'The Notch': Elk Creek Dam is poised to get a fish passage corridor

The Army Corps of Engineers plan to implement fish passage on the politically controversial Elk Creek Dam, in the Upper Rogue River basin.

Visitors from the Portland office of the Army Corp of Engineers are dwarfed by Elk Creek Dam. They are standing by the tunnel where the creek goes through the dam. Jim Craven 10/10/2007

For more than two decades, half-built Elk Creek Dam has sat in mothballs atop the upper Rogue River basin, largely unchanged from the moment environmental challenges halted concrete crews in 1986.

Despite U.S. Army Corps of Engineers plans to cut away a chunk of the dam so threatened coho salmon can swim unimpeded in Elk Creek, the project has remained in limbo for a decade as Rep. Bob Smith, and later Rep. Greg Walden, used language in budget bills to keep the concrete intact.

But simultaneous shifts in Washington's legal and political climate have untied the hands of the once-stymied Corps. The agency now is poised to do what it for years has called the best and cheapest way to solve fish-passage problems there.

It's known in the Rogue Valley simply as "The Notch." And Walden, a staunch notch opponent who prefers keeping the dam intact and trucking salmon around it, said he can only stand by and watch.

The tied hands are now on Walden, he said, thanks to a midterm election and a San Francisco court and the shadow of the federal Endangered Species Act.

So the dam, Walden said, is as good as dead.

"They've already made their decision to notch it, and they're not going back," Walden said in an interview.

"It's sort of 'Game Over,' as far as I can tell," he said. "It looks like the Corps will get its way."

The Corps is poised to get $11 million in its pending 2008 fiscal budget to cut the center of the dam out and restore about a mile of Elk Creek's original channel bulldozed long ago.

The agency has dusted off and updated its 1998 environmental study supporting the notch, and plans are to get a contract out for bid later this month.

Cutting and blasting would be done in time for next fall's wild coho run to do what they haven't done in Elk Creek since the Reagan years — swim into upper Elk Creek spawning grounds on their own.

"We need to address the long-term passage problem and do it in a cost-effective way," said George Miller, the Corps' Elk Creek project manager.

"Our position has not changed," Miller said. "The political climate has changed. That's technically our driver."

And Walden believes that will pile-drive any future opportunities to impound water on one of the upper Rogue River Basin's main tributaries.

"The Rogue Basin in the future will need water storage, but the Corps has been relentless in going in a different direction," Walden said. "Once the center of that dam is gone, it never will be completed."

One of the ironies looming over this project is that of the three Rogue Basin dams authorized by Congress in 1962, Elk Creek was the one that caused little, if any, heartburn among state and federal agencies, as well as the public.

Various forces slugged it out over the placement of Lost Creek dam on the main-stem Rogue and Applegate Dam on the Applegate River.

At the time, Elk Creek had broad public support for flood control and augmenting low summer flows to aid Rogue salmon and steelhead runs.

But that all changed by the time construction began in 1986, just as research began to show that sun-warmed reservoir flows were hampering survival of spring chinook salmon eggs in the main-stem Rogue.

Conservation groups successfully sued the Corps, forcing construction to halt while the agency studied the cumulative effects of its three dams on the Rogue. The agency returned in 1989 with plans to finish the dam but have a hole in the base to allow salmon to swim through.

In 1992, the agency began contracting with the Oregon Department of Fish and Wildlife to trap and haul migrating adult salmon and steelhead past the structure while it tried to hash out what to do with the facility.

In 1995, the Corps notified Congress that it planned to keep the project uncompleted and pushed to notch the dam to comply with Endangered Species Act requirements that the dam not jeopardize threatened coho.

Smith, the long-time Republican representing Oregon's Second Congressional District that includes Medford, blocked that move in early 1998 just as he was about to retire from Congress and as the Corps began seeking funding for the permanent trap-and-haul facility.

To the Corps' budget bill, Smith added wording that banned the Corps from spending money on notching. This addition, called "report language," is a common way for members of Congress to explicitly tell agencies their intent.

Considering the report language as marching orders, the Corps complied. Walden succeeded Smith and began issuing similar no-notch language to Corps budgets since then.

But the San Francisco-based Ninth Circuit Court of Appeals in September 2006 changed the future of this practice. In a case involving Idaho Sen. Larry Craig's report language involving the Bonneville Power Association's Fish Passage Center, the court ruled that report language did not carry the weight of law, leaving the agencies to decide whether to follow their direction.

That meant the Corps could decide whether to follow Walden's report language on the notch.

"So whether you're for or against Elk Creek, it doesn't matter," Walden said. "Everything was undone by that order. The tool we always used is gone. The agency really is free to do anything they want."

Last fall, Miller said, the Corps approached Walden and informed him that the agency planned on moving forward with its notching plans before a permit to trap and haul threatened coho expires next September.

Corps studies conclude notching is the least expensive and best long-term choice for passing fish at the dam, even if one day the notch is patched and the dam completed.

"Our agency has tried to resolve the fish-passage problems," Miller said. "We can't continue to operate the way we are and stay in compliance with the ESA."

The Corps sought the notching money in the 2008 budget because "we weren't expressly prohibited this year" by the old report language, Miller said.

Walden didn't bother adding the language to the appropriations bill.

"It would have been meaningless," Walden said.

If Republicans held a majority in Congress, Walden could have pushed to have the no-notch approach returned to the bills, he said. But Republicans lost control of Congress this year.

"No one will have the willpower or horsepower to put it back," Walden said.

The notching plan for 2008 is expected to be done by next fall largely mirrors the one set out in 1998 environmental studies, Miller said. However, the agency plans to add some elements that help preserve what's left of Elk Creek Dam and curb erosion during high-water events there, Miller said.

The goal is to safeguard the $113.9 million spent to date there while the Corps manages the lands until a time when water-storage needs and environmental concerns point to completing the dam, Miller said.

"We're not abandoning the investment we've made," Miller said. "That $113.9 million is substantial."

And time, Walden said, is not on the side of notch opponents.

"We're out of airspeed and ideas now" Walden said. "The Corps wins."

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Elk Creek Dam was originally authorized as part of the Rogue Basin's trio of dams meant to control winter floods and release stored water in the summer to enhance Rogue fish habitat.

Elk Creek Dam's original design called for it to hold a reservoir roughly the size of Applegate Lake, and cut off all fish migration at the dam.

The Corps came back in 1989 with a plan to finish the dam but not to create a summer lake. The dam instead would have a hole in its base so Elk Creek could flow through it and fish could swim past it under most water conditions, but it could be used to curb flooding during high-water events.

As of Sept. 30, the Corps has spent $113.9 million on the project.

Reach reporter Mark Freeman at 776-4470, or e-mail mfreeman@mailtribune.com.