Via Certified Mail, Return Receipt Requested

March 8, 2017

Robert M. Speer
Secretary of the Army
101 Army Pentagon
Washington, D.C. 20310-0101

Todd T. Semonite
Commanding General and Chief of Engineers
U.S. Army Corps of Engineers
441 G Street N.W.
Washington, D.C. 20314-1000

Jose Aguilar
Commander and District Engineer
U.S. Army Corps of Engineers
1201 N.E. Lloyd Blvd., Suite 400
Portland, Oregon 97232

Re: Notice of Intent to Sue under the Endangered Species Act

Dear Sirs:

I write on behalf of Willamette Riverkeeper and The Conservation Angler

(Notifiers) to respectfully request that you remedy ongoing violations of the
Endangered Species Act (ESA), 16 U.S.C. 1531-1544. As Notifiers establish below,
the U.S. Army Corps of Engineers (Corps of Engineers) and its officials have violated
and are violating the ESA by authorizing, approving, or otherwise undertaking (including
by funding or contracting with third parties), among other actions specified below, the
production and release of summer steelhead from the South Santiam fish hatchery along
the South Santiam River in Oregon, and from the Marion Forks fish hatchery along
Marion and Horn Creeks in the North Santiam River basin in Oregon.

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 The South Santiam and North Santiam Rivers are a part of the upper Willamette
River basin in Oregon. Winter steelhead are native to the upper Willamette River basin,
and are listed as threatened with extinction under the ESA. Summer steelhead are not
native to the upper Willamette River basin. Summer steelhead released into the South
Santiam River basin and North Santiam River basin compete with, prey upon and/or
interbreed with winter steelhead. The Corps of Engineers has illegally failed to reinitiate
consultation after new information reveals effects on winter steelhead of the release of
summer steelhead from the South Santiam hatchery and the Marion Forks hatchery, and/
or other hatcheries the Corps of Engineers owns, funds, or controls, into the South
Santiam River basin and the North Santiam River basin.

The Corps of Engineers has also illegally failed to consult, or to reinitiate

consultation, as to the effects on winter steelhead and spring Chinook salmon of the
release of rainbow trout into reservoirs above dams in the South Santiam River basin and
the North Santiam River basin, where juvenile winter steelhead and/or spring Chinook
salmon are present.

The Corps of Engineers also has no take permit or authorization required before
it finances, allows, or otherwise causes winter steelhead to be collected and transported
within the South Santiam River basin, and for the take that occurs from rainbow trout
predation on winter steelhead and spring Chinook salmon.

1. Notifiers:
Willamette Riverkeeper was founded in 1996 and focuses on protecting and
restoring the resources of the Willamette River basin in Oregon. Willamette Riverkeeper
works on programs and projects ranging from Clean Water Act compliance and river
education, to Superfund cleanup and habitat restoration. Willamette Riverkeeper had a
significant role in the 2008 Biological Opinion related to the effects of federal facilities
and projects on native wild salmon and steelhead trout in the Willamette River basin.
The Conservation Angler is non-profit group that advocates for wild fish and
fisheries, and to protect and conserve wild steelhead, salmon, trout and char throughout
their Pacific range. The Conservation Angler is a watch-dog organization - holding public
agencies, countries and nations accountable for protecting and conserving wild fish for
present and future generations - using legal, administrative and political means necessary
to prevent the extinction and to foster a long-term recovery of wild steelhead, salmon,
trout and char to fishable and ultimately, harvestable abundance.

2. Winter Steelhead in the North Santiam and South Santiam River Basins.

On March 25, 1999, the National Marine Fisheries Service (NMFS) listed
naturally-spawning anadromous steelhead (Oncorhynchus mykiss) in the Upper
Willamette River evolutionarily significant unit (ESU) as threatened with extinction
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under the ESA. 64 Fed. Reg. 14517 (March 25, 1999).1 This ESU occupies the
Willamette River and its tributaries, upstream from Willamette Falls to the Calapooia
River, inclusive. Id. at 14521. Steelhead from the Upper Willamette River are
genetically distinct from those in the lower river, likely because of Willamette Falls,
which was a barrier to some anadromous fish migration before fish ladders were built in
1885. Id. Upper Willamette River steelhead are late-migrating winter steelhead that
enter fresh water primarily in March and April. Id. Historically, their spawning was
concentrated in the North and Middle Santiam River basins. Id.

When it listed the Upper Willamette River ESU, NMFS was concerned about the
universally declining trends in abundance in the relatively small-to-moderate sized runs
of winter steelhead in this ESU. Id. at 14524. NMFS noted that steelhead native to the
Upper Willamette River ESU are late-run winter steelhead, but introduced hatchery
stocks of summer and early-run winter steelhead also occur in the upper Willamette
River. Id. NMFS was concerned about the potential risks associated with interactions
between non-native summer and wild winter steelhead, whose spawning areas are
sympatric in some rivers (especially the Mollala and North and South Santiam Rivers).
Id.

Subsequently, in 2006, NMFS listed or re-listed ten distinct population segments

(DPSs) of West Coast steelhead as threatened with extinction, or as endangered, under
the ESA. 71 Fed. Reg. 834 (Jan. 5, 2006). The listing includes the upper Willamette River
DPS. Id. at 860. NMFS found that the [upper Willamette River] DPS continues to be
spatially well distributed, occupying each of the four major subbasins (the Mollala, North
Santiam, South Santiam, and Calapooia Rivers). Id. Each of these subbasins has a
distinct population of winter steelhead. Recovery Plan at 11-12. The South Santiam
River and the North Santiam River are home to the two core populations of winter
steelhead in the upper Willamette River. Recovery Plan 5-16.

For the upper Willamette River DPS, in 2006, NMFS found that [t]he recent 5-
year mean abundance . . . remains low for an entire DPS (5,819 adults), and individual
populations remain at low abundance. Long-term trends in abundance are negative for all
populations in the DPS, reflecting a decade of consistently low returns during the 1990s.
Id. at 853.

Hatchery winter steelhead programs in the Willamette River basin were

terminated in the 1990s. 2011 Recovery Plan at 9. By contrast, ODFW introduced

1 To be an ESU, a population must satisfy two criteria: (1) It must be reproductively

isolated from other population units of the same species, and (2) it must represent an
important component in the evolutionary legacy of the biological species. 41 Fed. Reg.
at 14518.

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summer steelhead into the upper Willamette River basin in the late 1960s. 2008 BiOp at
2-96. The stock for these non-native fish were taken from the Washougal River and
Skamania Hatchery in Washington. BiOp at 2-98. These summer-run steelhead are not
native to the Willamette River and are not of the same ESU as native winter steelhead.
Recovery Plan at 5-20. Since 1973, the broodstock for summer steelhead releases into
South Santiam and the North Santiam basin have been collected only from hatchery
summer steelhead returning to the South Santiam. BiOp at 2-98. Summer steelhead are
released into the South Santiam River and the North Santiam River basin in April of each
year. BiOp at 2-99.

3. Corps of Engineers Roles in Hatcheries.

The Corps of Engineers owns or has ownership interests in the South Santiam
hatchery and the Marion Forks hatchery (including the Minto Facility), as well as other
hatcheries in the Upper Willamette River basin. The Corps of Engineers has contracted or
otherwise entered into agreements with the Oregon Department of Fish and Wildlife
(ODFW) to produce and/or release fish from the South Santiam hatchery and the
Marion Forks hatchery, and other hatcheries, in the Upper Willamette River basin. The
contracts or agreements executed by the Corps of Engineers gave or give ODFW
permission to use the South Santiam hatchery and the Marion Fork hatchery, and other
hatcheries, to produce and release certain species of fish. The contracts or agreements
also gave or give ODFW permission to use the South Santiam hatchery and the Marion
Fork hatchery, and other hatcheries, if there is additional capacity, to produce and release
other (non-denominated) fish species. ODFW has produced and released summer
steelhead and rainbow trout into the South Santiam River and into the North Santiam
River basin. The Corps of Engineers has paid for or facilitated the production or release
of summer steelhead and rainbow trout into the South Santiam River and North Santiam
River basins.

4. 2008 Biological Opinion.

In 2007, the Corps of Engineers, the Bonneville Power Administration, and the
U.S. Bureau of Reclamation prepared a Supplemental Biological Assessment and
consulted with NMFS under Section 7 of the ESA to obtain its opinion as to effects of
federal actions and facilities affecting ESA-listed salmonids in the upper Willamette
River basin, including the South Santiam hatchery and the Marion Forks hatchery. In
2008, NMFS issued a Biological Opinion (BiOp) as to the effects of these federal
actions and facilities.

The BiOp notes that the non-native summer steelhead hatchery program creates
threats to listed winter steelhead in the Upper Willamette River. BiOp at 3-25. The BiOp
notes that [a]lthough there is some separation in run and spawn timing between
hatchery-origin summer and wild winter steelhead, the potential exists for genetic

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introgression. Id. The BiOp notes that [c]ompetition for rearing resources and spawning
sites may also occur between hatchery-origin summer steelhead and wild winter
steelhead. Id. The BiOp notes that in the South Santiam River, hatchery summer
steelhead spawn naturally in the same areas as winter steelhead (Schroeder et al. 2006).
Since there is some overlap in the spawn timing of summer- and winter-run fish from
February through March, the potential exists for summer steelhead to interbreed with
winter steelhead in the South Santiam River. BiOp at 5-523. The BiOp notes that
hatchery [summer] steelhead have more of a tendency to residualize than hatchery
spring Chinook. In the Willamette Basin, the primary concern is with residual summer
steelhead, and that residual summer steelhead have been observed in all areas where
hatchery fish are released. BiOp at 5.627.

As to the best available science at the time the BiOp was prepared, the Incidental
Take Statement (ITS) that accompanies the BiOp states: Levels of incidental mortality
for juveniles and adults attributable to hatchery operations per the [Reasonable and
Prudent Alternative] and Proposed Actions are, in most areas, not quantifiable at the
present time (e.g., predation by program hatchery-origin fish on listed fish below release
locations; competition and density dependent effects in the Lower Willamette and
estuary). BiOp at 11-8.

The Corps of Engineers funds or facilitates collection of returning adult winter

steelhead, as well as spring Chinook salmon, at the Santiam Hatchery, and their transport
into habitat above the Foster Dam on the South Santiam River. The Corps of Engineers
also funds or facilitates collection of spring Chinook salmon at the Minto Fish Collection
Facility, and their transport into habitat above the Detroit Dam on the North Santiam
River.

At least as for winter steelhead and spring Chinook habitat above the Foster Dam,
the BiOp notes that [a]ngler evidence indicates that (trout) releases migrate within
basins to areas heavily used by [] spring Chinook. BiOp 2-100. The BiOp also notes that
agencies must [d]etermine the impact of rainbow trout predation on juvenile ESA-listed
species in 2008, and that a prior study involved several assumptions that were likely
invalid. Id. The BiOp anticipates subsequent reform actions as to any trout releases
into these waters. Id. The same effects are likely to occur as to spring Chinook in habitat
above the Detroit Dam on the North Santiam River.

5. New Information Re Effects from Summer Steelhead.

Since the BiOp and ITS were issued, new information indicates that effects from
the release of summer steelhead into habitat for winter steelhead is more quantifiable that
when those documents were issued, and studies and data show that summer steelhead
cause significant adverse effects to winter steelhead.

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 For example, it has been proven that there is some overlap in the spawn timing for
native winter steelhead and hatchery summer steelhead. 2016 5-Year Review at 39.
Johnson et al. (2013) show that genetic analysis has identified approximately 10 percent
of the juvenile steelhead at Willamette Falls as summer x winter-run hybrids, and 11.1
percent in the North Santiam River and 14.8 percent in the South Santiam River as
summer x winter-run hybrids. Id. Further, Van Doornick et al. (2015) note genetic
analysis suggesting there is introgression among native winter steelhead and hatchery
summer steelhead. Id. There is concern that even in the absence of long-term
introgression, hybridization will decrease the overall productivity of the native winter-run
steelhead population. Id. Apart from hybridization, hatchery summer steelhead pose
threats to native winter steelhead juveniles. Id. In the North Santiam River basin and the
South Santiam River basin, juveniles are largely confined below much of their historical
spawning and rearing habitat. Id. Releases of hatchery summer steelhead can exceed
rearing capacities in these confined areas, and displace native winter steelhead. Id.; see
also Harnish et al. (2014). Further, summer steelhead (mostly males) residualize in the
waters into which they are released. Summer steelhead compete with juvenile steelhead
for food, and male summer steelhead can and do spawn with winter steelhead. Finally,
recent data (Sharpe (2017)) related to spawner abundance below Foster Dam show a
significant increase in summer steelhead spawners versus winter steelhead, and some of
the highest pHOS levels in the past 14 years.

These and other sources of new information require the Corps of Engineers to
reinitiate consultation with NMFS as to effects on native winter steelhead of the release
of hatchery summer steelhead. 50 C.F.R. 402.16(b).

6. New Information Re Effects from Rainbow Trout.

As noted, the Corps of Engineers allows, authorizes and/or funds the production
and release of rainbow trout into the reservoir above Foster Dam and Detroit Dam. These
introduced trout prey upon and/or compete with juvenile winter steelhead and/or juvenile
spring Chinook salmon. New data and information require the Corps of Engineers to
reinitiate consultation with NMFS as to effects on native winter steelhead of the release
of trout into reservoirs. 50 C.F.R. 402.16(b).

7. Illegal Take.

The Corps of Engineers and its contractors and assignees do not have a required
take permit under 16 U.S.C. 1536(b)(4) or other authorization from NMFS to collect,
capture, or handle ESA-listed winter steelhead in the South Santiam River basin.
Returning adult winter steelhead are collected at Foster Dam, and transported for release
above the dam. The Corps has no take permit or other authorization to cover these
activities.

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 The Corps of Engineers and/or its contractors and assignees, by stocking
hatchery-raised catchable resident trout in Upper Willamette Basin watersheds, cause
take of winter steelhead and spring Chinook, because hatchery trout prey on them. The
Corps of Engineers has no immunity under the ITS for predation by hatchery trout as a
form of take of winter steelhead and spring Chinook.

8. Violation of ESA Section 7(d).

The Corps of Engineers is in violation of Section 7(d) of the ESA, 16 U.S.C.

1536(d), for making irreversible and/or irretrievable commitments of resources before
completing consultation under Section 7(a)(2) on the effects to the ESA-listed species
and critical habitat identified in this notice resulting from the hatchery programs. The
Corps of Engineers funding and/or commitments to fund the operations, maintenance,
improvements, and/or upgrades of these hatcheries constitute irreversible and/or
irretrievable commitments of resources that violate this provision.

9. Jeopardy.

Under Section 7 of the ESA, the Corps of Engineers is required to insure that any
actions it funds or authorizes are not likely to jeopardize the continued existence of any
threatened or endangered species or result in the destruction or adverse modification of
designated critical habitat. 16 U.S.C. 1536(a)(2). The ongoing operations and
maintenance of the hatchery programs funded and authorized by the Corps of Engineers
jeopardize winter steelhead and spring Chinook salmon, and cause the destruction and/or
adverse modification of their critical habitat.

This letter serves as Notifiers notice of intent to sue the Corps of Engineers and
its officials under the ESA for these violations. 16 U.S.C. 1540(g)(2).

Notifiers anticipate that during the 60-day period when the Corps of Engineers
considers this notice, and before Notifiers file any lawsuit, the Corps of Engineers may
wish to meet and confer as to its position as to these matters. Notifiers welcome such an
engagement. Notifiers are represented by counsel in this matter:

Peter M.K. Frost

Western Environmental Law Center
1216 Lincoln Street
Eugene, Oregon 97401
541-359-3238
frost@westernlaw.org

Please contact me if the Corps of Engineers is interested in meeting, or if you

have questions or concerns about this notice of intent to sue.

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Thank you for your time and consideration.

Sincerely,

Peter M.K. Frost

Attorney for Notifiers

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