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The Oregon Water Resources Department (OWRD) is the state agency charged with dam safety and inspection. Now the owners of the Winchester Dam are suing Dwight French, the Water Right Services Division Administrator at Oregon Water Resources Department, in a desperate effort to retain the dangerous and illegal waterski lake behind the dam.
In 1976, an OWRD inspector condemned the Winchester Dam on the North Umpqua River, writing “consideration must be given to a permanent dam, the existing wooden dam being considered as temporary in nature … either reconstruction or removal of the dam would be necessary.” That was almost half a century ago.
The Winchester Water Control District (WWCD) represents about 100 homeowners who collectively own the Winchester Dam and whose homes surround the dam site. OWRD required that WWCD “inspect the dam on a semiannual basis, once a year with the water drawn down.” But OWRD failed to enforce this requirement, and the dam was only dewatered and inspected four times in the next 48 years.
In an April 18, 1994, letter from Gary Ball, Watermaster, to Al Cook, Southwest Regional Manager of the Oregon Water Resources Department (OWRD), the agency determined that Winchester Water Control District (WWCD) was illegally storing 91-acre-feet of river water in excess of their 1910 allotted water rights of 300-acre feet. According to Jim McCarthy with WaterWatch of Oregon, “this amount of water translates into approximately 1.1 feet of damn Reservoir, elevation.”
Yet in the ensuing three decades, OWRD and WWCD took no action to mitigate issue despite the added pressure it created behind the bent and bowed 450-foot-wide dam which OWRD itself rated a “high hazard” meaning they expect “loss of life” when the dam fails.
West Consultants were hired to produce a study that affirmed that WWCD was, in fact, storing 91-acre-feet of river water in excess of their legal allotment.
In a January 13, 2023, letter OWRD asked the WWCD to pursue one of two options to mitigate the illegal water storage issue in compliance with state regulations: “(1) lower the depth of the Winchester Dam impoundment by over a foot to reduce the impoundment’s volume or (2) submit an application with OWRD for the 91 acre-feet of additional storage that is not expressly recognized by the surface, water registration statement.”
WWCD’s attorney Dominic M. Carollo responded by filing an August 17, 2023, lawsuit in Marion County Court in Salem, Oregon, suing OWRD and its Water Right Services Division Administrator Dwight French. The lawsuit attempts to “overturn the straightforward application of state water law, and carve out a special rules exemption for Winchester Dam owners.”
In the lawsuit, case # 23CV33445 filed in Marion County, the WWCD cites Oregon Revised Statute (ORS) 539.010, which states, “The application of water to a beneficial use prior to February 24, 1909 creates a vested water right in the appropriator, and the quantity of water actually applied to a beneficial use.”
In other words, WWCD claims that illegal water storage was not created by the WWCD but rather they unwittingly inherited the illegally stored river water in 1969, when they took over responsibility and ownership of the Winchester Dam from Pacific Power. WWCD argues that because OWRD took no action for 30 years, it is against existing precedent for OWRD to force WWCD to comply at this time.
The real reason WWCD is suing is because they know that the antiquated, and poorly maintained fish ladder at the Winchester Dam is so out of compliance with current fish passage standards – any resolution to the illegal water storage issue will “almost certainly” require the updating or replacement of the 80-year-old fish ladder. Most egregiously, 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.
Although tens of millions of dollars were spent improving fish passage and restoring aquatic habitat upstream at the Rock Creek Dam and Soda Springs Dam, the 17-foot Winchester Dam itself remains an impassable barrier to wild migratory native fish. This is why Winchester Dam is the state’s highest priority for fish passage correction at a private dam. According to the Oregon Department of Fish and Wildlife (ODFW), the Winchester Dam blocks or impedes access to 160 miles of habitat for native fish. This is in part because the broken-down concrete fish ladder is literally worn down to the rusty rebar which injures and maims fish, and delays migration. Additionally, fish traveling downstream fall over the 17-foot lip of Winchester Dam and are often injured landing on the bedrock below.
A new fish ladder at the Winchester Dam will cost upwards of tens of millions of dollars.
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.
$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.
On September 25, 2023, WWCD filed an Amended Petition for Judicial Review It stated that OWRD’s denial of WWCDs requested amendment to their water rights (and late filing of the illegally stored 91 acre-feet of river water) constituted a “final order” that “threatens to deprive or interfere with the petitioners right to utilize the full volume of water in pounded behind Winchester dam, which has remained largely unchanged since the damage modified in 1908, and which was intended to be protected under SW398.”
In other words, because they inherited a dam with more water stored behind it than their water rights allowed, the WWCD wants a special exemption from compliance with laws that enforced at every other dam in Oregon.
WWCD’s claims that “OWRD does not have regulatory authority over claims based on either pre—1909 or federal reserve water rights theories and left such claims are adjudicated and Findings of Fact and Order of Determination is Entered.”
They’re not willing to spend the money to bring the dangerous dam or it’s dangerous fish ladder into compliance, but they’re perfectly willing to spend $400 an hour on lawyers in their effort to hold onto their private water ski lake.
On December 15, 2023, OWRD filed a motion to have the case dismissed, which Judge James C. Edmonds granted on March 26, 2024. Three weeks later, Judge Edmunds granted WWCD’s motion for extended time to file a second amendment petition for judicial review.
Like a driver arrested for their ninth DUI, the Winchester Water Control District is a repeat offender. They have a long and well-documented history of decades of chronic noncompliance and repeated violating state and federal repair permits, serial contaminating the drinking water of 37,700 downstream neighbors, record-breaking fish kills, and ongoing pollution and degradation of the North Umpqua River – still recognized as the number one steelhead stream in North America.
Ironically, ORS 553.020 clearly states that water control districts like WWCD must provide a public purpose other than recreation, such as hydroelectricity, irrigation, or flood control. Winchester Dam’s only reason for existence since 1969 is as a mile and a half private waterski lake for a few dozen boat-owning residents whose property surround the dam, at the exclusion of the public. Yet despite WWCD’s clear and ongoing violation of this law, instead of enforcing ORS 553.020, OWRD allows the WWCD to continue to illegally exist and keep its private waterski lake for 55 precedent-setting years.
