The Senate Interim Committee On Natural Resources and Wildfire met Tuesday morning in Salem. Committee chair, Senator Jeff Golden opened the “information session, an update on the Winchester Dam” saying, “It’s a bit controversial that we’re that this is on the agenda at all today.” The committee last discussed the Winchester Dam at their September 27, 2023, meeting.
Golden explained, “We have an update from state agency folks who’ve been involved in this conversation and then we’ve allotted a block of time to individuals who have been involved and who are critical of the dam. An equal period of time was offered to the Winchester Water Control District (WWCD), the owners of the dam to have their say. We have heard from the president [Ryan Beckley] of that district that he doesn’t think it’s appropriate that we’re discussing this today.”
Senator David Brock Smith is the only member of the committee who has never been elected to the state legislature. Rather he was appointed to his state senate seat by a council of county commissioners. Smith is an outspoken supporter of the Winchester Water Control District (WWCD), as is State Representative Virgile Osborne. Although Osborne is not on the committee, he nevertheless accompanied Smith to the hearing and sat close by his side during the session, as if Smith was too junior to lobby on behalf of the owners of the most dangerous and illegal private waterski lake in Oregon, without backup.
Smith interrupted Golden as he was speaking, and reading from a page of notes before him, “I appreciate the courtesy heads-up that you were going to schedule this hearing – or this informational hearing – but as I told you then, I seriously doubt any proponents of the dam will be able to be here to discuss it because of the litigation.”
Golden replied, “Well, that’s their decision, Senator. I don’t quite accept the premise after years that not a word can be said [about the Winchester Dam].”
The Winchester Water Control District has racked up an impressive laundry-list of crimes and misdemeanors including, illegal water storage, ongoing pollution of the North Umpqua River, privatization of publics lands and waterways, killing hundreds of thousands of threatened and sensitive aquatic species, repeated failure to comply with state and federal laws and regulations, and the use of poisonous and carcinogenic building materials within 50 feet of the intake to the public drinking water source for 37,700 residents.
Ivan Gall, director of the Oregon Water Resources Department OWRD told the committee, “In 2022 our agency required a structural inspection of Winchester Dam… The department approved plans for modifications on the dam in 2022 and work began in August of 2023 and then wrapped up in September of 2023. At that point our agency understood that monitoring or testing of tie rods, which are components of the dam, were still needed… We issued a preliminary final order to the WWCD requiring the owner to verify that these tieback anchors were installed correctly. The WWCD asked for an administrative hearing of that preliminary final order in April of 2024 to challenge it and a contested case has been scheduled for December 10th and 11th later this year.”
Gall addressed WWCD’s ongoing illegal storage of 91-acre feet more water than their legal allotment. “In response to a letter that we sent to them, they challenged us in Circuit Court for not approving an amendment to their surface water registration. We don’t believe the statutes allow an amendment to be made to these, so we’re preparing a motion to dismiss. That second amended petition for review is going to be due at the end of this month and we expect a hearing to be scheduled in circuit court to follow up on that case.”
Rian vanden Hooff, a water quality senior policy and legislative analyst with the Oregon Department of Environmental Quality (DEQ) told the committee about his agency’s response to the repeated violation of permits and water contamination during the August 2023 repairs at the Winchester Dam.
Hooff said, “As a result of our findings, DEQ did issue a notice of civil penalties on October 26th 2023, and subsequently assessed a $106,000 civil penalty to WWCD… and a separate civil penalty of $27,602 to project contractor TerraFirma Foundation Repair for discharging waste materials to the North Umpqua River. These penalties are the result of violations that failed to protect water quality during the dam repair activities and created significant risk of harm to the environment and to aquatic life.”
WWCD’s contractor, TerraFirma Foundation Repair is owned by WWCD president Ryan Beckley, who declined Golden’s invitation to speak at the hearing.
Hooff continued, “On June of June 28th 2024, DEQ referred both cases to the office of administrative hearings where they’ve been consolidated and a hearing date has been set for early April of 2025. I can also note that a coalition of groups including WaterWatch Oregon, The Steamboaters, Native Fish Society, Oregon Wild, and Umpqua Watersheds filed a petition for and have been granted a limited party status to this case.”
Shaun Clements, Deputy Director, Oregon Department of Fish and Wildlife told the committee, “The first update, what led to loss of lamprey prior to the work being completed [at the dam] last year, the water control district worked with the department and planning permits for a temporary block of fish passage, as well as a fish salvage permit which outlined the expectations for salvage during that period of repair. During the course of those repairs ODFW determined that approximately 550,000 juvenile lamprey perished… as a result of an inadequate salvage of lamprey protected under Oregon’s wildlife laws ORS 496-004…
“On October 6th of 2023, the state, through ODFW, filed a complaint for $27,585,000 and fishkill damages against TerraFirma, DOWL [WWCD’s engineering contractor], and Winchester Water Control District… Informal discovery occurred during the spring of 2024…. A motion to designate the case as a ‘complex case’ was filed and granted, and the state expects a judge to be assigned soon, and more scheduling to occur. The likely trial dates in 2025… Defendants in this case have not yet formally responded to the state’s complaint…
“Oregon fish passage laws require that barrier owners work with the department 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. In October of 2022, the Winchester Water Control District filed an application with the department went to work they planned in 2023.”
Clements neglected to volunteer that his own agency, ODFW, helped expediate the WWCD’s permit application, approving it 72 hours before the new 30% ‘trigger’ rule took effect. ODFW and WWCD both knew that the antiquated, and poorly maintained fish ladder at the Winchester Dam was so out of compliance with current fish passage standards – any repair plan would entail more than 30% of the dam, requiring updating or replacement of the 80-year-old fish ladder. The fish ladder is on the wrong side of the river and 400 feet from the primary summer flow, making it difficult for fish to locate, and making Winchester Dam ODFW’s highest priority for this passage at a private dam. This deadbeat dam provides no hydroelectricity, no irrigation, and no flood control.
The WWCD represents the owners of the dam – approximately 100 property owners who live around the private waterski lake. The WWCD has historically displayed an almost pathological abundance of frugality, spending as little money as possible to maintain and repair the derelict and crumbling 134-year-old dam “on the cheap,” no matter how many permit violations they incur or fish they kill.
A new fish ladder at the Winchester Dam will cost upwards of tens of millions of dollars. $10 million is more than the WWCD has spent in total on dam repairs since they acquired the derelict dam (and private waterski lake in 1969. The WWCD will do everything in its power to avoid bringing their fish-maiming fish ladder into compliance with state regulations.
ODFW Deputy Director Clements continued, “The department reviewed that work at the time and determined there was not a ‘trigger’ under the fish passage laws as proposed and issued a permit for temporary block of fish passage. Subsequent to that permit being issued, and during the work last year, the department observed work occurring that was not disclosed in the application. Our analysis of that work was subsequently detailed an engineering report submitted to Oregon Water Resources Department…
“As a result of our observations during that period and the work detailed and the engineering report, the department determined that a ‘trigger’ for fish passage had occurred during 2023 and subsequently, in September 17, this year, we issued a proposed order to the Winchester Water Control District for fish passage. The proposed order outlines actions and timelines needed to bring the fish passage up to current standards. The proposal letter also provides an opportunity for the control district to contest this proposed order and we’re waiting on their response.”
Senator Golden told Clements, “[This] speaks to the single greatest concern I’ve heard – which is fish passage and impact on the world-famous fish runs on the North Umpqua.”
Clements replied, “ODFW is charged with implementing the state’s fish passage laws [and] has adopted administrative rule to finding what constitutes the fish passage ‘trigger…’ Because when Winchester Dam was put in – a long time ago; over 100 years ago – the fish passage that’s currently there does not meet current criteria and it’s likely causing delay or injury to fish as they pass through. Because of that, and because this ‘trigger’ occurred where they conducted [repair] work that constituted major construction under the rule, we’re now requiring fish passage”
Clement said that if WWCD appeals, “There’ll be an administrative hearing.” Golden then asked if committee members had questions.”
Senator Smith read from his script while Repetitive Osborne watched him like a mother hen, “Thank you, Mr. Chair,” said Smith, “for acknowledging the world-famous fish runs on – on the North Umpqua, and the dam being there since 1890, facilitating those world-famous fish runs on the North Umpqua because – um – many of us believe that the – the dam itself keeps the – – keeps the native invasives like smallmouth bass from being able to (glancing at his notes) reach above the dam and therefore, assist in those world, famous fish runs.”
Smith is repeating a pervasive urban myth the even ODFW has stated in writing is false, that the Winchester Dam somehow keeps smallmouth bass from migrating upstream.
Reading from his notes, Smith questioned OWRD director Ivan Gall, “I’m sorry that I did not get you this question ahead of time – [it] has to do with the uh – acre feet – the 91 acre feet that you say – that that your department is saying – that is held there, and that there was a petition by the – um – water control district to – – request.. can you explain that again? Request – um um – more acre feet? How much are they allowed? Is this over and above what they’re allowed under the current permit? And – um – is – um – and you said that you don’t believe –and I assume DOJ advise – that you have the authority undercurrent statute to grant – um – the administrator change? Did I hear that correctly? I apologize.”
Senator Smith stumbled over his words as if he hadn’t read them before.
Gall responded patiently, “Oregon surface water code was adopted in 1909. So, any water uses that were occurring before that had to go through an adjudication process. Some of our basins in the state have gone through [the] process; many others have not. In the case of the North Umpqua, there it has not… The window to claim that water closed some decades ago… So right, now the situation is Winchester Dam is holding back 391-acre feet there have a registration for 300. And the 91 additional acre feet needs to be remedied. There’s a couple of ways that they can do that. They can file an application for a limited license to store water that would get them up to five years of temporary storage. And following that, they could file a permit application to get the additional 91-acre feet of storage. The water is available, they just haven’t filed the applications so there’s a very clear process for them to go through.”
“Okay,” said Smith. “So is there – – are there similar issues – – has the department looked at Lake Oswego or Mirror Pond and – – and seeing if they are storing more water than allocated?
Gall said he wasn’t “familiar with any recent bathymetric surveys of those two bodies of water.”
Senator Fred Girod then asked OWRD Director Gall, “I used to represent Sweet Home and I have to say, what happened at Green Peter [dam], somebody needs to lose their job over! That was terrible. But my question for this is – basically this is an elementary question – this is a relatively small dam. I would assume that most of that is used for agriculture? What is the use of the water behind the dam?”
“The surface water registration,” Gall replied, “the claim for the use of water is for recreational purposes. So, there’s – to my knowledge – there are no consumptive uses from that surface water registration itself. There may be additional water rights or surface water registrations that pull water with small pumps or ditches above that, from that same pool, I’m just not familiar enough with it.”
Smith continued reading from his notes, asking ODFW Deputy Director Clements about the number of fish ODFW’s permit allowed to be killed during the August 2023 repairs at Winchester Dam. Gall explained, “So, during that completion of salvage work there is some expectation there will be some incidental mortality and so the department estimated what that allowance would be and it’s 30,000 lamprey or 10% of what was actually salvaged, the lower of those two numbers.”
“And the mortality,” said Golden, “in fact, did I hear 550,000? Is that correct?
“That’s what the department estimated,” said Clements. “Yes.”
Senator Smith read from his notes, “If – if the department determined that the number – that the take allowance was 30% or 10% of the estimated number of lamprey, then how is the department determining that the – – that the – the mortality was of 550,000 lamprey? Considering they determined that essentially 10% of 30,000, that would be only 300,000 lamprey within the system. So, the department is determining that there’s 250,000 more lamprey that died in the in the – – in the event than they considered was – even existed above the dam?”
Clements patiently replied, “I should clarify: it’s 30,000 lamprey or 10% of the number salvaged. And so 10% of what the WWCD and contractors actually salvaged. And I don’t have that number off hand but it’s – it’s less than 30,000. So it’s not saying 10% of the total number of lamprey that were present. 10% of the fish that were actually salvaged by control district.”
But Senator Smith didn’t understand, “Hold it a minute, sorry, cause I’m confused. Because you have a situation where –
Senator Floyd Prozanski, a Democrat who spent 18 years as District Four’s Member of Congress in the Oregon House of Representatives, was profuse in his criticisms of the damage caused by the’ August 2023 repairs of the Winchester Dam. Although he remained silent through the entire hearing, he was losing his patience with Smith’s obviously scripted, partisan rant and rebuked him, “You’re working off a script there for somebody!”
“No I’m – No I’m not,” Smith argued unconvincingly, “These are my – my notes! And thank you so much.”
Smith was trying Senator Golden’s patience, as well. “Senator, we do have people waiting to testify, so if you could go ahead and complete your question please.”
“There was 300,000,” Smith continued, “so I’m – – I’m confused now and I’m – – forgive me Mr. Clements, the department said that there was – – that the – – the – – the mortality – the allowed – mortality of lamprey was 30,000 lamprey, and that was determined based on 10% of the number – – because this was issued before, with the permit and so–“
“There was two numbers in allowable take,” Clements told him, “One was 30,000, straight number. The second was 10% of the fish that were salvaged by Winchester Water Control District. And it was the lower of those two that they were allowed.”
Smith continued to ask Clements questions he knew he was supposed to have submitted in advance, about whether the WWCD used any manner or irrigation to assist in the fish salvage, and whether ODFW had records of non-native invasive species that are known predators of lamprey passing through their Winchester Dam fish ladder?
Gall told him, “Unfortunately that is likely to be the subject of litigation so it’s not something I can comment on.”
Senator David Brock Smith is apparently not the brightest bulb in the box.
Smith has made it perfectly clear that as long as he’s in office, the Winchester Dam will remain standing.
After decades of willful neglect, the state regulatory agencies are finally paying attention to the serious problems stemming from the existence of the uninsurable and long-ago condemned Winchester Dam. With a standing offer to remove the dam at little or no cost to the owners, one wonders if the executive committee of the WWCD is weighing their options.
