WARRENTON — The city will ask the federal government to clarify or rescind a letter that gave control of the Eighth Street Dam to the Skipanon Water Control District.
The U.S. Department of Agriculture’s Natural Resources Conservation Service wrote in February 2014 that the federal interest in the dam and two other flood-control structures on the Skipanon River was complete because the structures had reached the end of their useful lives of 50 years.
The federal government said the water district was free to operate, modify or decommission the dam as the owner.
“It was a hastily worded, inartful and misleading letter, which has caused all of this confusion,” Akin Blitz, a Portland attorney representing Warrenton, said at a City Commission meeting Tuesday night.
Ron Smith, the state conservation engineer for the Natural Resources Conservation Service in Portland, told The Daily Astorian in September that the federal government viewed the water district as “the owner because they had to obtain those land rights to be able to install those structures and to successfully operate and maintain those for the service life of the structures.
“So from our agency perspective, we look at them as an owner of those structures.”
Warrenton has sought to take control of the dam, either for flood control or as an asset to remove later for wetlands mitigation credits on a development project.
The water district wants to remove the dam as a hazard and to improve water quality and fish passage on the river. But the water district does not hold title to the dam, and an agreement with the Columbia River Estuary Study Taskforce and the city to remove the dam and construct a bridge over the river for emergency access has fallen apart, so the future of the dam is in legal limbo.
Blitz has said the water district forfeited a city easement to operate the dam when the district removed the tide gates.
Blitz had told the City Commission in September that the city is the rightful owner of the dam because of a 1938 Circuit Court ruling on the title of nearby land and the water district’s decision to remove the tide gates.
But the attorney now maintains that the dam is likely a federal asset tied to the city’s levee system. He wants the Natural Resources Conservation Service to find that a federal interest remains and that the U.S. Army Corps of Engineers and the city should control the dam as a component of the levees.
The water district has rejected the idea that the dam is part of the city’s levee system.
Blitz suggested the water district has strayed from a flood-control mandate and is more interested in protecting salmon.
“Their charter is water control,” the attorney said. “Their clear motive is fish. They aren’t in the fish business, but that’s the passion of the governing body.”
Tessa Scheller, the chairwoman of the water district’s board, has called for a work session with the city to discuss potential solutions. The district is also seeking legal counsel to respond to Blitz’s warning that the city could file a lawsuit or seize the dam.
One possibility for mediation, Blitz said, could be Portland State University’s National Policy Consensus Center.
Mayor Mark Kujala, whose family owns property near the dam, did not warm to the water district’s request for negotiations.
“I don’t know what we have to negotiate,” the mayor said.
Kujala and other commissioners instead discussed restoring the tide gates on the dam and operating the structure for flood control, warning that property owners are at risk of flooding.
The water district has concluded that the dam is obsolete and has adopted an engineering plan that found no increased risk of flooding if the dam is removed. A city technical review, however, raised doubts about whether the engineering plan accurately modeled the flood plain.
Federal and state officials have said the dam could continue to function past its 50-year useful life with improvements and maintenance, but recommended more study.
Collin Stelzig, the city engineer, told commissioners that more data collection is necessary, particularly with the tide gates installed. “They’re providing protection and they need to be modeled with those tide gates in place,” he said.