The Fishhawk Lake Reserve and Community is fighting a $439,200 penalty from the state for allegedly killing more than 30,000 fish after draining the reservoir in 2019.
The lake, considered state waters, is held back by an earthen dam built along Fishhawk Creek in the 1960s for a private community on the border of Clatsop and Columbia counties. A drainpipe through the dam feeds into the creek and eventually the Nehalem River. The homeowners association argues that the state mandated a repair of the drainpipe and was kept informed of the entire process.
A state investigation blamed the draining for sucking fish through the drainpipe and increased turbidity downstream, dumping sediment and depleting the dissolved oxygen in the water. State biologists estimated that 30,391 fish were killed, including 20,539 endangered coho salmon, 4,047 steelhead trout, 5,346 cutthroat trout and 459 trout of undetermined species.
The state Department of Environmental Quality fined the homeowners association and required a water quality management plan and a 10-year schedule for becoming compliant with environmental standards.
The state Department of Fish and Wildlife is seeking a separate claim against the homeowners association for the fish kill, but has not disclosed more information.
The homeowners association hired law firms Schwabe, Williamson & Wyatt and Hart Wagner and called for a hearing to contest the Department of Environmental Quality’s penalty. The lawyers argued that instead of being reckless, the association drained the lake in response to pressure from state agencies to repair the drainpipe and avoid a total failure of the dam in a major flood.
The lawyers argued that the association timed the draining of the lake with the low-flow period of Fishhawk Creek, adhered to the state’s in-water work period and installed curtains downstream of the dam to decrease turbidity. They blamed the state for a lack of follow-up regarding permitting and other guidance, and said the association “reasonably believed the state’s silence to be tacit approval of its plans to proceed.”
“There is no evidence to support DEQ’s claims of significant negative impacts to Fishhawk Lake’s aquatic life,” the lawyers wrote. “DEQ estimates of damage are grossly inflated based upon misassumptions and extrapolations from limited and unreliable evidence.”
The homeowners association plans to begin construction this year of a new spillway over one side of the dam and a fish ladder tunneled through the other. The project would cost more than $4 million and finish in 2022.
County and state leaders and agencies, including the Department of Fish and Wildlife, have backed the project. The association is applying for state and federal grants based on safety and the project’s benefits to fish passage.
“Beginning construction is contingent upon permit and approvals being issued on time and resolution of the state’s claims,” said Nicole Case, a member of the homeowners association.
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