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Federal judge extends stay in case over Winchester Dam repairs

Environmental groups have sought to remove the dam in order to protect the endangered Coho salmon.

(CN) — Attorneys for Oregon WaterWatch and Winchester Water Control met with U.S. District Judge Karin Immergut on Thursday regarding a lawsuit that could either remove Oregon’s Winchester Dam or force owners to make necessary repairs to stop harming endangered Coho salmon.

WaterWatch attorneys argued for Judge Immergut to lift the stay of proceedings on the case, which was set to expire on Nov. 1 on the condition that Winchester would acquire necessary permits for dam repairs between July 22 and Sept. 12. This could have appeased the underlying lawsuit — assuming the dam no longer threatened salmon — except Winchester recently informed the court that it is unable to complete formal Endangered Species Act consultation and obtain permits until the summer of 2023.

The Winchester Dam is a defunct, historic dam on the North Umpqua River in Douglas County, Oregon. The dam was built in 1890 and provided hydropower until the area’s 1964 flood but has since been used for recreational purposes: creating flatwater areas for private landowners to use their boats. As such, the dam not only endangers fish by raising the temperature of the river, but the dam has largely been out of compliance with maintenance standards for both the structure and its fish ladder.

“It's also one of the few high hazard dams in the state that is listed as being poor and unsatisfactory conditions,” said WaterWatch Program Director Jim McCarthy. “The state has been asking them to do inspection and repair since 2019. They've been dragging their feet on that. So, all across the board, we're seeing kind of unwillingness to follow regulation and unwillingness to take responsibility for their impacts, the resource and just really unwilling to do anything. It's really unfortunate that they need to be drawn into compliance kicking and screaming.”

“Continuing to stay the litigation through November 1, 2022, when the stay expires, will not serve its intended purpose,” states the motion. “It will not allow WWCD to complete its repairs. It is now evident that the continuing harm to Plaintiffs and the Coho they seek to protect now vastly outweighs any harm to WWCD from proceeding with the litigation. Continuing the stay will undermine, rather than advance, the orderly course of justice in this case.”

“It’s my inclination that it would be extremely helpful to have the agency responsible for enforcement of the Endangered Species Act to make a determination of the current circumstances and determine whether or not defendants might even be immune in this case,” said Judge Immergut in her opening remarks, adding how such findings are not only more economical than litigation but provide more time for Winchester to obtain a biological opinion on whether its proposed repairs would be helpful for salmon.

However, WaterWatch attorney Molly Tack-Hooper of Earthjustice argued that any proposed consultation of Winchester’s repairs would not be fully evaluative because their proposed permits do not include necessary repairs to the fish ladder — a structure McCarthy describes as from the 80s.

“The take of even one fish is sufficient for us to make our Section Nine claims,” said Tack-Hooper. “Oregon coast Coho are still a threatened species in part because of the harm that dams have done to the population.”

Whether or not Winchester can obtain a biological opinion by May that considers its current and future impact to the environment is unknown, although Winchester attorney Dominic Carollo said in his arguments that any opinion rendered would be thorough and made public.

“It is going to be because we’re addressing it as part of the baseline in the biological steps to get submitted to them,” said Carollo, arguing the reason Winchester has not received a permit is because of the concern for extending the life of the dam. “I think it would be foolish for us at the district to not expect them to be dealing with more than just jackhammers and concrete rebar.”

“Our preference is for the dam to be removed,” said McCarthy. “That’s what science and common sense tells us. It’s the best thing for the river and for everyone involved because the cost to maintain the 130 year-old dam so that it no longer harms fish and water quality, for most people except a utility company that’s actually generating hydro power, would be prohibitive.”

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