By Bill Poehler | Nov. 17, 2023 | Salem Statesman Journal
The Oregon Water Resources Commission and the Court of Appeals have prohibited the dam, saying it might harm cutthroat trout that spawn in the creek.
Oregon’s Court of Appeals this month upheld a previous ruling prohibiting construction of a new dam south of Silverton on Drift Creek, saying the proposed dam might harm the cutthroat trout native to the stream.
The East Valley Water District, whose board is composed of farmers near Mt. Angel who want the dam, say it will ask the Oregon Supreme Court to review the ruling.
Environmental groups including WaterWatch of Oregon and farmers around Drift Creek have been fighting the dam proposal for a decade.
“We respect its right to use the legal system but regret that it continues to pursue such a destructive proposal,” said Brian Posewitz, an attorney for WaterWatch of Oregon. “We hope the Supreme Court sees that the Court of Appeals made the right decision.”
East Valley Water District board decided to appeal because they believe the Court of Appeals ruling is inconsistent with prior decisions allowing the dam to proceed by the Oregon Water Resources Department staff, its department director and an administrative law judge.
“I do think that this is an incredibly important issue, not only to the district, but we do believe that the ruling has ramifications beyond just our project,” said Lauren Reese, executive director of the East Valley Water District.
“And so while the project is incredibly important to these family farmers, we do believe it’s important to get this right,” Reese said.
Farmers’ Need for Water
Versions of what became the East Valley Water District in and around Mt. Angel have existed for about 50 years as farmers have sought to ensure they have enough water.
The district, which was formed in 2002, has about 75 members and includes about 36,000 acres of farm land between Silverton, Woodburn and Molalla. Most of the land where the farmers grow crops like hops, grass seed, cauliflower, onions, hazelnuts, berries and nursey plants such as azaleas is in a groundwater-limited area, which means the farmers can’t pump it out of a well.
And as the weather gets warmer — the average temperature has increased by 2.2 degrees the past century, according to the Oregon Department of Energy — water and the snowpack in the Cascade mountain range that helps store water until the summer months has gotten more scarce.
“With less snow in the mountains, essentially a lot of farmers have lost a reservoir,” Reese said.
The district looked at new sources of water for irrigation and eventually settled on the proposed Drift Creek dam site near Victor Point School on Fox Road and Victor Point Road.
Drift Creek starts near Silver Falls State Park and rolls for 11 miles into the Pudding River.
The water district proposed a 70 foot high dam to annually store about 12,000 acre feet of water between Oct. 1 and April 30 on nearly 400 acres of farmland owned and farmed by other farmers.
The last estimated cost of the dam was $84 million in 2019. Reese said the district doesn’t know how they would pay for it, but it would be a mix of district, state and federal funds.
Applying to Build Drift Creek Dam
In 2013, the water district applied to the Oregon Water Resources Department for a water right on Drift Creek.
OWR’s approval the next year was appealed by the farmers who live near the proposed dam and WaterWatch.
Staff at the Oregon Water Resources department in 2019 recommended approving the district’s application for the water right.
But the Water Resources Commission denied the water district’s application for water rights that year, saying the existing instream water right the state holds would be damaged if the dam was built.
Oregon’s Department of Fish and Wildlife holds a water right that guarantees a flow of water for cutthroat trout that spawn in the stream. Any new approved water right can’t hurt the existing water right. The commission determined “there are no modifications that will allow the proposed use to comport with the public interest to allow for approval.”
“Victor Point area farmers and residents oppose the proposed dam along Drift Creek that would flood nearly 400 acres of the valley near Victor Point and Fox roads.”
The water district appealed that decision to the Court of Appeals, arguing as long as minimum flow is present to allow cutthroat route to migrate up the stream, the dam would not conflict with the existing water right.
“So we were saying like, look, even though you have the instream water right at the mouth, that the water right should protect cutthroat trout’s use of the stream throughout the entire length of the stream which is designated in the in-stream water right,” said Posewitz with WaterWatch.
Even if the Supreme Court decides to hear the case on appeal and overturns it, other approvals will be needed, including from the state’s dam safety office, and the U.S. Army Corps of Engineers. And the water district would need to purchase the rest of the land it wants to flood. The district already has purchased 104 of the needed acres.
Reese said the water district board also is looking at other alternatives because the need for water isn’t going away.
“While we’re still trying to keep this permit alive, we’re absolutely evaluating alternatives and trying to find the best way to do this,” Reese said. “The need is so there. We need to find a reliable and sustainable water supply for this region and we need to find one that balances all of these needs.”
This article originally appeared in the Nov. 17, 2023, issue of the Salem Statesman Journal.
