Water flows down Drift Creek by Victor Point Road Nov.15 near Silverton. (Jaime Valdez/Woodburn Independent)

A decade-long fight over the water rights to streamwater in Marion County may finally be coming to a head.

The dispute between the East Valley Water District and the environmental group WaterWatch over water law involving a proposed dam on Drift Creek has now reached the Oregon Supreme Court.

What’s this dam dispute about?

Drift Creek is an 11-mile stream that runs from Silver Falls State Park through Silverton to the Pudding River. Drift Creek is also the only Pudding River tributary not already dammed.

The proposed Drift Creek dam would be built near Victor Point Elementary School, located in a valley between Silverton and Sublimity. The dam would be 70 feet tall and, if built, create a reservoir over farmlands in Victor Point to store the water supply.

The East Valley Water District obtained a permit for the dam in 2013, but farmers in Victor Point as well as the conservation group WaterWatch of Oregon appealed that decision. Since then, the water district’s permit request for the water rights has been denied twice: First by the Oregon Water Resources Commission in 2019, and then the appeal of the East Valley Water District was also denied by the Oregon Court of Appeals in 2023.

Motivations for the dam

The East Valley Water District, the proponents of the dam, represent farmers from the Woodburn, Mount Angel, Molalla and Silverton areas who want access to the Drift Creek water supply for their crops. The district accounts for approximately 36,000 acres of farms in these areas.

If built, the reservoir and dam would help farmers in the water district irrigate their farms and nurseries, as the district claims they need more water. According to the district, this water supply would especially help farms in areas like Mount Angel, which has a low groundwater supply.

“Limited surface water supplies and lowering ground water levels make the development of a new surface water source an imperative,” the district said in a statement. “… Nearly three square miles of high-value irrigated agriculture is at risk without the development of a safe, sustainable water supply development project.”

The proposed location for the dam was not without forethought, according to the water district.

“The District studied over 75 potential sites for the project,” the agency said in a statement. “Stringent screening criteria including evaluation of stream flows, environmental conditions, geological considerations and fault lines deemed Drift Creek as the most viable location for the reservoir.”

East Valley Water also added that they have gotten positive feedback from the Woodburn community on its efforts.

“Our farmer members — including those in the nursery sector — repeatedly tell us that water scarcity negatively impacts their operations and constrains growth. A new water storage permit is a first step to address water scarcity within the district,” said Lauren Reese, the district’s executive secretary.

Farmer vs. farmer

The issue before the Supreme Court primarily pertains to water law disputes between the district and WaterWatch, however, farmers close to the proposed dam were some of the earliest proponents against the construction.

While farmers in the East Valley Water District want the dam, the farmers in the Victor Point area where the dam will be built do not.

That’s because if the reservoir is built, it would condemn and flood multiple Victor Point farmers’ properties, according to WaterWatch attorney Brian Posewitz.

“The farmers were concerned mostly about the fact that their land was going to get flooded by this reservoir and the district had the authority to take it by what’s called eminent domain,” Posewitz said. “The government can condemn private property for public purpose, and the water district is a government entity. So that was (the farmers’) main objection.”

The East Valley Water District is within its legal rights to take the Victor Point farmer’s land to build the reservoir and would provide financial compensation to the landowners. Oregon has state regulations that dictate how and when property can be seized via eminent domain.

However, many farmers in Victor Point still don’t want to part with their land.

Environmental stakes

WaterWatch of Oregon is also arguing against the dam being built for conservation reasons.

“We represent the public interest in the ecological value of the stream for fishing and wildlife and aesthetic value,” said Posewitz. “That’s our interest in the case and what we were trying to protect.”

The Drift Creek stream is home to multiple native species – most prominently, cutthroat trout that use the stream to spawn and migrate. WaterWatch argues that the proposed dam and reservoir would disrupt streamflow and thus harm the trout.

Following this month’s initial oral arguments at the Supreme Court over the proposed dam, WaterWatch released a statement: “In addition to defeating the purpose of the instream water right for cutthroat trout, the proposed dam and reservoir on Drift Creek would harm the habitat of other fish, including Pacific lamprey, winter steelhead, spring Chinook salmon and Coho salmon.”

WaterWatch has also garnered support from local Native American tribes and conservation groups, including the Columbia Riverkeepers and Confederated Tribes of Warm Springs.

While arguments in the Oregon Supreme Court over the dam and water rights already began earlier this month, the final decision in the case could take a while.

According to Reese with East Valley Water District, approval of the water storage issue in the case before the Oregon Supreme Court would not authorize dam construction, as several more government approvals would be needed to build the dam.

The court is yet to state when they will rule, and WaterWatch attorneys believe it could be several months or up to a year.