$27.6 Million Lawsuit Filed for Lamprey Loss During Winchester Dam Repairs

By Gloria Coleman | Oct. 7, 2023 | Roseburg News-Review

The Winchester Water Control District and associated contractors are facing a more than $27.5 million claim, which was filed Friday in Douglas County Circuit Court, for their role in the loss of juvenile Pacific lamprey during recent repairs of the Winchester Dam.

“The number of lamprey killed as a result of an inadequate fish salvage effort was significant and preventable,” said a joint press release from the Oregon Department of Fish and Wildlife and Oregon Department of Environmental Quality. “The North Umpqua River’s diverse fish populations are unique within Oregon and are of considerable social, cultural and economic important locally and regionally. The damages claim seeks reparation for the loss of a valuable public resource.”

The 133-year-old Winchester Dam underwent repairs in August, during which time the dam’s structural integrity was also tested as required by the Oregon Water Resources Department. To complete the work the area behind the dam needed to be temporarily dewatered, subsequently closing the fish ladder.

These repairs were permitted by the state, despite concerns about fish and aquatic species, during Aug. 7—28, with a number of terms and conditions. Two extensions were later granted to the water control district, with the caveat that the affected area and fish ladder be rewatered by 5 p.m. on Sept. 6.

In addition to the Oregon Department of Fish and Wildlife, there were three other agencies involved throughout the permitting process: Oregon Department of Environmental Quality, National Marine Fisheries Service and U.S. Army Corps of Engineers.

The $27,585,000 claim was filed by the Oregon Department of Fish and Wildlife and the State Fish and Wildlife Commission and is one of the largest claims for the illegal killing of wildlife that has been filed in the state. The defendants listed are Winchester Water Control District, TerraFirma Foundation Repair and DOWL, LLC.

“This is the only planet we have, and if we don’t take care of it, we won’t leave anything for our grandkids,” Chauncey Peltier said during a scheduled protest against the Winchester Dam on Saturday. “There are just so many issues with that dam.”

According to court records, the defendants had not been served as of Friday. Sander Marcus Hull is listed as the attorney for the state. Ryan Beckley, president of the Winchester Water Control District and owner of TerraFirma Foundation Repair, said Saturday that he would need to confer with legal counsel before issuing a statement.

Fish and wildlife officials determined that based on historic run timing data, the Aug. 7—28 dates would have the smallest impact on adult summer steelhead and coho salmon, which use the fish ladder during migration.

According to court records, TerraFirma was contracted to make dam repairs while DOWL was contracted to manage fish rescue and salvage options.

Pacific lamprey are designated as a Sensitive Species and of cultural significance to tribes. According to the fish salvage authorization, dam owners were responsible for salvaging Pacific lamprey, and other fish, “getting them back into the river as soon as possible to minimize mortality.”

According to court records that equated to 30,000 lamprey mortalities during the construction period, however, an estimated 550,000 Pacific lamprey died during the project.

“TerraFirma began the drawdown at or around midnight on Aug. 7, 2023. By 8:34 a.m., ODFW employees observed approximately 10 people involved in fish salvage,” a court document stated. “Fish were stranded in the exposed sediment and by 8:55 a.m., there were already stranded and dead fish below the fish ladder. ODFW employees advised the Defendants about concerns over inadequate salvage efforts by 11:57 a.m.”

Court records indicate more people were salvaging the following day, but there were still large portions that were not being salvaged. An e-mail was allegedly sent to the defendants, demanding an immediate response — at the time there were thousands of dead fish observable throughout the area, according to the court documents.

A crew of 50-60 people from state, federal and tribal agencies began salvage efforts Aug. 9, according to the Oregon Department of Fish and Wildlife. The crew worked for two days.

The lawsuit claims the value of the fish was $27.5 million and the cost associated with salvage, oversight and monitoring totaled $85,000.

Oregon Department of Fish and Wildlife was on site during the construction to provide guidance on best management practices for salvage and fish passage. The repairs at the dam did not trigger modern fish passage rules.

“We were asked by the people who cared if we’d go up and take those lamprey out,” MA Hansen said Saturday morning at the protest. “That was the last time this whole ridiculousness happened. Nobody even knows how to repair the dam.”

The Oregon Department of Environmental Quality issued a pre-enforcement notice to the water control district for its water quality violations.

“The work performed during the Winchester Dam Repair project discharged untreated and contaminated water into the North Umpqua River,” the letter stated. “These discharged can pollute waters by introducing contaminants and increasing turbidity; and be detrimental to the survival of aquatic species and habitat.”

According to the letter sent to the water control district there were 10 violations:

  1. Causing pollution of any water of the state or placing or causing to be placed any wastes in a location where such wastes are likely to escape or be carries into the waters of the state by any means.
  2. Performing work that is not consistent with the project description contained in the permit application materials.
  3. Improper implementation of erosion control measures to prevent or control movement of soil into waters of the state.
  4. Placement of biologically harmful materials and construction debris where they could enter waters of the state.
  5. Operating equipment in areas that disturb habitat directly or result in potential discharges.
  6. Failing to report discharges of deleterious materials to the Oregon Emergency Response System.
  7. Failing to perform in-water work only within the ODFW preferred time window.
  8. Failing to maintain unobstructed fish passed from Aug. 28—Sept. 1.
  9. Failing to isolate in-water work areas from active stream.
  10. Failing to implement best management practices to minimize turbidity during in-water work.

“The violation(s) cited above caused significant environmental harm or posed risk of significant environmental harm and the matter is being referred to the Department’s Office of Compliance and Enforcement for formal enforcement action,” the letter stated, adding that this may result in civil penalties and/or a department order.

The compliance and enforcement office is reviewing details of the violations and will issue a final enforcement order in the coming weeks, according to a press release.

Winchester Water Control District can submit a response to the claims, which will be considered.

“This is the best fishing in the most beautiful river in the world. We are losing so much every year in tourism in the river,” MA Hansen said at the protest.

This article originally appeared in the Oct. 7, 2023, edition of the Roseburg News-Review.