KAMPMEIER & KNUTSEN PLLC

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1 KAMPMEIER & KNUTSEN PLLC ATTORNEYS AT LAW BRIAN A. KNUTSEN Licensed in Oregon & Washington January 13, 2016 Via (where indicated) and Certified Mail Return Receipt Requested Secretary Penny Pritzker United States Department of Commerce 1401 Constitution Ave., N.W. Washington, D.C Assistant Administrator Eileen Sobeck National Marine Fisheries Service 1315 East-West Highway Silver Spring, MD Secretary Sally Jewell United States Department of the Interior 1849 C Street, N.W. Washington, D.C Secretary_Jewell@ios.doi.gov United States Department of Commerce 1401 Constitution Ave., N.W. Washington, D.C National Marine Fisheries Service 1315 East-West Highway Silver Spring, MD Director Daniel M. Ashe United States Fish and Wildlife Service 1849 C Street, N.W., Room 3331 Washington, D.C Dan_Ashe@fws.gov RE: Notice of Intent to Sue for Violations of Section 7 of the Endangered Species Act Associated with Funding Hatcheries Under the Mitchell Act Dear Honorable Civil Servants: This letter provides notice that the United States Department of Commerce and its Secretary Penny Pritzker (collectively, DOC ) and the National Marine Fisheries Service and its Assistant Administrator for Fisheries Eileen Sobeck (collectively, NMFS ) are in violation of the Endangered Species Act ( ESA ) for funding hatchery programs throughout the Columbia River Basin under the Mitchell Act without complying with the procedural and substantive requirements of section 7 of the ESA, 16 U.S.C This letter further provides notice under section 11(g) of the ESA, 16 U.S.C. 1540(g), of Wild Fish Conservancy s intent to sue for the violations described herein to enforce the ESA.

2 I. Legal Framework. Section 7 of the ESA imposes a substantive obligation on federal agencies to insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of habitat that has been designated as critical for such species. See 16 U.S.C. 1536(a)(2) (emphasis added); Pyramid Lake Paiute Tribe of Indians v. U.S. Dep t of the Navy, 898 F.2d 1410, 1415 (9th Cir. 1990). Such jeopardy results where an action reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species. 50 C.F.R Destruction or adverse modification of critical habitat occurs where there is a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Id. In fulfilling the substantive mandates of section 7 of the ESA, federal agencies planning to fund or undertake an action that may affect ESA-listed species or their critical habitat are required to consult with NMFS and/or the United States Fish and Wildlife Service ( FWS ) regarding the effects of the proposed action. 50 C.F.R (a). Actions that are likely to adversely affect a listed species or its critical habitat require formal consultation, which concludes with NMFS and/or FWS issuance of a biological opinion determining whether the action is likely to jeopardize ESA-protected species or result in adverse modification of critical habitat. Id (a), (b), (h)(3). Once initiated, formal consultation is to conclude within 90 days unless the agencies mutually agree in writing to extend the consultation period before the close of the 90 day period. Id (e). Agencies are prohibited from making any irreversible or irretrievable commitment of resources with respect to the action that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures until such consultation is completed. 16 U.S.C. 1536(d). After a biological opinion is issued, federal agencies have a continuing duty under section 7 of the ESA to insure that their actions will not jeopardize the continued existence of listed species or adversely modify designated critical habitat. An agency must re-initiate consultation whenever the amount or extent of taking specified in the incidental take statement is exceeded, new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered, where the action in question is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion, or where a new species is listed or critical habitat designated that may be affected by the identified action. 50 C.F.R (a) (d). II. Factual Background. A. Affected Species and Critical Habitat. The Upper Columbia River spring-run Chinook salmon evolutionary significant unit ( ESU ) was listed as an endangered species under the ESA in Fed. Reg. 14,308 (March 24, 1999); and see 70 Fed. Reg. 37,160 (June 28, 2005); and 79 Fed. Reg. 20,802 (April 2

3 14, 2014); 50 C.F.R (a). Critical habitat had been designated for this species. See 70 Fed. Reg. 52,630 (Sept. 2, 2005). The Snake River spring/summer-run Chinook salmon ESU was listed as a threatened species in Fed. Reg. 34,639 (April 22, 1992); see also 70 Fed. Reg. 37,160 (June 28, 2005); and 79 Fed. Reg. 20,802 (April 14, 2014). Critical habitat has been designated for this species. 64 Fed. Reg. 57,399 (Oct. 25, 1999). The Snake River fall-run Chinook salmon ESU was listed as a threatened species in Fed. Reg. 14,653 (April 22, 1992); see also 70 Fed. Reg. 37,160 (June 28, 2005); and 79 Fed. Reg. 20,802 (April 14, 2014). Critical habitat has been designated for this species. 58 Fed. Reg. 68,543 (Dec. 28, 1993). The Lower Columbia River Chinook salmon ESU was listed as a threatened species in Fed. Reg. 14,308 (March 24, 1999); see also 70 Fed. Reg. 37,160 (June 28, 2005); and 79 Fed. Reg. 20,802 (April 14, 2014). Critical habitat has been designated for this species. 70 Fed. Reg. 52,630 (Sept. 2, 2005). The Upper Willamette River Chinook salmon ESU was listed as a threatened species in Fed. Reg. 14,308 (March 24, 1999); see also 70 Fed. 37,160 (June 28, 2005); and 79 Fed. Reg. 20,802 (April 14, 2014). Critical habitat has been designated for this species. 70 Fed. Reg. 52,630 (Sept. 2, 2005). The Lower Columbia River coho salmon ESU was listed as a threatened species in Fed. Reg. 37,160 (June 28, 2005); see also 79 Fed. Reg. 20,802 (April 14, 2014). The Columbia River chum salmon ESU was listed as a threatened species in Fed. Reg. 14,508 (March 25, 1999); see also 70 Fed. Reg. 37,160 (June 28, 2005); and 79 Fed. Reg. 20,802 (April 14, 2014). Critical habitat has been designated for this species. 70 Fed. Reg. 52,630 (Sept. 2, 2005). The Snake River sockeye salmon ESU was listed as an endangered species under the ESA in Fed. Reg. 58,619 (Nov. 20, 1991); see also 70 Fed. Reg. 37,160 (June 28, 2005); and 79 Fed. Reg. 20,802 (April 14, 2014). Critical habitat has been designated for this species. 58 Fed. Reg. 68,543 (Dec. 28, 1993). The Upper Columbia River distinct population segment ( DPS ) of steelhead was first listed as an endangered species under the ESA in Fed. Reg. 43,937 (Aug. 18, 1997). The species is currently listed as a threatened species under the ESA. 71 Fed. Reg. 834 (Jan. 5, 2006); 74 Fed. Reg. 42,605 (Aug. 24, 2009); 79 Fed. Reg. 20,802 (April 14, 2014); 50 C.F.R (c)(25). Critical habitat has been designated for the Upper Columbia River steelhead. 70 Fed. Reg. 52,630 (Sept. 2, 2005); 50 C.F.R The Snake River Basin steelhead DPS was listed as a threatened species in Fed. Reg. 43,937 (Aug. 18, 1997); see also 71 Fed. Reg. 834 (Jan. 5, 2006); and 79 Fed. Reg. 20,802 3

4 (April 14, 2014). Critical habitat has been designated for this species. 70 Fed. Reg. 52,630 (Sept. 2, 2005). The Middle Columbia River steelhead DPS was listed as a threatened species in Fed. Reg. 14,517 (March 25, 1999); see also 71 Fed. Reg. 834 (Jan. 5, 2005); and 79 Fed. Reg. 20,802 (April 14, 2014). Critical habitat has been designated for this species. 70 Fed. Reg. 52,630 (Sept. 2, 2005). The Upper Willamette River steelhead DPS was listed as a threatened species in Fed. Reg. 14,517 (March 25, 1999); see also 71 Fed. Reg. 834 (Jan. 5, 2006); and 79 Fed. Reg. 20,802 (April 14, 2014). Critical habitat has been designated for this species. 70 Fed. Reg. 52,630 (Sept. 2, 2005). The Lower Columbia River steelhead DPS was listed as a threatened species in Fed. Reg. 13,347 (March 19, 1998); see also 71 Fed. Reg. 834 (Jan. 5, 2006); and 79 Fed. Reg. 20,802 (April 14, 2014). Critical habitat has been designated for this species. 70 Fed. Reg. 52,630 (Sept. 2, 2005). The southern DPS of the Pacific Eulachon was listed as a threatened species in Fed. Reg. 13,012 (Mar. 17, 2010). Critical habitat has been designated for this species. 76 Fed. Reg. 65,324 (October 20, 2011). The coterminous United States population of bull trout (Salvelinus confluentus) was listed as threatened under the ESA in Fed. Reg. 58,910 (November 1, 1999). The bull trout was initially listed as three separate DPSs, which were later consolidated (along with two other population segments) into one listed taxon. FWS has designated critical habitat for bull trout. 75 Fed. Reg. 63,898 (Nov. 17, 2010). B. NMFS Funding of Hatchery Programs under the Mitchell Act. Congress enacted the Mitchell Act on May 11, 1938, in an effort to mitigate adverse effects to salmonids in the Columbia River Basin resulting from the construction of dams, water diversions, logging, and pollution. The statute includes the following authorization: The Secretary of Commerce is authorized and directed to establish one or more salmon-cultural stations in the Columbia River Basin in each of the States of Oregon, Washington, and Idaho. *** *** *** *** *** *** The Secretary of Commerce is further authorized and directed to perform all other activities necessary for the conservation of fish in the Columbia River Basin in accordance with law. 16 U.S.C Congress has appropriated funds under the Mitchell Act on an annual basis since

5 NMFS distributes funds appropriated under the Mitchell Act that Congress has allocated to hatchery programs. Mitchell Act funding of hatchery programs ranged from $12 to $22 million per year between 2003 and These funds have been used to support around 62 hatchery programs that produce approximately 63 million fish annually in the Columbia River Basin. Mitchell Act funds are used for operational elements needed to run the facilities and programs and for maintenance of hatchery facilities and associated equipment. Appended hereto as Appendix A is a table that summarizes the hatchery programs funded by NMFS under the Mitchell Act based upon currently available information. 1 C. Adverse Effects of Hatchery Programs Funded Under the Mitchell Act. The hatchery programs funded by NMFS under the Mitchell Act adversely affect the ESA-listed species and critical habitat identified above through a variety of mechanisms. NMFS has summarized some of the adverse impacts to these ESA-listed species and their critical habitat in the following document: Effects of Hatchery Programs on Salmon and Steelhead Populations: Reference Document for NMFS ESA Hatchery Consultations (March 7, 2011) ( Hatchery Effects Document ). A copy of the Hatchery Effects Document is appended hereto as Appendix B and incorporated herein by this reference. NMFS organizes the adverse impacts into six categories: facility effects, fish removal, genetics, ecological interactions, harvest, and monitoring and evaluation. NMFS describes facility effects as impacts arising from the physical existence and basic operation of the hatchery, including specific fish culture impacts. There are three subcategories: general facility failure, water intake, and structures. Fish removal impacts are those to the target population and non target population caused by removal of fish for culture, usually adults for broodstock but can be juveniles or eggs. Broodstock collection can affect listed salmonids through the method of collection and by the removal of adults from the spawning population. Adverse genetic effects result in losses of fitness and decreases in diversity caused by genetic mechanisms. NMFS explains that a defining characteristic of anadromous salmonids is their high fidelity to their natal streams. Their ability to home with great accuracy and maintain high fidelity to natal streams has encouraged the development of locally adapted genetic characteristics that allow the fish to use specific habitats. The genetic risks that artificial propagation pose to naturally produced populations can be separated into reductions or changes in the genetic variability (diversity) among and within populations (Hard et al. 1992; Cuenco et al. 1993; NRC 1996; Waples and Drake 2004). [NMFS] consider[s] three types of effects: loss of within-population diversity, outbreeding effects, and domestication selection. In most cases, genetic change is caused by the hatchery environment or by management of the hatchery program, and does not become an issue until mating occurs between hatchery-origin and naturalorigin fish, either of the same or different populations. 1 Information in the table in Appendix A is from the Final Environmental Impact Statement to Inform Columbia River Basin Hatchery Operations and Funding of Mitchell Act Hatchery Programs, NMFS (2014). 5

6 NMFS defines ecological effects as losses due to ecological interactions between hatchery-origin and natural origin fish. Ecological interactions include disease, competition (density-dependence), predation, and marine derived nutrients. Harvest effects include [m]ortalities to target and nontarget populations due to harvest fisheries managed for, or directed at, the harvest of hatchery-origin fish. NMFS explains that such effects have been identified as one of the primary factors leading to the decline of many naturally produced salmonid stocks (Flagg et al. 1995; Myers et al. 1998). Monitoring and evaluation effects are those occurring as a result of efforts to monitor and evaluate the effects and/or success of a hatchery programs. NMFS explains that these efforts can have potential adverse impacts on listed fish in the hatchery though injuries incurred during sampling and marking. Sampling within the hatchery can include direct mortalities (e.g., genetic analysis, disease pathology, smolt condition) and indirect take (e.g. sorting, marking, transfers). III. DOC and NMFS Violations of the ESA. DOC and NMFS are in violation of the ESA by providing, authorizing, approving, and/or disbursing funds for the operations and maintenance of, and improvements and upgrades to, hatchery programs under the Mitchell Act without complying with the procedural and substantive requirements of section 7 of the ESA as described below. The funding addressed by this Notice Letter encompasses each and every distribution of funds under the Mitchell Act for operations, maintenance, improvements, and/or upgrades made during the last six years and any such distribution that occurs after the issuance of this Notice Letter. Further, the violations addressed by this Notice Letter include all such distributions under the Mitchell Act for hatchery programs whether or not the program is identified on the table appended hereto as Appendix A except for the programs addressed in the following two biological opinions: (1) Endangered Species Act Section 7 Consultation Biological Opinion on USFWS Artificial Propagation Programs in the Lower Columbia and Middle Columbia River (2007); and (2) Endangered Species Act Section 7(a)(2) Biological Opinion for Sandy River Spring Chinook Salmon, Coho Salmon, Winter Steelhead, and Summer Steelhead (2014). 2 A. Violations of the Consultation Requirements of Section 7 of the ESA. The hatchery programs funded by DOC and NMFS under the Mitchell Act adversely affect the ESA-listed species and critical habitat described in section II.A of this Notice Letter. DOC and NMFS are therefore required to consult with NMFS and FWS on the effects of those hatchery programs under section 7(a)(2) of the ESA. DOC and NMFS are in violation of section 7(a)(2) of the ESA for failing to consult, reinitiate consultation, and/or complete consultation with NMFS and FWS under section 7(a)(2) on the effects of the hatchery programs funded under the Mitchell Act. 2 The table appended hereto as Appendix A identifies the hatchery programs funded under the Mitchell Act that are addressed in these two biological opinions. 6

7 DOC and NMFS have never consulted with NMFS on some of the hatchery programs at issue. For the others, NMFS did consult with itself many years ago. For example, NMFS issued the Biological Opinion on Artificial Propagation in the Columbia River Basin on March 29, However, numerous actions and events have occurred during the seventeen years since that biological opinion was issued that have triggered the obligation to reinitiate consultation. Indeed, NMFS issued a letter to several of the hatchery operators dated July 27, 1999, indicating that a new consultation was required and requesting that the agencies reinitiate consultation. Most significantly, the listing of new species as threatened and endangered under the ESA and the designation of new critical habitat have triggered DOC and NMFS duty to reinitiate consultation with NMFS. See 50 C.F.R (d). For example, the March 29, 1999, biological opinion did not address the following seven salmonid species that NMFS listed under the ESA around that same time or later: the Upper Columbia River spring-run Chinook salmon ESU, the Lower Columbia River Chinook salmon ESU, the Upper Willamette River Chinook salmon ESU, the Lower Columbia River coho salmon ESU, the Columbia River chum salmon ESU, the Middle Columbia River steelhead DPS, and the Upper Willamette River steelhead DPS. Despite the fact that all but one of these species was listed under the ESA seventeen years ago, NMFS has yet to complete consultation on the effects to the species from the releases of tens of millions of hatchery fish into the Columbia River Basin annually that are funded by NMFS. NMFS has also designated and/or re-designated critical habitat for several of the ESA-listed species identified in section II.A of this Notice Letter since the March 29, 1999, biological opinion, which requires the reinitiation of consultation. Since NMFS March 29, 1999, biological opinion, new information has become available that reveals effects from the hatchery programs to the ESA-listed species and their critical habitat identified in section II.A of the Notice Letter that warrants the reinitiation of consultation. See 50 C.F.R (b). For example, the Hatchery Scientific Review Group ( HSRG ) has completed reviews of hatchery programs throughout the Pacific Northwest, including the Columbia River Hatchery Reform System-Wide Report (Feb. 2009). The HSRG is an independent scientific panel established and funded by Congress to assemble, organize, and apply the best available scientific information and to provide guidance to policymakers and technical staff involved in hatchery reform. The HSRG has provided extensive recommendations on how to manage hatchery programs, including programs addressed by this Notice Letter, consistent with the survival and recovery of native wild salmonid populations. The Independent Scientific Advisory Board ( ISAB ) has issued various reports and recommendations, including its Review of Salmon and Steelhead Supplementation (June 4, 2003). The ISAB is an independent science advisory board empaneled to evaluate and advise NMFS and the Northwest Power and Conservation Council on fish and wildlife programs. The ISAB s 2003 report reviewed the risks and benefits of hatchery supplementation programs and provided several conclusions and recommendations. The Recovery Science Review Panel ( RSRP ) was convened by NMFS to guide the scientific and technical aspects of recovery planning for listed salmon and steelhead species throughout the West Coast. The RSRP has provided guidance and recommendations related to hatchery programs since NMFS March 29, 1999, biological opinion, including those described 7

8 in its Report for the Meeting Held July 21 23, 2003, at NMFS Northwest Fisheries Science Center, and in its Report for Meeting Held August 30 September 2, 2004, also at NMFS Northwest Fisheries Science Center. Similarly, there have been numerous scientific studies and articles on the impacts of hatchery programs on wild salmonid populations since NMFS March 29, 1999, biological opinion. E.g., Myers, et al., Hatcheries and Endangered Salmon, Science, Vol. 303, No. 5666, p (2004). The articles, along with the reports and recommendations described above, require the reinitiation of consultation. DOC and NMFS are also required to reinitiate consultation with NMFS because the amount of take anticipated in the March 29, 1999, biological opinion and incidental take statement has been exceeded. See 50 C.F.R (a). The incidental take statement was premised upon the implementation of reasonable and prudent alternatives to the proposed action necessary to avoid jeopardizing the continued existence of the Snake River steelhead DPS and the Lower Columbia River steelhead DPS. Those measures required reducing and eventually eliminating entirely hatchery production of non-native steelhead in several rivers, including Salmon Creek, the Lower Clackamas River, the Sandy River, and the Klickitat River. This has not occurred and the amount of take contemplated by the incidental take statement has therefore been exceeded. To the extent that DOC and NMFS have initiated or reinitiated consultation with NMFS on their funding of hatchery programs under the Mitchell Act, DOC and NMFS have unreasonably delayed the completion of such consultation. DOC and NMFS have not consulted with FWS on the effects to bull trout and its critical habitat resulting from the hatchery programs funded under the Mitchell Act. To the extent any such consultation did occurred, DOC and NMFS were required to reinitiate such consultation due to the 2005 designation and the 2010 re-designation of critical habitat for bull trout and because of the reports, recommendations, and articles described above. DOC and NMFS are in violation of section 7(a)(2) of the ESA for failing to consult, reinitiate consultation, and/or complete consultation with NMFS and FWS on the effects to the ESA-listed species and critical habitat identified in section II.A of this Notice Letter resulting from the hatchery programs funded under the Mitchell Act. B. Unlawful Commitments of Irreversible and/or Irretrievable Resources. DOC and NMFS are in violation of section 7(d) of the ESA, 16 U.S.C. 1536(d), for making irreversible and/or irretrievable commitments of resources prior to completion of consultation under section 7(a)(2) of the ESA on the effects to the ESA-listed species and critical habitat identified in section II.A of this Notice Letter resulting from the hatchery programs funded under the Mitchell Act. DOC and NMFS funding and/or commitments to fund the operations, maintenance, improvements, and/or upgrades of hatchery programs under the Mitchell Act constitute irreversible and/or irretrievable commitments of resources that violate this provision. 8

9 C. Failure to Insure that the Hatchery Programs Do not Cause Jeopardy. In addition to the procedural consultation requirements of section 7 of the ESA, DOC and NMFS are required to insure that any actions they fund 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 by DOC and NMFS under the Mitchell Act jeopardize the ESA-listed species and cause the destruction and/or adverse modification of the critical habitat identified in section II.A of this Notice Letter. DOC and NMFS are in violation of section 7 of the ESA by funding the operations and maintenance of massive hatchery programs under the Mitchell Act without insuring that such programs are not likely to jeopardize the continued existence of ESA-listed species or result in the destruction or adverse modification of their critical habitat. These programs release tens of millions of hatchery fish into the Columbia River Basin every year, causing unknown levels of harm to threatened and endangered salmonids through the various mechanisms described herein and in Hatchery Effects Document attached hereto as Appendix B. Notably, NMFS March 29, 1999, biological opinion found that the hatchery programs evaluated therein are likely to jeopardize the continued existence of the Snake River steelhead DPS and the Lower Columbia River steelhead DPS. NMFS therefore included in the biological opinion reasonable and prudent alternatives needed to avoid jeopardizing these species, which required reducing and eventually eliminating entirely hatchery production of non-native steelhead. This has not occurred. As shown on the table attached hereto as Appendix A, the hatchery programs funded by NMFS under the Mitchell Act alone release over 1.3 million steelhead into the Columbia River basin annually from over twenty isolated hatchery programs. 3 The reasonable and prudent alternatives described in the March 29, 1999, biological opinion specifically required the phasing-out of non-endemic programs in several rivers where such programs continue to operate seventeen years later, including Salmon Creek, the Lower Clackamas River, the Sandy River, and the Klickitat River. Moreover, two additional steelhead DPS have been listed under the ESA that were not addressed by the March 29, 1999, biological opinion and the reasonable and prudent alternatives included therein the Middle Columbia River steelhead DPS and the Upper Willamette River steelhead DPS. Further, DOC and NMFS have failed to insure that the species identified in section II.A of this Notice Letter will not be jeopardized and that their critical habitat will not be adversely modified by funding the hatchery programs without complying with the consultation requirements of section 7 of the ESA as described herein. 3 The table attached hereto as Appendix A identifies the Type of program as Int for integrated programs and Iso for isolated programs. Isolated programs are those that intend for the hatchery-origin population to be reproductively isolated from the natural-origin population. 9

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12 APPENDIX A

13 Primary Facility Big Creek Hatchery Spring Creek National Fish Hatchery* Ringold Springs Hatchery North Toutle River Hatchery Kalama Falls Hatchery Kalama Falls Hatchery Klickitat Hatchery Klickitat Hatchery Little White/Willard National Fish Hatchery Complex Little White/Willard National Fish Hatchery Complex Little White/Willard National Fish Hatchery Complex* Population/Program Name Big Creek Fall Chinook (Tules-Hatchery) Spring Creek Fall Chinook (Tules- Hatchery) Columbia Lower Middle Columbia Fall Chinook (URB- Ringold-Hatchery) Toutle Fall Chinook (Hatchery) Kalama Fall Chinook (Hatchery) Kalama Spring Chinook Klickitat Fall Chinook (URB-Hatchery) Klickitat Spring Chinook Little White Salmon Fall Chinook (URB- Hatchery) Little White Salmon Fall Chinook (Tules- Hatchery) Little White Salmon Spring Chinook (Hatchery) Hatchery Programs Funded by NMFS under the Mitchell Act Stock/Race Sub-basin Type Operator Release Number Release Location Fall Chinook Big Creek Iso ODFW 6,043,000 Chinook are released from the Big Creek Hatchery in Big Creek (RM 3.3), a tributary entering the Lower Columbia ~RM 27. Fall Chinook Columbia Iso USFWS 10,500,000 Chinook are released from the Spring Creek NFH Gorge (Upper) facilities into the Columbia RKm 269. Fall Chinook Mid-Columbia Mainstem Iso WDFW 3,500,000 Fall chinook fingerlings are released from a 9-acre pond to an outlet that enters Spring Creek, which flows into the Columbia River (RKm 567). Fall Chinook Cowlitz Int WDFW 1,400,000 Release from North Toutle Hatchery into Green River (RKm 0.8), tributary to the North Fork Toutle River. Fall Chinook Kalama Int WDFW 7,000,000 Fish are released from the Kalama Falls Spring Chinook RKm 16.1 Kalama Iso WDFW 500,000 Fish are released from Gobar Pond (tributary to the Kalama River at RKm 32.2); and from Fallert Creek Hatchery (RKm 8.2). Fall Chinook Klickitat Iso YN 4,000,000 Fall chinook are released from the Klickitat Hatchery facility into the Klickitat River (RKm 70.0). Spring Klickitat Int YN 798,000 Spring chinook are released into the Klickitat River Chinook (RKm 68.0) from a pond adjacent to the hatchery. Fall Chinook Little White Iso USFWS 4,500,000 Chinook are released from the Little White Salmon Salmon NFH (RKm 2.0 of the Little White Salmon) into Fall Chinook Spring Chinook Little White Salmon Little White Salmon Drano Lake/Columbia River (RKm 261). Iso USFWS 1,700,000 Chinook are released from the Little White Salmon NFH (RKm 2.0 of the Little White Salmon) into Drano Lake/Columbia River (RKm 261). Iso USFWS 1,000,000 Chinook are volitionally released from the Little White Salmon facilities into the Little White Salmon River (RKm 2.0). 1

14 Sandy Hatchery# Sandy Spring Chinook Spring Chinook Carson National Fish Hatchery Washougal Hatchery Clackamas Hatchery Walla Walla Spring Chinook Washougal Fall Chinook (Hatchery) Clackamas Spring Chinook (Hatchery) Wind Spring Chinook (Hatchery) Sandy Int ODFW 208,000 Spring chinook are released from the Sandy Hatchery into Cedar Creek (RM 0.25), tributary to the Sandy River. Walla Walla Int CTUIR/ 250,000 Spring chinook yearling smolts are released into the USFWS South Fork Walla Walla River (RKm 7.8). Spring Chinook Fall Chinook Washougal Int WDFW 3,000,000 Subyearling fall chinook are released into Washougal RKm 27. Spring Willamette Iso ODFW 1,078,000 Multiple release sites in the lower Clackamas River Chinook Spring Chinook Carson National Fish Hatchery* Wind Iso USFWS 1,420,000 Chinook salmon smolts are released from the Carson National Fish Hatchery facilities into the Wind River. Prosser Hatchery Yakima Fall Chinook Fall Chinook Yakima Int YN 347,000 Fall Chinook are released from the Prosser Hatchery Little White Salmon/Willard National Fish Hatchery Complex Eagle Creek National Fish Hatchery Big Creek Hatchery Grays River Hatchery Bonneville Hatchery North Fork Toutle Hatchery Fallert Creek Hatchery Kalama Falls Hatchery Yakima Fall Chinook (Little White Salmon- Hatchery) facility (RM 46.8) on the Yakima River. Fall Chinook Yakima Iso USFWS 1,701,000 Fall chinook fry are transferred from the Little White Salmon/Willard NFH Complex to Yakima Nation Prosser Hatchery for rearing and later release from the Prosser Hatchery facility Clearwater Coho Coho Clearwater Int USFWS /NPT Big Creek Coho (Hatchery) Deep River Coho (Early-Type S-Grays- Hatchery) Youngs Bay Coho (Bonneville-Sandy- Hatchery) Toutle Coho (Early- Type S Natural) Kalama Coho (Early- Type S Hatchery) Kalama Coho (Late- Type N Natural) Coho Coho Coho Columbia Estuary Columbia Estuary Columbia Estuary 831,000 Coho yearling smolts are transported from the Eagle Creek HFH to the Clearwater Subbasin for release in selected tributaries Iso ODFW 536,000 Coho smolts are released from the Big Creek Hatchery into Big Creek (RM 3.3), a tributary entering the lower Columbia ~RM 27. Iso WDFW 401,000 Coho smolts are released from netpens located on the Deep River at RKm 6.4 and 8.1. Iso ODFW 2,410,000 Yearling coho salmon smolts (Bonneville Stock 14) are directly released from the Youngs Bay Net Pens (RM ) into Youngs Bay (Columbia River Mainstem RM 11). Coho Cowlitz Int WDFW 150,000 Green River Fish Hatchery located approximately 0.81 Rkm above the confluence of the Green and North Fork Toutle. Coho Kalama Iso WDFW 101,000 Fallert Creek RKm 8.2 (of the Kalama River). Coho Kalama Int WDFW 600,000 Kalama Falls RKm

15 Klickitat Hatchery Washougal Hatchery Bonneville Hatchery Klickitat Coho (Lewis- Hatchery) Klickitat Coho (Washougal-Hatchery) Bonneville Coho (Hatchery) Coho Klickitat Iso YN/ WDFW Coho Klickitat Iso WDFW /YN Coho Lower Columbia 1,000,000 Coho are released from the Klickitat Hatchery into the Klickitat River (RKm 70.0). 2,500,000 Yearling coho smolts are transported from the Washougal Hatchery and directly released at RKm 12.0 site and RKm 29.0 site in the Klickitat River. Iso ODFW 1,248,000 Coho smolts are released into Tanner Creek, a direct tributary to the Columbia River miles from the mouth of the Columbia River. Sandy Hatchery# Sandy Coho (Hatchery) Coho Sandy Iso ODFW 700,000 Coho smolts are released from the Sandy Hatchery into Cedar Creek (RM 0.25), tributary to the Sandy River. Bonneville/Oxbow/ Cascade Hatcheries Washougal Hatchery Eagle Creek National Fish Hatchery* Prosser Hatchery Little White Salmon/Willard National Fish Hatchery Complex IDFG Sawtooth Hatchery (adult hold, incub, rear) Big Creek Hatchery Big Creek Hatchery Umatilla Coho (Bonneville-Cascade- Oxbow-Hatchery) Washougal Coho (Hatchery) Clackamas-Eagle Creek Coho (Hatchery) Yakima Coho (Hatchery) Upper Yakima-Naches Coho Coho Umatilla Iso ODFW/ CTUIR 1,000,000 Coho yearling smolts are released from the CTUIR Pendleton Acclimation Facility into the Umatilla RM 56. Coho Washougal Iso WDFW 151,000 Washougal Hatchery into Washougal RKm Coho Willamette Iso USFWS 349,000 Yearling smolts are released from the Eagle Creek NFH into the Clackmas River (RKm 16); Coho Yakima Iso YN 669,000 Coho are transferred in to two sites (Lost Creek RM 39 and Stiles RM 9.0) of the Naches River and two sites in the Upper Yakima River (RM 160 and RM 180) for acclimation and release. Coho Yakima Int YN/ USFWS Redfish Lake Sockeye Sockeye Salmon Int IDFG/ NOAA Big Creek Winter Steelhead (Hatchery) Gnat Creek Winter Steelhead (Hatchery) Winter Steelhead Winter Steelhead 300,000 Coho are transferred in Mid-March to two sites (Lost Creek RM 39 and Stiles RM 9.0) of the Naches River and two sites in the Upper Yakima River (Rm 160 and Rm 180). 150,000 Production of this program is distributed as egg outplants, fingerlings, yearling smolts, and adults into Pettit, Alturas and Redfish Lakes in the Stanley Basin. Big Creek Iso ODFW 101,000 Steelhead smolts are released from the Big Creek Hatchery into Big Creek (RM 3). Gnat Creek Iso ODFW 40,000 Steelhead smolts are released from the Gnat Creek Hatchery into Gnat Creek (RM 2.25). 3

16 Big Creek Hatchery Ringold Springs Beaver Creek Hatchery Skamania Hatchery Skamania Hatchery Beaver Creek Hatchery Beaver Creek Hatchery Grays River Hatchery Fallert Creek Hatchery Fallert Creek Hatchery Fallert Creek Hatchery Fallert Creek Hatchery Youngs Bay Tribs Winter Steelhead (Hatchery) Middle Columbia Mainstem_Ringold Summer Steelhead (Wells Hatchery) Coweeman Winter Steelhead (Early Elochoman- Hatchery) NF Toutle Summer Steelhead (Hatchery) SF Toutle Summer Steelhead (Hatchery) Elochoman Summer Steelhead (Merwin- Hatchery Elochoman Winter Steelhead (Early- Hatchery) Grays Winter Steelhead (Early-Elochoman- Hatchery) Kalama Summer Steelhead Kalama Summer Steelhead (Skamania- Hatchery) Kalama Winter Steelhead (Early- Hatchery Kalama Winter Steelhead (Late) Winter Steelhead Summer Steelhead Winter Steelhead Summer Steelhead Summer Steelhead Summer Steelhead Winter Steelhead Winter Steelhead Summer Steelhead Summer Steelhead Winter Steelhead Winter Steelhead Young Bay Tribs Mid-Columbia Mainstem Iso ODFW 60,000 Steelhead smolts are released from the Klaskanine Hatchery into NF Klaskanine River (RM 2). Iso WDFW 180,000 Summer steelhead yearling smolts are released from a 5.0-acre rearing pond to an outlet that enters Spring Creek, which flows into the Columbia River (RKm 567). Coweeman Iso WDFW 10,000 Yearling steelhead are transfer from the Beaver Cr Hatchery to the Lower Columbia River Fly Fishers Acclimation Pond, an off-stream site to the Coweeman RKm Toutle Iso WDFW 25,000 Off-stream release from WDFW Toutle Hatchery into the Green River (Tributary to N.F. Toutle River/Cowlitz RKm Toutle Iso WDFW 24,700 Yearling fish are transfer from the Toutle Hatchery (located on the Green River, tributary to N.F. Toutle) to the Cowlitz Game & Anglers Acclimation Satellite Pond, located on the S.F. Toutle RKm Elochoman Iso WDFW 31,000 Steelhead smolts are released from the Beaver Cr Hatchery Elochoman Iso WDFW 91,000 Steelhead smolts are released from the Beaver Cr Hatchery Grays Iso WDFW 40,000 Steelhead smolts are released from three raceways of the Grays River Hatchery into the West Fork of the Grays River (RKm 3.2). Kalama Int WDFW 31,000 Gobar Pond (Gobar RKm 4.8 (of Kalama River) Kalama Iso WDFW 31,000 Fallert Creek RKm 8.2 (of Kalama River). Kalama Iso WDFW 46,000 Fallert Creek RKm 8.2 (of Kalama River). Kalama Int WDFW 45,000 Gobar Pond (Gobar RKm 4.8 (of the Kalama River) 4

17 Skamania Hatchery Skamania Hatchery Skamania Hatchery Skamania Hatchery South Santiam Hatchery Sandy Hatchery# Skamania Hatchery Skamania Hatchery Skamania Hatchery Skamania Hatchery Eagle Creek National Fish Hatchery* Klickitat Summer Steelhead (Skamania- Hatchery EF Lewis Summer Steelhead (Skamania- Hatchery EF Lewis Winter Steelhead (Skamania- Hatchery) Salmon Creek Winter Steelhead (Skamania- Hatchery) Sandy Summer Steelhead (South Santiam-Hatchery) Sandy Winter Steelhead (Late) Washougal Summer Steelhead (Skamania- Hatchery) Washougal Winter Steelhead (Early- Skamania-Hatchery) White Salmon Summer Steelhead (Skamania- Hatchery) White Salmon Winter Steelhead (Skamania- Hatchery) Clackamas-Eagle Creek Winter Steelhead (Early- Hatchery) Summer Steelhead Summer Steelhead Winter Steelhead Winter Steelhead Summer Steelhead Winter Steelhead Summer Steelhead Winter Steelhead Summer Steelhead Winter Steelhead Winter Steelhead Klickitat Iso WDFW 101,000 Yearling steelhead smolts are transfer from the Skamania Hatchery and directly released into the Klickitat River at multiple locations. Lewis Iso WDFW 15,000 Direct release into the East Fork Lewis RKm 10.2 and RKm 14.4 Lewis Iso WDFW 60,000 Direct releases into the East Fork Lewis RKm 10.2 and RKm Washougal Iso WDFW 20,000 Steelhead smolts are released from Klineline Pond into Salmon Creek (RKm 8.1). Sandy Iso ODFW 160,000 Yearling steelhead smolts are released from the Sandy Hatchery into Cedar Creek (RM 0.25), tributary to the Sandy River. Sandy Int ODFW 160,000 Yearling winter steelhead smolts are released from the Sandy River into Cedar Creek (RM 0.25), tributary to the Sandy River. Washougal Iso WDFW 60,000 Steelhead smolts are released into the N.F. Washougal River (On-Station RKm 2.4) and into the mainstem Washogual River (transported RKm Washougal Iso WDFW 59,000 Steelhead are released from the Skamania Hatchery into the N.F. Washougal River (RKm 2.4) and trucked and direct release into the main Washougal River RKm 3.2). White Salmon Iso WDFW 24,000 Yearling steelhead smolts are transfer from the Skamania Hatchery and directly released into the White Salmon RKm 2.4. White Salmon Iso WDFW 20,000 Yearling steelhead smolts are transfer from the Skamania Hatchery and directly released into the White Salmon River. Willamette Iso USFWS 151,000 Yearling steelhead smolts are released from the Eagle Creek NFH into the Clackamas River (RKm 16). * Hatchery programs addressed in the Endangered Species Act Section 7 Consultation Biological Opinion on USFW Artificial Propagation Programs in the Lower Columbia and Middle Columbia River (2007) # Hatchery programs addressed in the Endangered Species Act Section 7(a)(2) Biological Opinion for Sandy River Spring Chinook Salmon, Coho Salmon, Winter Steelhead, and Summer Steelhead (2014) 5

18 APPENDIX B

19 1 Effects of Hatchery Programs on Salmon and Steelhead Populations: Reference Document for NMFS ESA Hatchery Consultations NMFS Northwest Regional Office Salmon Management Division March 7, 2011 Introduction This document describes the various effects of hatchery programs on salmon and steelhead populations, and summarizes pertinent scientific literature and other documents addressing them. It is intended to be a reference document both for NMFS staffers conducting effects analysis, and for readers of biological opinions interested in the outcome of the effects analysis. It is a living document. The intent is to update from periodic searches of the scientific literature and from information brought to our attention by reviewers of this document. Additionally, we intend to expand its scope to include details on methodology on system evaluation of hatchery programs as they are developed. Because the ultimate job of the consultation biologist is to determine if approving a hatchery program constitutes jeopardy, hatchery consultations to a large degree deal with risk. Thus this document to a large extent deals with risk. The Biological Opinion on Artificial Propagation in the Columbia River (NMFS 1999a), the Biological Opinion on Effects of the Upper Columbia River Spring Chinook Salmon Supplementation Program and Associated Scientific Research and Monitoring Conducted by the Washington Department of Fish and Wildlife and the U.S. Fish and Wildlife Service (NMFS 2002a), Biological Opinion on Artificial Propagation in the Hood Canal and Eastern Strait of Juan de Fuca Regions of Washington State (NMFS 2002b), and the Biological Opinion on Artificial Propagation of non-listed species in the Upper Columbia River region of Washington State (NMFS 2003), identify multiple general types of potential adverse effects of hatchery operations and production on population viability. NMFS acknowledges that in evaluating hatchery actions that benefits as well as risks need to be considered (NMFS 2008), and that the discussion of hatchery benefits in the past has been inadequate. Therefore as recommended in NMFS (2008), this document will also include discussion of benefits. A benefits section does not appear in this version, but is currently under development and will appear in subsequent versions. In this document, we have revised that basic list of 11 impact/risk categories that was used in earlier documents, reorganizing the risks into six major categories: 1) Facility effects 2) Fish removal 3) Genetics 4) Ecological interactions NMFS028184

20 2 5) Harvest 6) Monitoring and evaluation. Most of these elements include subcategories, for a total of 17. All the previously existing impacts/risks are included in the new system, and there are some new subcategories. Specifically, facility risk now includes a structures subcategory, and monitoring includes subcategories on methodology, adequacy, and adaptive management. Risks/Impacts 1. Facility effects- Risks/impacts arising from the physical existence and basic operation of the hatchery, including specific fish culture impacts. There are three subcategories: general facility failure, water intake, effluent, and structures. A. General facility failure- Risks/impacts to fish in hatchery and in the wild as a result of electrical failure, flooding, fire, etc. This risk is of particular concern when facilities rear listed species, but must be addressed to ensure meeting program goals and objectives. Factors such as flow reductions, flooding and poor fish culture practices may all cause hatchery facility failure or the catastrophic loss of fish under propagation. The following measures are considered important in reducing the risk of catastrophic loss resulting from propagation facility failures: Minimizing the time adult fish are held in traps. Minimizing hatchery facility failure through on-site residence by hatchery personnel to allow rapid response to power or facility failures. Using low pressure/low water level alarms for water supplies to notify personnel of water emergencies. Installing back-up generators to respond to power loss. Training all hatchery personnel in standard fish propagation and fish health maintenance methods. B. Water intake- Risks/impacts to environment from water withdrawal and to fish in stream from impingement on intake screens. Water withdrawals for hatcheries within spawning and rearing areas can diminish stream flow, impeding migration and affecting the spawning behavior of listed fish. Water withdrawals may also affect other stream-dwelling organisms that serve as food for juvenile salmonids by reducing habitat and through displacement, and physical injury. Hatchery intakes must be screened to prevent fish injury from impingement or permanent removal from streams. To prevent these outcomes, water rights issued for regional hatcheries are conditioned to prevent salmon migration, rearing, or spawning areas from becoming de-watered. Hatcheries can also be designed to be non-consumptive. That is, water used in the facility can be returned near the point where it was withdrawn to minimize effects on naturally produced fish and other aquatic fauna. The risks associated with water withdrawals can generally be minimized by complying with water right permits and meeting NMFS screening criteria (NMFS NMFS028185

21 3 1995a; NMFS 1996; NMFS 2004). These screening criteria for water withdrawal devices set forth conservative standards that help minimize the risk of harming naturally produced salmonids and other aquatic fauna. These risks can also be reduced through the use of well water sources for the operation of all or portion of the facility production. C. Effluent discharge- Risks/impacts to fish in streams environment from water quality changes caused by effluent discharges. Effluent discharges can change water temperature, ph, suspended solids, ammonia, organic nitrogen, total phosphorus, and chemical oxygen demand in the receiving stream s mixing zone (Kendra 1991). It is usually not known how a hatchery s effluent affects listed salmonids and other stream-dwelling organisms. The level of impact depends on the amount of discharge and the flow volume of the receiving stream. Any adverse impacts probably occur at the immediate point of discharge, because effluent dilutes rapidly. The Clean Water Act requires hatcheries (i.e. aquatic animal production facilities ) with annual production greater than 20,000 lbs to obtain a National Pollutant Discharge Elimination System (NPDES) permit in order to discharge hatchery effluent to surface waters. These permits are intended to protect aquatic life and public health and ensure that every facility treats its wastewater. The impacts from the releases are analyzed, and the permit sets site-specific discharge limits and monitoring and reporting requirements for the permits and is subject to enforcement actions (EPA 1999). In addition, hatcheries in the Columbia River Basin operate under the policies and guidelines developed by the Integrated Hatchery Operations Team (IHOT 1995) to reduce hatchery impacts on listed fish. Impacts on listed salmon and steelhead are effectively minimized by having the program facilities maintain NPDES permits for discharge of hatchery effluent, and by meeting IHOT guidelines. D. Structures- Risks/impacts to physical stream environment from physical existence of hatchery structures and fish movement blockages caused by structures. 2. Fish removal- Risks/impacts to the target population and non target population caused by removal of fish for culture, usually adults for broodstock but can be juveniles or eggs. Broodstock collection can affect listed salmonids through the method of collection and by the removal of adults from the spawning population. A. Collection- Injury and death to target and nontarget populations caused by collection of fish for the hatchery program (usually but not always adults). There are a number of methods for collecting salmonid broodstock: taking volunteers returning to the hatchery, using a weir or a fish ladder-trap combination associated with a barrier, such as a dam. These devices are employed to effectively block upstream migration and force returning adult fish to enter a trap and holding area. Trapped fish are counted and either retained for use in the hatchery or released to spawn naturally. The physical presence of a weir or trap can affect salmonids by: Delaying upstream migration; NMFS028186

22 4 Causing the fish to reject the weir or fishway structure, thus inducing spawning downstream of the trap (displaced spawning); Contributing to fallback of fish that have passed above the weir; and Injuring or killing fish when they attempt to jump the barrier (Hevlin and Rainey 1993, Spence et al. 1996). Effect the spatial distribution of juvenile salmon and steelhead seeking preferred habitats. Impacts associated with operating a weir or trap include: Physically harming the fish during their capture and retention whether in the fish holding area within a weir or trap, or by the snagging, netting or seining methods used for certain programs; Harming fish by holding them for long durations; Physically harming fish during handling; and Increasing their susceptibility to displacement downstream and predation, during the recovery period. The proper design and operation of the weirs and traps can reduce many of their potential negative impacts (see Hevlin and Rainey 1993; NMFS 2004). The installation and operation of weirs and traps are very dependent on water conditions at the trap site. High flows can delay the installation of a weir or make a trap inoperable. A weir or trap is usually operated in one of two modes. Continuously where up to 100 percent of the run is collected and those fish not needed for broodstock are released upstream to spawn naturally, or periodically where the weir is operated for a number of days each week to collect broodstock and otherwise left opened to provide fish unimpeded passage for the rest of the week. The mode of operation is established during the development of site-based broodstock collection protocols and can be adjusted based on in-season escapement estimates and environmental factors. The potential impacts of weir rejection, fallback and injury from the operation of a weir or trap can be minimized by allowing unimpeded passage for a period each week. Trained hatchery personnel can reduce the impacts of weir or trap operation, by removing debris, preventing poaching and ensuring safe and proper facility operation. Delay and handling stress may also be reduced by holding fish for the shortest time possible, less than 24 hours and any fish not needed for broodstock should quickly be allowed to recover from handling and be immediately released upstream to spawn naturally (NMFS 2004). However, it may be necessary to hold fish longer at the beginning and the end of the trapping season when the adult numbers are low. Beach seines, hook and line, gillnets and snorkeling are other methods used to collect adult broodstock for artificial production programs. All these methods can adversely affect listed fish through injury, delaying their migration, changing their holding and spawning behavior, and increasing their susceptibility to predation and poaching. Some artificial production programs collect juveniles for their source of broodstock. Programs can collect developing eggs or fry by NMFS028187