Commissioners' hands tied in notching of dam

Jackson County legal representatives advise against legal action to block Elk Creek Dam notching.

A pair of frustrated Jackson County commissioners discovered this week they have limited legal options to block the controversial notching of Elk Creek Dam, despite their concerns about flooding downstream.

The U.S. Army Corps of Engineers, which says the flood concern from notching the dam is entirely unfounded, is expected to begin creating a pathway for fish at the dam in the next few months.

"Obviously, New Orleans isn't very fresh in their memory," said Commissioner C.W. Smith.

He said the Corps and the Federal Emergency Management Agency should both look at the potential for flooding from the project, a contention refuted by the Corps.

The county explored filing an injunction to block the notching plans, but an independent analysis conducted by Perkins Coie LLC of Seattle advised the county not to take this step. The county and the Medford Water Commission shared the $8,000 cost for initial legal review. The county hasn't received a bill yet for an additional analysis of the possibility of filing a legal claim against the Corps, released this week. The county will pay an amount for it not to exceed $3,000.

Perkins Coie concluded that even though county officials might have concerns about the impacts of flooding from notching, there is little evidence to support that conclusion.

Both Smith and Commissioner Jack Walker oppose the notching plan, but Commissioner Dave Gilmour supports it.

Smith said the county also has little legal authority to take on the Corps on federal issues.

With the legal avenues closed, Smith said he will prod state officials to support completion of the dam to help deal with the potential lack of water from global warming, though climate predictions for Southern Oregon show an increase in global temperatures could actually increase precipitation here.

Corps officials expect to award a contract within the next two weeks for designing and notching the dam's base and restoring the creek bed at the site since lawsuits halted construction in 1987.

In January, the Corps released its final environmental study, which concludes that notching the dam is the best and least expensive solution for wild salmon and steelhead. Under a 15-year-old program the Corps has trapped fish at the dam's base and hauled them upstream to spawning grounds.

Corps spokesman Scott Clemans refuted the claims about the impact to the dam from the notching.

"The dam in its current configuration provides no flood control capabilities whatsoever," he said.

He said the notching design doesn't preclude at some later date making the dam bigger. Construction on the dam originally started in 1971 but only attained one-third of its planned height at 83 feet when construction stopped.

If the political and environmental mood shifts, Clemans said completion of the dam is still a possibility.

"Notching the dam does not preclude completing it in the future," he said.

Commissioner Gilmour said he's glad the county decided to explore the costs of legal action before they filed a suit that could have cost hundreds of thousands of dollars.

"There is so much pressure for the commissioners to jump into the fray for something that couldn't be blocked," he said. "The report showed clearly that if we proceed with any injunction that it was going to cost the taxpayers a lot of money."

Gilmour said the Corps assessment shows the notching will not have any impact on downstream flooding.

"I see no reason not to notch it," he said.

Walker said the county has explored the political and legal sides of this issue, but he still thinks more needs to be done to study the effect on local flooding from notching the dam, which sits on a tributary of the Rogue River.

He said Jackson County will continue to grow and so will its water needs. In addition, with more growth, the potential for flooding could cause federal agencies headaches in the future.

"They are ripe for a huge lawsuit especially if there is human life involved," he said.

Reach reporter Damian Mann at 776-4476 or dmann@mailtribune.com.