago. 

Condemned in 1976, the 450-foot Winchester Dam, provides no hydroelectricity, no irrigation, and no flood control. Its sole function is as a mile-and-a-half long private waterski lake used exclusively by the WWCD, an association of privileged homeowners who live around the dam.

ODFW says “the following native migratory fish species are currently present or have a historically been present in the North Umpqua River:” Winter Steelhead, Summer, Steelhead, Fall Chinook, Spring Chinook, Coho Salmon, Cutthroat Trout, Chum Salmon, Pink Salmon, Sockeye Salmon, Pacific Lamprey, Umpqua Pikeminnow, Tyee Sucker, and Sturgeon.

The Winchester Dam is currently ODFW’s second highest priority for fish passage among private dams in Oregon. The dam’s 80-year-old concrete fish ladder is substandard and worn down to the rusting rebar; it’s 400-feet from the primary summer flow, and it’s on the wrong side of the river, making it difficult for fish to locate.

During the summer 2023 repairs, WWCD contractors drilled more than 100 six-inch tie-rod holes in the face of the dam. These holes were never plugged, so the dam leaks exponentially worse than it did before the 2023 repairs. Each leak creates a “false attraction flow” that eludes migratory fish who mistake it for the river’s main stream and exhaust themselves attempting in vain to find their way upstream.

ODFW’s Notice of Noncompliance describes “inadequate fishway attraction flows at the fishway [fish ladder] entrance (s) and excessive false attraction flows. This discrepancy from design standards and criteria can prevent or delay, upstream migrating fish from finding the fish ladder entrance, which can result in fish injury, or harm, including stress, by NMF [native migratory fish] expending, effort in multiple attempts to leap over the dam… The “deteriorated internal fishway walls” of the fish ladder “are spalling [fragmenting], which can cause abrasions to fish and result in fish injury, or harm, including stress” and the “presence of exposed rebar, in certain locations, which can cause injuries and abrasions to fish and result in a harm and fish mortality.” 

The 17-foot Winchester Dam is too high for native fish to jump. The “water surface elevation jump height … which exceed criteria for Catodsomus species and juvenile salmonids…” and “inadequate water depths below the crest of the dam, for downstream, migrating fish species that pass over the dam to ensure fish safely fall into water of adequate depth. This discrepancy in design standards and criteria can result in fish falling directly onto the concrete apron, or rocks immediately below the dam, which can result in fish injury, harm, and mortality.”

The Notice of Noncompliance states that “ORS 509.625 (3) (b) (A) authorizes ODFW to order installation of fish passage at Winchester Dam, without regard for funding sources because WWCD is already subject to an obligation to install fish passage or provide alternatives to fish passage in Winchester Dam.”

This means WWCD has to build a brand new, state of the art multi-million-dollar fish ladder, like the one at the Soda Springs Dam 60 miles upstream. 

Some of the permit violations chronicled in ODFW’s Notice of Noncompliance stem from WWCD and their contractors repeatedly spending as little money as possible on dam maintenance. For example, they were too frugal to rent a dump truck, so they stored wet concrete in a makeshift super sack retention pond. This decision resulted in dozens of yards of toxic green concrete contaminating the river (and the drinking water supply for 37,700 county residents), as well as a $134,000 fine from the Oregon Department of Environmental Quality.

In an effort force the owners of deadbeat dams (like Winchester Dam) to bring their inadequate fish passage into compliance, in 2022, ODFW updated regulation 635-412-0005.

According to Shaun Clements, ODFW’s Deputy Director of Inland Fisheries, one of the changes to OAR 635-412-0005 requires that dam owners work with ODFW “prior to any work occurring, to determine whether that proposed work would be a ‘trigger’ under Oregon’s fish passage … one such ‘trigger’ is defined as major repairs that impact 30% by volume at the time, or 30% of the barrier of the top upstream or downstream faces of the dam.”

This means that if more than 30% of the dam is repaired, it automatically triggers ODFW’s reevaluation of the dam and its fish passage, frequently requiring that the fish passage be brought into compliance.

Loathe to spend money maintaining their private waterski lake, WWCD wanted to make sure they didn’t trigger this new regulation when they were planning the summer 2023 Winchester Dam repairs. To this end, they submitted their Fish Passage Plan Application (FPPA) for the planned dam repairs on October 18, 2022. ODFW officials accommodatingly went out of their way over their Christmas holiday to approve make sure WWCD’s FPPA was approved on December 28, 2022 – 72 hours before the new “30% Trigger” rule took effect.

According to ODFW’s September 17, 2024, Notice of Noncompliance, “Between October 18, 2022, when WWCD submitted its 2022 FPPA [fish passage plan] and August 7, 2023, when WWCD or its contractors commenced work, WWCD did not amend its 2022 FPPA to address any changes to its plan work nor submit to ODFW any new fish passage plan a request for an exemption for any additional work to be completed at the Winchester Dam…. Between August 7, 2023, and September 5, 2023, WWCD, or its contractors, carried out work on the Winchester Dam that was not disclosed or otherwise specifically described within WWCDs 2022 FPPA.”

According to the Completion Report in ODFW’s September 17, 2024, Notice of Noncompliance, in the summer of 2023, WWCD installed “approximately 150 linear feet of Ultra High Molecular Weight [plastic] sheeting on the top/upstream face of the dam (along timber portion).” ODFW determined it did, in fact, “translate to approximately 43% of the linear length Winchester Dam,” triggering the 30% rule in OAR 635-412-0005.

The Notice of Noncompliance explains, “WWCD conducted work that was not disclosed to, or otherwise provided to, the Department for review in the WWCD’s, October 18, 2022 application for temporary blockage of fish passage… specifically work that cumulatively amounted to replacement of 30% of structure volume and work to the upstream or top face of the dam that exceeded 30% of that area, respectively… WWCD is therefore already subject to an obligation to install fish passage or alternatives to fish passage pursuant to ORS 506.265 (3) (b) (A).”

In conclusion, ODFW’s Notice of Noncompliance stipulates that “Pursuant to ORS 509.625 (3) (b) (A), WWCD must install fish passage at Winchester Dam.”

ODFW specifies a December 31, 2028, deadline to complete installation of the new fish ladder in order to comply with this “proposed order.” If WWCD “takes no action,” then “the Agency will issue a Final Order by Default.”

Although the WWCD has demonstrated an ongoing pattern of spending as little as possible maintaining their private waterski lake behind the Winchester Dam, they don’t seem to have any problem paying their attorney in Portland for as many hours as necessary to oppose ODFW orders in court.

[FROM THE NOTICE OF NONCOMPLIANCE:]

VI. ODFW PROPOSED ORDER FOR WWCD FISH PASSAGE COMPLIANCE

Based upon the Findings of Fact contained herein and consistent with the Conclusions of Law set forth above, the Department proposes to issue the following order: Pursuant to ORS 509.625(3)(b)(A), WWCD must install fish passage at Winchester dam consistent with the following timeline and applicable criteria set forth in OAR 635-412-0035(1), (2), (7), and (10) to accommodate passage of the NMF and their corresponding migratory timing identified in Exhibit F (List of Native Migratory Species), except as amended by prior written authorization of ODFW:

1. January 1, 2025, to December 31, 2025 (12 months)

a. Project Engineering Design Plans Development and Completion:

i. Upstream passage requirements:

1. vertical slot (possible dual slot) fishway configuration,15

2. 6” pool to pool Water Surface Elevation (WSE) differential,

3. provide provisions to ensure adequate lamprey passage as well as all other native migratory fish,

4. screened auxiliary water system (AWS),

5. provide criteria attraction flow,

6. develop detailed construction sequencing and other plans consistent with requirements set forth below; and, as necessary to monitor effectiveness of the fish passage facility,

7. fish counting window and facility,

8. pit tag arrays at the fishway entrance(s), midpoint, and exit(s), and

ii. Downstream passage requirements:

1. modify spillway to maintain regulated WSE above the dam,

a. modeled flows and design to compliment passage at fishway,

b. screen fishway AWS designed to current NMFS guidelines,

iii. Detailed de-watering, work area isolation, and fish rescue and salvage plans;

iv. Design related to the permanent abandonment of the North Bank Fishway;

b. Interagency Coordination:

i. Frequent check-ins with ODFW: kickoff, preliminary, 30%, 60%, 90% and 100% final design intervals;

ii. Include local, county, state and federal regulatory agencies in design development and review;

c. Final Engineering Design Plans and Specifications:

i. 100% engineered stamped design plan set & specifications.

2. January 1, 2026, to June 30, 2026 (6 months)

a. Permit Submission and Acquisition:

i. ODFW Fish Passage Plan Authorization, including approval of plan for

work area isolation,

ii. Fish Rescue & Salvage Permit(s);

iii. Oregon Water Resources Department confirmation of valid water right(s) or authorization(s), as applicable;

iv. U.S. Army Corps of Engineers-Oregon Department of State Lands Joint Fill-Removal Permit;

v. NOAA Fisheries ESA Consultation;

vi. Oregon Department of Environmental Quality, Clean Water Act, Section

401 Certification;

vii. National Historic Preservation Act (Section 106) Authorization;

viii. Local and County Permit(s);

1. FEMA Floodway Permit,

ix. Any other applicable federal or state permit(s) required.

3. July 1, 2026, to December 31, 2028 (29 months)

a. Project Implementation/Construction:16

i. Appropriate agency notification in advance of project commencement,

ii. Frequent coordination, site inspections and schedule updates,

iii. In-water work shall be complete during ODFW approved in-water work periods,

iv. Isolate work site as required for anticipated high water events during multi- year construction phases,

v. Maintain temporary fish passage,

vi. Detailed fish rescue and salvage plan based on regulatory agency input and approval, including

1. adequately staffed and managed fish salvage and relocation operations, and

2. use of temporary water management and work area isolation to avoid harm to applicable species,

vii. Construct new fishway and AWS (2026 -2027 in-water work windows),

viii. Permanently abandon existing North Bank Fishway and related infrastructure (2028 in-water work window);

ix. Project completion December 31, 2028.

4.January 1, 2029, to December 31, 2039 (10 years or to be determined)

a. Post Project Installation Certification and Long-term Monitor & Reporting.

______________________________________________________________________________________________________________________

WinchesterDam.com is the only news service that covered this important story. ODFW’s September 17, 2024, Notice of Noncompliance and the associated exhibits are not available online. If you’re interested in reading the Notice of Noncompliance, use the CONTACT form on this website and we’ll send you a copy.

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