Alanna Madden

ROSEBURG, Ore. (CN) — The legal battle over Oregon's controversial Winchester Dam is scheduled to heat up in May 2023, when an extended stay ends in the battle between WaterWatch of Oregon and Winchester Water District. The water district says it's ready for the fight.

"People that are suing us do this for a living," said Winchester Water District President Ryan Beckley. "And the facts and data don't seem to actually be too interesting to them, or they certainly aren't willing to engage with them."

But WaterWatch says the people running the dam have no regard for endangered fish.

"The folks that are running the dam for the district really don't seem to have much interest in obeying the law," said WaterWatch's Southern Oregon Program Director Jim McCarthy, who is leading the charge against Winchester for killing endangered Coho salmon and other migratory fish.

Unlike many dams, the Winchester Dam no longer exists to produce energy — and hasn't since the 1960s. Instead, the dam's sole purpose is to create a private flatwater reservoir for the 156 homeowners behind the dam, aka the Winchester Water District. According to McCarthy, it may be the only 1890s claim for recreational water in Oregon's history.

According to WaterWatch's lawsuit, the Winchester Dam causes illegal take of Coho salmon by blocking access to spawning habitat and falsely attracting fish to areas of the dam with leaks.

"I spent an estimated 260 hours out there observing what was going on at different seasons and different times of the year," said retired biologist Jeff Dose. "And I observed numerous adult salmon and steelhead jumping at the dam."

Critics of the Winchester Dam cite the structure's frequent holes and leaks, which cause false attraction for endangered Coho salmon. (Alanna Madden/Courthouse News)
Critics of the Winchester Dam cite the structure's frequent holes and leaks, which cause false attraction for endangered Coho salmon. (Alanna Madden/Courthouse News)

According to McCarthy, owners of the 132-year-old dam have been out of compliance with maintenance permits since the early 90s and have resorted to environmentally detrimental repairs. In 2018, former district president Juan Yraguen responded to an emergency repair request from the Oregon Water Resource's Dam Safety Division by hiring his company, Basco Logging Inc., to fill a hole with cement.

"He used green cement, which is concrete specially formulated to solidify when it hits water," McCarthy said. As a result, Oregon Department of Fish and Wildlife reported the incident to the Department of Environmental Quality, which fined Basco Logging $58,378 for "violating state water quality standards and causing pollution, killing fish and other aquatic species."

"That really galvanized people too," McCarthy, said, noting the dam owners not only failed to obtain permits and hire qualified engineers, “they fought it, and they were quite adamant that they shouldn't be held accountable for that."

Additionally, McCarthy said part of the dam's original wooden cradle structure was repaired with pressure-treated wood, which is toxic to fish. "They never bothered with permits, so they have never had to be told by the state that their plans were unlawful for putting pressure-treated wood," McCarthy said.

Beckley doesn't see it that way. “Those maintenance projects typically fall under, essentially, just a notification permit, which isn't really a permit at all,” he said. “We just notify Corps of Engineers and Dam Safety and say, hey, we're going to do XYZ."

Beckley also has his doubts about dam repairs killing fish, adding how there was no autopsy done on the fish to suggest they were killed from the turbidity of poured concrete.

But despite the state's listing of the dam as "high hazard" because of its fish ladder, Beckley is adamant the fish counts by the Oregon Department of Fish and Wildlife have been inaccurate for the last 12 years.

A small fish roams around the east window of the Winchester Dam fish ladder. (Alanna Madden/Courthouse News)
A small fish roams around the east window of the Winchester Dam fish ladder. (Alanna Madden/Courthouse News)

"[Fish and Wildlife] decided to stop counting the individual fish and they went to an extrapolation count," Beckley said, adding that selecting eight random days of a season doesn't account for how Coho salmon run sporadically in big groups. To prove his point, he plans to purchase and install a "24/7 live-feed digitized counting system." He said Fish and Wildlife is not thrilled about the plan.

"They have been fighting me like hell," said Beckley. "And I can't get them to tell me why, except that they don't actually want to see the information."

Beckley said WaterWatch has not been as communicative as they've let on, either. WaterWatch offered to remove Winchester Dam at "little to no cost" to the district. The offer, McCarthy said, was rejected.

But, Beckley said, "They have never responded to me once."

The only feasible solution, according to Beckley, is fixing the ladder to meet the National Marine Fisheries standard, which includes a six-inch maximum jump height. However, he also said the solution is unnecessary and may cause further harm to salmon by letting predatory smallmouth bass into the reservoir.

Moving the dam's fish ladder is also off the table, Beckley said, since the south end is too close to the water intake for the city of Roseburg.

Still, Dose believes the district needs to do more to protect young migratory salmon. "Modern dams today have collection facilities and transportation facilities to get juvenile fish safely over the dam," he said. "This has none of that."

Dose said he's observed hundreds of juvenile fish fall off the ledge of the dam onto exposed bedrock below. And McCarthy noted modern dams have plunge pools so fish that go over the top don't fall onto rock at the bottom — something Winchester does not. "Pretty much anytime I go down there, I see adult fish falling off the crest of that dam and onto that rock ledge," he said. "So, the sound of cascading water there is a sound of fish death."

This observation also led Dose to discover how juvenile salmon are being picked off by predatory bird species as they swim up to the dam ledge. However, Beckley insisted "juvenile salmon going over the dam has never been established to be a legitimate concern."

"Ultimately, at the end of the day, their only goal, their only real objective would be to bully us into removing the dam," Beckley said.

On that, the sides agree.

"It's our philosophy that every dam has an expiration date," McCarthy said. "This one is well past its expiration date."