by Bill Poehler, Statesman Journal | December 2019 | The Statesman Journal
Joel Rue welcomed a group of fellow farmers and friends into his home in Victor Point, located in a canyon between Silverton and Silver Falls State Park, in 2005.
Over the next few hours, the farmers from around Mt. Angel explained how for decades they sought ways to ensure sufficient water for their crops as their farms were under constant threat of curtailment in times of low water, such as droughts.
They laid out their plan to build a 70-foot dam and 384-acre reservoir on Drift Creek – the only main tributary of the Pudding River without one. There was one big hitch: they needed some of his farmland and his neighbors’.
After 14 years of battling in venues from state agencies to courts and millions of dollars in public and private money spent on both sides, the proposed dam has finally been defeated by a decision from the Oregon Water Resources Commission.
“Some people say that we won this one, and I personally don’t think that we’re winners,” Rue said.
The major sticking point with the plan was whether the proposal of the East Valley Water District – a quasi-legislative body made up of farmers in a wide swath around Mt. Angel – complied with Oregon rules that such a project not be detrimental to fish species, specifically cutthroat trout.
East Valley Water District board chair Dave Bielenberg said over the past decade the district followed every step it was directed to by the Oregon Water Resources Department to obtain the water rights and build the dam.
Until the commission’s ruling, every major opinion and decision seemed to go in favor of East Valley, and building the dam seemed imminent.
“We’ve done everything that the law requires of us and the department asked,” said Bielenberg, who owns 1,200 acres of land around Mt. Angel where he grows grass seed, vegetables and specialty seed crops.
The East Valley Water District has 60 days from the Water Resources Commission’s decision to appeal it to the Oregon Court of Appeals, according to Water Resources Department spokesperson Racquel Rancier.
“The board has not met since the ruling, so we don’t know what we’re going to do,” Bielenberg said.
Eyeing Drift Creek for decades
Water rights are a commodity in Oregon.
With them, the holders have the ability to transform wide swaths of land into highly-productive farms, growing everything from nursery plants like arbor vitae, commodity crops like corn and blueberries, and newly sought-after items like hazelnuts and hemp.
There are tens of thousands of acres of prime Willamette Valley farmland around Mt. Angel and many farmers in the area own water rights, but those rights are subject to curtailment in times of low water.
Multiple times – including once in the 1950s and in 1993 – farmers in the area considered building a dam along Drift Creek south of Silverton for a reservoir where they could store and regulate the water for their farms in times of low water.
But it wasn’t until 2000 that a group of farmers organized themselves into the East Valley Water District.
The geographic boundary of the district covers areas of Marion and Clackamas counties from north of Silverton to south of Woodburn and Molalla, bordered by the Pudding River and the Cascade Mountain foothills.
There are 35,000 acres of tillable land within the boundaries of the district and about half are already being irrigated with existing water rights.
Building new dams in Oregon is difficult, and there are many considerations along the way.
The district considered more than 75 different sites before deciding on Victor Point due to water availability, geology of the area and cost.
But they kept coming back to Drift Creek, which originates near Silver Falls State Park and meanders 11 miles through rolling hills into the Pudding River, and building a dam just north of Victor Point seemed their best option.
In 2013, the East Valley Water District formally applied to the Oregon Water Resources Department for the right to store water at Drift Creek. The department issued a proposed final order in 2014, recommending approving the dam, but neighbors whose land would be affected and WaterWatch filed protests almost immediately.
In 2016, the Oregon Water Resources Department referred the case to the Office of Administrative Hearings and in 2018, it held a two-week hearing on the matter.
Judge Denise McGorrin issued in February 2019 a proposed order recommending approval with modifications, and OWRD director Tom Byler issued a proposed order to approve the proposal in September.
The dam would be near the intersection of Victor Point and Fox roads and was proposed to be 70 feet above the ground, the area submerged was to be 384 acres, it would be able to store 12,000 acre feet of water and cost about $84 million.
Most of the canyon where the dam would have been created is filled with trees and fields filled with tall grass in the summer.
By all appearances, the dam and reservoir seemed inevitable.
“This thing’s been going on so long that a lot of people who were involved from the start aren’t around anymore,” Bielenberg said.
Generations farm the land
When Joel Rue’s grandfather moved to Oregon from Minnesota in the early 1900s, he settled on a hilly plot of land south of Silverton in an unincorporated Marion County community known as Victor Point.
Since then, generations of the family have lived and farmed there.
The 900 acres Rue owns and the 2,200 acres he and his sons farm in the area have no water rights, not even from Drift Creek, so they’ve learned to farm with only the water that falls from the sky and to produce crops such as grass seed and Douglas firs.
“We don’t irrigate,” Rue said. “We don’t have the luxury.”
The East Valley Water District’s plan would have required the district to obtain nearly 400 acres currently owned by Rue and about a half dozen of his neighbors.
The Victor Point neighbors were unwilling to sell their land to the district and unsuccessfully went to court to keep the district’s surveyors off it.
But the water district could have taken the land through the eminent domain process, even though the land was outside their district, in accordance with state statutes.
The Victor Point farmers even went to the state legislature in 2015, trying to get a bill through that would have kept any water district from using eminent domain outside of its boundaries, but never received a hearing.
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The East Valley Water District’s plan would have taken land from farmers in the Victor Point area to benefit farmers against whom they compete to sell their crops.
East Valley didn’t own land until 2016 when it acquired property near Drift Creek.
Since the East Valley Water District filed for its permit in 2013, Rue, fellow farmers and WaterWatch of Oregon have been fighting what seemed like an unwinnable battle.
“It’s strained our relationships with some good people,” Rue said.
Arguments and final decision
Opponents of the plan have thrown every argument they could think of to stop the plan over the past five years.
Among their reason: the district didn’t seek available water from existing reservoirs in the Willamette Basin; an archeological survey revealed stone tools and projectile points which indicate historical significance; it is habitat for native elk; dams must be adaptable to power generation consistent with safe fish passage and species such as Winter Steelhead, Pacific Lamprey, Spring Chinook and Coho Salmon have been observed in Drift Creek.
And the dam was proposed at a time the state spends $10 million each year to remove fish passage barriers from streams.
“We’ve presented a lot of these issues for years, and they just fell on deaf ears, I guess,” Rue said.
It wasn’t until a subcommittee of the Oregon Water Resources Commission issued an opinion that the proposed dam would be detrimental to the public interest, citing the existing water right the state owns for the benefit of the native coastal cutthroat trout native to the creek, that the opponents finally got a win.
The only current water rights on Drift Creek are for fish ponds and cutthroat trout migration.
The Oregon Water Resources Commission voted after a two-day hearing on Nov. 22 to deny the East Valley Water District’s application.
“It took some guts for them to say no to this,” said Brian Posewitz, an attorney for WaterWatch of Oregon.
But to get to this decision came at a cost to everyone.
The East Valley Water District spent over $1 million in public dollars from multiple sources in state government on studies.
As of 2018, district members had contributed about $1.1 million in fees toward the project, according to filings with the state.
“It’s not something that we dreamed up on our own,” Bielenberg said. “We did what we were asked to do and thought we had an agreement. We have done everything that was required.
“That’s what you get when you deal with government.”
Rue didn’t specify how much he and the opponents spent on the defense, but said he and his sons could have bought a farm for what they spent.
“I think the real losers in this is the state of Oregon and the taxpayers,” Joel Rue said.
bpoehler@StatesmanJournal.com or Twitter.com/bpoehler