403 SE Caruthers St.

#101
Portland, OR 97214
503.223.6418

March 30, 2020

Certified Mail
Wilbur Ross, Secretary
Department of Commerce
1401 Constitution Ave., NW
Washington, D.C. 20240
Oregon State Marine Board
Larry Warren, Individually and in his
Official Capacity as Director
P.O. Box 14145
Salem, Oregon 97309
Oregon Department of State Lands
Vicky Walker,
Individually and in her Official
Capacity as Director
775 Summer Street, NE, Suite 100
Salem, Oregon 97301-1279
Oregon Environmental Quality
Commission, Kathleen George
(Chair), Sam Baraso, Greg Addington,
Molly Kile, Wade Mosby
700 NE Multnomah Street, # 600
Portland, Oregon 97232-4100
National Oceanic and Atmospheric Administration
National Marine Fisheries Service
1315 East-West Highway, 14th Floor
Silver Spring, MD 20910
Oregon State Marine Board
Val Early, Laura Jackson, Craig Withee,
Vince Castronovo, Colleen Moran
Individually and in their Official Capacities as
Members of the Oregon State Marine Board
P.O. Box 14145
Salem, Oregon 97309
Oregon State Land Board
Kate Brown (Governor and Board Chair), Bev Clarno
(Secretary of State), and Tobias Read (State
Treasurer),
Individually and in their Official Capacities as
Members of the Oregon State Land Board
900 Court Street, NE # 254
Salem, Oregon 97301-0722
Oregon Department of Environmental Quality
Richard Whitman, Director
Individually and in his Official Capacity as Director
700 NE Multnomah Street, # 600
Portland, Oregon 97232-4100

Re: Amended Notice of Intent to Sue for Violations of the Endangered Species Act

Dear Sirs and Madams:

On behalf of the nonprofit 501(c)(3) organization Willamette Riverkeeper, this letter is to

provide you with notice pursuant to 16 U.S.C. § 1540(g) of the Endangered Species Act (the
“ESA”) that Willamette Riverkeeper intends to file a citizen lawsuit against you1 (the “State

1This letter serves as notice to the Oregon State Marine Board and the Director and Members of the Oregon State
Marine Board, individually and in their official capacities (collectively the “OSMB”), to the State Land Board,
Department of State Lands, and its Director Vicky Walker in her individual and official capacities (collectively the
“DSL”), and the Oregon Environmental Quality Commission, Department of Environmental Quality and its Director
Richard Whitman in his individual and official capacities (collectively “DEQ”) (collectively the OSMB, Director
Officials” or “you”) in federal district court in the District of Oregon upon the expiration of sixty
(60) days for your acts described herein in authorizing the operation of boats and other watercraft
(including but not limited to personal water craft), and other acts and omissions, that foreseeably
cause unnatural wakes and waves that cause take of members of the threatened Upper Willamette
River Chinook, Upper Willamette River Steelhead, Lower Columbia River Chinook, Lower
Columbia River Steelhead, and Lower Columbia River Coho species in the Willamette River
Basin (collectively referred to herein as “Salmonids” of “Salmonid species” unless otherwise
specified), and specifically (but not exclusively) in the near-shore, shallow areas where rearing
fry and juvenile Salmonids are present, and in colder-water refugia. These authorizations, acts,
and omissions also relate to watercraft that engage in artificial wave river surfing activities.2

The lawsuit will allege that since at least February 12, 2014, the State Officials have
authorized, allowed, and/or caused the operation of boats and other watercraft for artificial wave
river surfing in Willamette River Basin waters that are federally-designated critical habitat for
Salmonids, causing take of members of the Salmonid species. The State Officials’
authorizations, actions and omissions deepen the jeopardies federally listed species already
experience. The State’s authorization and actions related to the operation of boats and other
watercraft that foreseeably create, or are specifically intended to create, unnatural waves and
wakes, including for artificial wave river surfing, are the proximate cause of ESA Section 9
“take” of members of the Salmonid species. The State’s omissions related to the operation of
boats and other watercraft foreseeably cause unnatural wakes and waves, allow for submersible
and submerged lands to be negatively impacted, and allow for water turbidity, sedimentation,
and temperature changes to occur from boats and watercraft designed for use or used for
artificial wave river surfing. Through statutory, regulatory and rule-making, and permitting and
licensing authorities, and through program administration, the State Officials have the authority
to cease authorizing, allowing, and/or causing the conduct that causes ESA Section 9 “take” of
members of the threatened species from unnatural waves and wakes, including for artificial wave
river surfing, yet you have failed to do so.

In fact, the National Marine Fisheries Service (“NMFS”) has already informed you that
NMFS is of the opinion that “we expect that wake sports are likely to have a significant adverse
impact on those listed species and their critical habitat by injuring and killing individual fish …
in ways that injure or kill fish by significantly impairing their essential behavior patterns.” 3 See

and Members of the OSMB, State Land Board, DSL, and the Director of the DSL, the Environmental Quality
Commission, the DEQ and the Director of the DEQ are hereinafter “the State”, “State Officials” or “you”).

2 For purposes of this Amended Notice Letter, the creation of artificial waves and wakes for riding or surfing
typically occurs with a machine such as watercraft, often designed for the specific purpose of riding or surfing the
craft’s artificial waves and wakes. These watercraft may or may not be enhanced to assist in creating artificial waves
or wakes with technology, accessories, equipment, overall hull weight, or ballast. The watercraft is generally
designed and/or operated in a manner to purposefully create large artificial waves or wakes, including plowing deep
troughs behind the watercraft to forcibly create a 3-foot to 5-foot wave or wake in the water. A person or persons
“surf” or “ride” behind the watercraft on the artificial wave or wake. In this Amended Notice Letter, this activity is
referred to as “artificial wave river surfing.”

3NOAA NMFS Letter from Kim W. Kratz, Ph.D., Assistant Regional Administrator, Oregon Washington Coastal
Area Office to Oregon State Marine Board Chairwoman Val Early (Jan. 16, 2020) (“NMFS Opinion Letter”).

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Attachment 1. NMFS’ letter further stated that the OSMB “has paid little attention to the
impacts that wake sports have on aquatic life, including salmon and steelhead species designated
as threatened under the Endangered Species Act (ESA), and their critical habitats. NMFS
encourages OSMB and the RACs to add consideration of ESA protected resources to their list of
concerns regarding wake sports.” Id. at 1. NMFS’s Opinion Letter also provided you with two
pages of scientific literature citations supporting its position. Furthermore, on February 22, 2020,
four Oregon Representatives: Rep. Brad Witt, Chair of the House Committee on Natural
Resources; Rep. Ken Helm, Chair of the House Committee on Water; Rep. Karin Power, Chair
of the House Committee on Energy & Environment; and Rep. Courtney Neron, House District
26, wrote to Governor Kate Brown, informing the Governor that “[u]nfortunately the OSMB has
ignored” the legislative intent of two recent bills (House Bill 2351 and House Bill 2352), as well
as NMFS’ recommendation, and that of the Newberg Rule Advisory Committee “to consider the
ecological impacts of wake sports on resources protected under the Endangered Species Act.” 4
Despite these warnings, the State Officials’ authorizations, actions, and omissions continue to
directly and indirectly authorize, allow, and/or cause members of the threatened Salmonid
species to be killed, injured, harmed, harassed, wounded, and otherwise subject to “take” under
the ESA, accompanying regulations and NMFS guidance. The State Officials are thus
authorizing, allowing, and/or causing take of individual fish, and authorizing, allowing and/or
causing take that adversely affects the Salmonid species at a population level due to direct and
indirect harm to individual fish and habitat modification across multiple areas of the Willamette
River Basin. Accordingly, the State Officials have violated, are violating, and will continue to
violate Section 9 of the ESA.5

Willamette Riverkeeper, its members, and supporters, have an interest in the State
Officials complying with the ESA to cease and avoid take of and to protect threatened species
that rely upon the Willamette River Basin and its critical habitat. Without enforcement of the
ESA by Willamette Riverkeeper, the State Officials’ authorization of conduct that causes take
and other acts and omissions will continue to occur, the State Officials’ delay in preventing take
will perpetuate their own lack of accountability, and the conduct authorized by the State Officials

NMFS’s Opinion Letter also included two pages of literature references supporting its statements and conclusion.
(Attachment 1).

4 See Letter from Representatives Witt, Helm, Power, and Neron to Governor Brown (Feb. 22, 2020)
(https://www scribd com/document/452090484/OregonRepsLettertoGovernorBrown2020REHB2351).

5On January 22, 2020, the OSMB convened a public meeting; no discussion of Statewide Planning Goal 15
objectives occurred during that meeting. Goal 15 relates specifically to the Willamette River Greenway and requires
plans and implementation measures shall protect “[s]ignificant fish and wildlife habitats” and “[t]he natural
vegetative fringe along the River shall be enhanced and protected to the maximum extent practicable.” OAR 660-
015-0005(C)(3)(d), (g). Shortly after the public meeting, the OSMB announced it will amend its rules and may
approve changes in April 2020, but any rules would likely not take effect until 2021 and current rules will remain in
effect for summer 2020; any changes that are made to the rules won’t be changed for “some period of time.” See C.
Buchanan, “Oregon State Marine Board endorses tweaks to wakesurfing zones.” Wilsonville Spokesman. (Jan. 28,
2020) (https://pamplinmedia com/wsp/134-news/449645-366095-oregon-state-marine-board-endorses-tweaks-to-
wakesurfing-zones). Additionally, rules currently under OSMB consideration would allow “slow no wake” zones
(which Willamette Riverkeeper will allege are not followed or enforced), and continue to allow artificial wave river
surfing in cold water refugia areas. The proposed rulemakings ignore artificial wave river surfing’s ecological
impacts.

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will continue to foreseeably cause “take” of threatened Salmonids in violation of the ESA.
Despite Willamette Riverkeeper, and its members and supporters participating in numerous
public meetings, submitting public testimony and public comments, participating in Resource
Advisory Committees, communicating with agency staff and other members of the Oregon
government including writing to the Oregon Department of Environmental Quality, petitioning
the Department of State Lands for agency action, and asking for Oregon Department of Justice
assistance, the authorization, acts, and omissions that cause take have and will continue. OSMB
interim measures and proposals such as “no wake” or “slow no wake” zones are made without
consideration for threatened species and the likelihood of take thereof, the Willamette River
Basin’s designation as critical habitat, the nearshore function of shallower areas as Salmonid
nurseries, or the likelihood that wakes and waves will create mixing zones that heat up colder-
water refugia; nor are these measures being followed or enforced. 6 Willamette Riverkeeper
intends to seek appropriate declaratory and equitable relief, civil penalties, and other relief,
including attorneys’ fees and costs.

STATE AGENCIES AND OFFICIALS

IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES & AGENCY ACTIONS
ALLOWING AND/OR CAUSING TAKE OF THREATENED SPECIES

The ESA applies to any “person,” including “any officer, employee, [or] agent, department,
or instrumentality … of any State.” 16 U.S.C. § 1532(13). The OSMB, State Land Board, DSL,
the Environmental Quality Commission, the DEQ, their Directors, Board Members, and these
persons in their official and individual capacities, are all “person[s]” within the meaning of the
statute. Persons violating the ESA risk facing civil and criminal penalties. 16 U.S.C. § 1540(a)-
(b). Accordingly, the ESA citizen suit provision authorizes suits against any person, including
any governmental instrumentality or agency to the extent permitted by the Eleventh Amendment,
to enforce the prohibition on take. 16 U.S.C. § 1540(g)(1); see Ex Parte Young, 209 U.S. 123,
159-60 (1908) (authorizing lawsuits for prospective relief against state officials acting in
violation of federal law); Cascadia Wildlands v. Kitzhaber, 911 F. Supp. 2d 1075, 1080–81,
1085–86 (D. Or. 2012) (some agency officials subject to the ESA).

A. Oregon State Marine Board, Director, and Members in their official and individual
capacities.

The OSMB’s duties and mission include adopting boating regulations to promote safety,
reduce conflict, preserve traditional boat uses and protect the environment. 7 The OSMB has the
power to “[m]ake all rules necessary” related to small watercraft. ORS 830.110(1). In particular,
the OSMB runs, operates, authorizes, approves, manages, renews, and implements Oregon’s boat
licensing, permitting, and registration which consists of watercraft owners submitting title
records to the OSMB and applying for an OSMB-issued “hull identification number” (see ORS

6 See, e.g., Video # 4 “Boats not following distance requirements (First example of the required distance)” (Aug. 21,
2019) (repeated multiple violations of “no wake” zones in a single 4 minute video)
(https://www.youtube.com/watch?v=oSQ_Xu6eGfA).

7See “Oregon State Marine Board Present Duties” (https://sos.oregon.gov/blue-book/Pages/state/executive/marine-

board aspx) and OSMB Home Page (https://www oregon gov/osmb/Pages/index aspx).

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830.110(2)); Oregon’s towed watersports safety education program (see ORS 651 § 2); and
Oregon’s Safe Boating Education Course which third-party entities administer with the OSMB’s
approval.8 The OSMB also has specific authority to regulate to protect fish and wildlife habitat:

The board may make special regulations relating to the operation of boats on the
Willamette River within the Willamette River Greenway,9 including the establishment of
designated speeds or other methods to manage boat wake energy, as may be needed for
the protection of the shoreline, public and private property, fish and wildlife habitat and
vegetation. When adopting regulations under this subsection the board shall take into
consideration the statewide land use planning goals and guidelines adopted by the Land
Conservation and Development Commission to protect, conserve and maintain the
natural, scenic, historical, agricultural, economic and recreational qualities of lands along
the Willamette River Greenway. ORS 830.175(4)(a) (emphasis added).

Additionally, the NMFS advised the OSMB that “[b]efore the OSMB approves rules that
authorize wake sports in the Willamette River that are likely to affect ESA-listed species or their
critical habitats, it should ensure that it or the applicant will comply with the ESA either by
avoiding the kinds of harms [described therein], or by showing that any harm that will occur is
subject to an exception to exemption under the ESA.” Attachment 1 at 2. The OSMB’s rule-
making on wake sports are also among the OSMB’s acts which violate Section 9 of the ESA.

The OSMB actively runs, operates, authorizes, approves, manages, renews, implements,
and registers Oregon watercraft by requiring title records and issuing hull identification numbers,
including watercraft that are used in the Willamette River Basin for artificial wave river surfing.
The OSMB also actively runs, operates, authorizes, approves, manages, renews, and implements
the towed watersports education program, including developing courses and practices, and
issuing education cards, endorsements, and decals for boats or other watercraft designed for use
or used for artificial wave river surfing certifying the owner/operator completed the towed
watersports education program. The OSMB also actively runs, operates, authorizes, approves,
manages, renews, and implements the Safe Boating Education program and qualifying courses,
including the issuance of Boater Education Cards, for all Oregon boaters. This includes boaters
using watercraft in the Willamette River Basin that cause unnatural wakes and waves, including
the use of such wakes and waves for artificial wave river surfing. Additionally, the OSMB also
runs, authorizes, approves, and manages the Willamette Greenway rulemaking in such a manner
as to delay and avoid accountability. These authorizations, omissions, other acts, and

8State Officials are liable for any actions that they authorize others to undertake which cause take of ESA-listed
species. Strahan v. Coxe, 127 F.3d 155, 163 (1st Cir. 1997) (holding state liable for take of endangered right whales
by virtue of its licensing of private commercial fishing with equipment that caused whale entanglements and
deaths); Loggerhead Turtle v. Cty. Council of Volusia Cty., 148 F.3d 1231, 1251 (11th Cir. 1998), cert. denied, 526
U.S. 1081 (1999); Defenders of Wildlife v. Administrator, EPA, 882 F.2d 1294 (8th Cir. 1989); see also Cascadia
Wildlands, 911 F. Supp. 2d at 1075 (holding that state officials responsible for authorizing third-party activities that
caused take are liable for take); Pac. Rivers Council v. Brown, No. CV 02–243–BR, 2002 WL 32356431, at *12 (D.
Or. Dec. 23, 2002) (holding that Oregon State Forester was liable under ESA for approving logging operations
which caused take of salmon).

9Goal 15 relates specifically to the Willamette River Greenway. Goal 15 requires plans and implementation
measures shall protect “[s]ignificant fish and wildlife habitats” and “[t]he natural vegetative fringe along the River
shall be enhanced and protected to the maximum extent practicable.” OAR 660-015-0005(C)(3)(d), (g).

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management by the OSMB of conduct that foreseeably creates wakes and waves, including
authorizing, allowing, and/or causing artificial wave river surfing, causes on-going impacts to
impact Salmonids’ critical habitat in the Willamette River Basin and causes the “take” by harm,
harassment, killing, or wounding of members of the threatened Salmonid species. These
authorizations, acts, and management will continue in violation of the ESA without court
intervention.

The OSMB’s Director is Larry Warren, noticed herein both in his official capacity as
Director, and his individual capacity. The OSMB’s appointed Members, Val Early (Chair), Laura
Jackson, Craig Withee, Vince Castronovo, and Colleen Moran are also noticed herein in their
official and individual capacities. The OSMB Director and Members are responsible for the
authorizations, acts, omissions, and management described herein.

B. Oregon State Land Board, the Department of State Lands and its Director in her
official and individual capacities.

The State Land Board is made up of the Governor (Board Chair), the Secretary of State, and
the State Treasurer. ORS 273.031. The State Land Board “shall manage lands under its
jurisdiction with the object of obtaining the greatest benefit for the people of this state, consistent
with the conservation of this resource under sound techniques of land management.” Or. Const.
Art. VIII § 5(2).

The Department of State Lands (“DSL”) is the administrative arm of Oregon’s State Land
Board. The DSL is created by, and consists of, the Director of the DSL and all officers and
employees of the department acting under the State Land Board. ORS 273.041, 273.161. The
State Land Board and DSL manage the State land, protect waterways and wetlands, and act as
trustee for unclaimed property and escheated estates. Subject to State Land Board policies and
State Land Board review, the DSL Director is responsible for the administration of laws
conferring powers or imposing duties upon the DSL, and the DSL Director has full authority
with respect to the retention or disposition of all lands subject to the jurisdiction of the
department, including but not limited to the management, sale, leasing, exchange or other
conveyance of such lands. ORS 273.171.

As to the Willamette River Basin, DSL manages Oregon’s navigable waterways for public
trust uses of recreation, fishing, navigation, and commerce. DSL’s core activities involve (1)
removal-fill permitting, (2) managing mitigation banking and in-lieu-fee programs, (3) aquatic
resource planning, and (4) waterway leasing. DSL’s jurisdiction in Oregon’s navigable waters
extends from the ordinary high water line to the ordinary low water line (ORS 274.005(3), (4)),
and submerged (lands lying below the line of ordinary low water) and submersible lands (lands
lying between the line of ordinary high water and the line of ordinary low water). See ORS
274.005(7) (8). The DSL is the owner and has jurisdiction over submersible and submerged
lands of all navigable streams and lakes in Oregon. ORS 274.025(1); ORS 274.402. Under its
regulations, the DSL may restrict public recreational use of lands it manages. See OAR 141-088-
0000(1). This authority includes restrictions where action is necessary to prevent loss of, or
damage, to natural resources; damage to the environment; or fulfill an objective of an area
management plan developed by DSL. DSL has adopted the 1992 Lower Willamette Management

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Plan (“LWMP”). See OAR 141-0080-0105. The LWMP includes the management goal to
“actively enhance the planning area’s water quality, fish and wildlife habitat values, aesthetic
appearance.” LWMP at A-1. Specifically, the LWMP recognizes as its first point of focus the
shallow waters of the Willamette River and the need for “protecting and conserving shallow
water (less than 15’ deep …) for its high value for fish food production and aquatic habitat for
warm water fish, yearling chinook salmon, and juvenile steelhead. Shallow water habitat is a
term used to describe shoreline areas that are often more biologically productive than other
area.” LWMP at A-1.

The DSL actively runs, operates, authorizes, approves, and manages actions relating to
Oregon’s public trust lands and waterways, including lands and waterways used by watercraft in
the Willamette River Basin that foreseeably create waves and wakes for artificial wave river
surfing. The DSL actively runs, operates, authorizes, approves, manages actions relating to
Oregon’s public trust aquatic resource planning actions, including lands and waterways used by
boats or other watercraft in the Willamette River Basin that foreseeably create waves and wakes
for artificial wave river surfing. The DSL actively runs, operates, authorizes, approves, manages
actions relating to Oregon’s submersible and submerged lands. The DSL can issue closure and
restriction orders on public recreational use of state-owned or state-managed resources. OAR
141-088-0004. In response to Willamette Riverkeeper’s October 29, 2019 Petition to close the
Willamette River Basin to artificial wave river surfing, on December 19, 2019 the DSL acted by
deferring to the OSMB.10 Furthermore, the DSL’s ability and failure to take rule-making action
on artificial wave river surfing are also among the DSL’s acts which violate Section 9 of the
ESA. See ORS 273.045. As discussed herein, artificial wave river surfing, which the DSL allows
and/or causes to occur through the above acts, “takes” threatened Salmonids by harming and/or
harassing protected fish in their Willamette River Basin critical habitat.

The DSL’s Director is Vicky Walker, noticed herein both in her official capacity as Director,
and her individual capacity. The State Land Board members are Governor Kate Brown,
Secretary of State Bev Clarno, and State Treasurer Tobias Read, noticed herein in their official
and individual capacities. The DSL Director and the State Land Board members are responsible
for the authorizations, acts, omissions, and management described herein.

C. The Oregon Environmental Quality Commission, Department of Environmental

Quality and its Director in his individual and official capacities

The Environmental Quality Commission is made up five members appointed by the

Governor. ORS 468.010. The Environmental Quality Commission’s statutory function is to
establish policies for the operation of the DEQ in a manner consistent with the policies and
purposes of certain statutes relating to water systems, sewage treatment and disposal,
environmental quality, transboundary pollution, and water pollution control. ORS 468.015. The
Environmental Quality Commission is also empowered to adopt rules and standards as it

10Willamette Riverkeeper Petition to DSL (Oct. 29, 2019) (https://www scribd com/document/433471264/Petition-
Re-Artificial-Waves-to-DSL-November-2019) And DSL Response (Dec. 19, 2019)
(https://www scribd com/document/453419244/2019-12-19-Response-dslwillametteRiverkeeperResponse-Final).

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considers necessary and proper in performing the functions vested by law in the commission.
ORS 468.020.

The Oregon Department of Environmental Quality (“DEQ”)’s mission is to “be a leader in

restoring, maintaining and enhancing the quality of Oregon’s air, land and water.” 11 The DEQ
has several mandatory functions, including, for example, that it shall “encourage voluntary
cooperation …in restoring and preserving the quality and purity of the air and waters of the state
in accordance with rules and standards established by the commission” (ORS 468.035(1)(a)), and
it shall “seek enforcement of the air and water pollution laws of the state.” ORS 468.035(1)(j).
Oregon’s public policy is “[t]o provide for the prevention, abatement and control of new or
existing water pollution.” ORS 468B.015(4). Oregon recognizes that water pollution “is harmful
to wildlife, fish and aquatic life…” and the state seeks “[t]o protect, maintain and improve the
quality of the waters of the state … for the propagation of wildlife, fish and aquatic life…”.
ORS § 468B.015(2). The State’s antidegradation policy, OAR 340-041-0004 “guide[s] decisions
that affect water quality to prevent further unnecessary degradation from new or increased point
and nonpoint sources of pollution, and to protect, maintain, and enhance existing surface water
quality to ensure the full protection of all beneficial uses.” Alterations of temperature, turbidity
or silt are “pollutants” under Oregon law. ORS 468B.005(5). The Willamette River has sections,
in which artificial wave river surfing occurs, that are listed as § 303(d) waterways for
sedimentation and temperature. In 2006, Oregon DEQ has established a TMDL for temperature
on the Willamette River and for the Lower Willamette Subbasin.

The DEQ actively runs, operates, authorizes, approves, manages actions relating to Oregon’s
aquatic resources, including pollution originating from the use of watercraft in the Willamette
River that foreseeably create unnatural waves and wakes, including for artificial wave river
surfing. On June 26, 2019, Willamette Riverkeeper wrote to DEQ requesting DEQ action on the
turbidity effects of artificial wave river surfing in the Willamette River. 12 In response, DEQ
stated the agency did not plan to direct enforcement resources towards the issue, that the OSMB
considered turbidity in its own rulemaking processes, and that “[t] Mercury TMDL
implementation efforts will seek to reduce erosion and turbidity in [] effort to decrease mercury
in the Willamette.”13 The EPA Willamette Basin Mercury TMDL and DEQ Final Revised
Willamette Basin Mercury TMDL do not reference turbidity or erosion relative to artificial wave
river surfing, nor do the OSMB rulemakings.

The DEQ’s Director is Richard Whitman, noticed herein in both his official capacity as
Director and his individual capacity. The Environmental Quality Commission members are
Kathleen George (Chair), Sam Baraso, Greg Addington, Molly Kile, and Wade Mosby, noticed
herein in their official and individual capacities. The DEQ Director and the Environmental

11 See Oregon DEQ “About Us” Mission Statement (https://www.oregon.gov/deq/about-us/Pages/default.aspx).

12Letter from Willamette Riverkeeper to OSMB and DEQ (Jun. 26, 2019)
(https://www scribd com/document/453413452/2019-06-26-WRK-to-DEQ-and-SMB-turbidity).

13Letter from DEQ to Willamette Riverkeeper (Aug. 21, 2019)

(https://www.scribd.com/document/453413421/2019-08-21-DEQ-Response-to-WRK-WakeBoats-FINAL-2019-08-
21).

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Quality Commission members are responsible for the authorizations, acts, omissions, and
management described herein.

BACKGROUND

A. The Endangered Species Act

The ESA is “the most comprehensive legislation for the preservation of endangered species
ever enacted by any nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). Its
fundamental purposes are “to provide a means whereby the ecosystems upon which endangered
species and threatened species depend may be conserved [and] to provide a program for the
conservation of such endangered species and threatened species . . . .” 16 U.S.C. § 1531(b). In
enacting the ESA, Congress made a specific finding that fish, wildlife and plants “have been
rendered extinct as a consequence of economic growth and development untempered by
adequate concern and conservation” (16 U.S.C. § 1531(a)(1)), “have been so depleted in
numbers that they are in danger of or threatened with extinction” (16 U.S.C. § 1531(a)(2)), and
“these species of fish, wildlife, and plants are of esthetic, ecological, educational, historical,
recreational, and scientific value to the Nation and its people.” 16 U.S.C. § 1531(a)(3). The
United States Supreme Court noted that “the plain intent of enacting this statute was to halt and
reverse the trend towards species extinction, whatever the cost.” Hill, 437 U.S. at 184.

To achieve these objectives, the ESA directs the Secretary of the Interior and the Secretary of
Commerce to determine which species of plants and animals are “threatened” and “endangered”
and place them on the endangered species list. 16 U.S.C. § 1533. The Secretaries of Interior and
of Commerce (16 U.S.C. § 1532(15)) have delegated their authority under the ESA to the United
States Fish & Wildlife Service (“FWS”) and the NMFS, respectively, to share responsibilities for
administration of terrestrial and aquatic species under ESA. 50 C.F.R. § 402.01(b). NMFS has
jurisdiction over certain aquatic endangered or threatened species, including the threatened
Salmonid species described in this letter. See id. (referring to 50 C.F.R. §§ 222.23(a), 227.4).

An “endangered” species is one “in danger of extinction throughout all or a significant

portion of its range,” and a “threatened” species is “likely to become endangered in the near
future throughout all or a significant portion of its range.” 16 U.S.C. §§ 1532(6), (20). The ESA
defines “species” as including “any subspecies of fish or wildlife or plants, and any distinct
population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”
16 U.S.C. § 1531(16). Once a species is listed, the ESA provides procedural and substantive
protections to ensure not only the species’ continued survival, but also its ultimate recovery.
“Congress has spoken in the plainest words, making it clear that endangered species are to be
accorded the highest priorities.” Hill, 437 U.S. at 155. This includes a recovery plan under 16
U.S.C. § 1539.14

14See Upper Willamette River Conservation and Recovery Plan for Chinook Salmon and Steelhead (ODFW and
NMFS) (Aug. 5, 2011) (“UWR Recovery Plan”); Lower Columbia River Coho Salmon, Lower Columbia Chinook
Salmon, Columbia River Chum Salmon, and Lower Columbia River Steelhead ESA Recovery Plan (NMFS) (June
2013) (“LCR Recovery Plan”).

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 On the Willamette River and its tributaries, Upper Willamette River Chinook Salmon, Upper
Willamette River Steelhead, Lower Columbia River Chinook Salmon, Lower Columbia River
Coho, and Lower Columbia River Steelhead are all listed as “threatened” species. See 50 C.F.R.
§ 17.11(h); 50 C.F.R. § 226.212(e).

Section 9 of the ESA prohibits any “person” from “taking” or causing take of any member of
an endangered species. 16 U.S.C. § 1538(a), 16 U.S.C. § 1540(g)(1)(A) (includes other
government instrumentality or agency to the extent permitted by the Eleventh Amendment). The
term person is defined to include “an individual, corporation, partnership, trust, association, or
any other private entity . . . .” 16 U.S.C. § 1532(13). Under special “4(d)” rules promulgated by
NMFS, this take prohibition also applies to individual fish with an intact adipose fin that are part
of the threatened Salmonid species described in this letter. 16 U.S.C. §§ 1533(d), § 1538(a); 50
C.F.R. §§ 17.31, 223.102(e), 223.203(a). Neither OSMB, DSL, or DEQ has exercised a safe
harbor provision, either by seeking an incidental take permit or by preparing a habitat
conservation plan. 16 U.S.C. § 1539.

The term “take” is defined broadly, and includes to “harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect” or cause another to do so. 16 U.S.C. § 1532(19). NMFS
also includes an “attempt to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect” as a “take.” 50 C.F.R. § 222.102 (emphasis added).

NFMS regulations define “harm” within the definition of “take” to mean “an act which
actually kills or injures fish or wildlife. Such an act may include significant habitat modification
or degradation which actually kills or injures fish or wildlife by significantly impairing essential
behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering.” 50
C.F.R. § 222.102; see also 50 C.F.R. § 17.3 (FWS similar definition of “harm”). Caselaw
demonstrates courts have found a “take” when acts “harm” wildlife, including by causing
significant habitat modification and degradation. See, e.g., Babbitt v. Sweet Home Chapter, 515
U.S. 687 (1995) (indirect injuries to red cockaded woodpeckers and northern spotted owls from
logging constituted harm); Marbled Murrelet, 83 F.3d 1060 (9th Cir. 1996) (marbled murrelets
harmed by logging); Nat’l Wildlife Fed’n v. Burlington N. R.R., 23 F.3d 1508 (9th Cir. 1994)
(grizzly bears killed by train while eating corn from accidental spill was “harm”); Palila v.
Hawaii Dep’t of Land & Natural Res., 852 F.2d 1106 (9th Cir. 1988) (keeping of goats and
sheep for recreational sport hunting harmed endangered birds); Strahan v. Coxe, 127 F.3d 155
(1st Cir. 1997) (state issuance of licenses and permits authorizing gillnet and lobster pot fishing
harmed Northern Right Whales but for Coast Guard’s new Whale Protection Program);
Loggerhead Turtle, 148 F.3d 1231 (11th Cir. 1998) (beach lights harm nesting turtles); Or.
Natural Desert Ass’n v. Tidwell, 716 F. Supp. 2d 982, 1005–06 (D. Or. 2010) (holding federal
agency liable for unlawful take when it authorized livestock grazing that caused take of listed
steelhead by damaging streambanks and causing adverse effects on fish); Bensman v. U.S. Forest
Serv., 984 F. Supp. 1242 (W.D. Mo. 1997) (removal of dead trees used by Indiana bat for habitat
and hibernation may constitute a taking).

NMFS does not separately define “harass” in its regulations, but NMFS has issued an
“Interim Guidance on the Endangered Species Act Term ‘Harass’” Procedural Instruction. See
Conservation of Threatened and Endangered Species 02-110-19 (Dec. 21, 2016). NMFS’s

10
Guidance states the agency “will interpret harass in a manner similar to the USFWS regulatory
definition for non-captive wildlife” as “[c]reate the likelihood of injury to wildlife by annoying it
to such an extent as to significantly disrupt normal behavioral patterns which include, but are not
limited to, breeding, feeding, or sheltering.” Id. at 2. USFWS defines “harass” (as to non-captive
wildlife) as “an intentional or negligent act or omission which creates the likelihood of injury to
wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns
which include, but are not limited to, breeding, feeding, or sheltering.” 50 C.F.R. § 17.3.
Accordingly, NMFS will consider the following four steps in assessing whether an activity is
likely to “harass”:

1. Whether an animal is likely to be exposed to a stressor or disturbance (i.e., an

annoyance);
2. The nature of that exposure in terms of magnitude, frequency, duration, etc. Included in
this may be type and scale as well as considerations of the geographic area of exposure
(e.g. is the annoyance within a biologically important location for the species, such as a
foraging area, spawning/breeding area, or nursery area?);
3. The expected response of the exposed animal to a stressor or disturbance (e.g. startle,
flight, alteration [including abandonment] of important behaviors); and;
4. Whether the nature and duration or intensity of that response is a significant disruption of
those behavior patterns which include, but are not limited to, breeding, feeding, or
sheltering, resting or migrating, as described above in this memorandum.

NMFS Harass Guidance at 3.

NMFS further states that “an analysis that indicates a likelihood of significant disruption in
behavior patterns establishes the ‘likelihood of injury’” and no further analysis of the likelihood
of injury is needed. NMFS Harass Guidance at 2. Where there is a “reasonable connection”
between the annoyance (taking into account the magnitude, duration, frequency, and scope) and
behavioral response (breeding, feeding, sheltering, resting, migrating, etc.) that would be
expected to result in the creation or increased risk of injury, a species will be harassed. Id. As to
the “significant disruption of normal behavioral patterns”, NMFS specifically states that an
actual injury does not need to result or be proven; only that the species’ behavioral response
increases the likelihood of injury.

Similarly, caselaw supports a conclusion that where acts “harass” wildlife, a “take” can be
found. See, e.g., Strahan v. Linnon, 967 F. Supp. 581, 630 (D. Mass. 1997) (noting evidence
suggesting that “harassment occur[ed] when Coast Guard vessels approach[ed] Right whales too
closely”); Sweet Home Chapter, 515 U.S. at 704–705 (regulation of endangered and threatened
species causing economic injury to companies and families depending on forest products a
“take”); Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1064 (9th Cir. 1996) (disruptive and “noisy”
tree harvesting harasses birds); Loggerhead Turtle v. Volusia Co. Council, 896 F.Supp. 1170,
1174–1175 (M.D. Fla. 1995) (artificial lights from beach-driving harasses sea turtles during
nesting); National Wildlife Federation, 23 F.3d 1508 (9th Cir. 1994) (corn spilt along Montana
railroad tracks modified grizzly bear eating habits and resulted in train strikes killing seven
grizzlies would be harassment and a “taking” if spilt corn had not already been removed);
Bensman, 984 F.Supp. 1242 (W.D. Mo. 1997) (salvage logging activities posed possible

11
impermissible harassment to Indiana Bat); Defenders of Wildlife v. Martin, 454 F. Supp. 2d 1085
(E.D. Wash. 2006) (recreational snowmobiling impermissibly harmed and harassed woodland
caribou by displacing them from preferred habitats and increasing risks of predation, which were
“particularly worrisome” considering the caribou’s nutritional intake needs); see also Wishtoyo
Foundation v. United Water Cons. Dist., 2017 WL 6940510, * 19 (C.D. Cal. 2017)
(unpublished) (“[c]ases applying the ‘harassment’ standard involve disruptive human activities);
Cascadia Wildlands v. Kitzhaber, 911 F. Supp. 2d at 1086 (logging operations can cause take by
harassment).

The ESA’s legislative history supports “the broadest possible” reading of the prohibition
against take. Sweet Home Chapter, 515 U.S. at 704–05. Thus, “take” includes direct as well as
indirect harm and need not be purposeful. Id. at 704; see also Nat’l Wildlife Fed’n, 23 F.3d at
1512; Or. Natural Desert Ass’n, 716 F. Supp. 2d at 1005–06. The harassing, harming and other
forms of “take” clearly applies to [both] individual animals, or from take caused by habitat
modification that has adverse effects at a population level. See, e.g. United States v. Nuesca, 945
F.2d 254 (9th Cir. 1991); Coal. for a Sustainable Delta v. John McMamman, 725 F. Supp. 2d
1162, 1170 (E.D. Cal. 2010).

The ESA authorizes private enforcement of the take prohibition through a broad citizen suit
provision. 16 U.S.C. § 1540(g). Citizens may seek to enjoin both present activities that constitute
an ongoing take and future activities that are reasonably likely to result in a take. Nat’l Wildlife
Fed’n, 23 F.3d at 1511. The ESA’s citizen suit provision also provides for the award of costs of
litigation, including reasonable attorneys’ fees and expert witness fees. 16 U.S.C. § 1540(g)(4).

B. Threatened Fish in the Willamette River Basin

The Willamette River Basin covers approximately 12,000 square miles, drawing from the
Willamette River’s headwater streams, heading north to Portland and converging with the
Columbia River north of Portland. The Willamette River itself is 187 miles long, and fed by the
Middle Fork and Coast Fork of the Willamette, the McKenzie, Long Tom, Calapooia, Santiam,
Luckiamute, Yamhill, Pudding, Molalla, Tualatin, and Clackamas Rivers. The Willamette River
is the 13th largest river in the conterminous U.S. in terms of streamflow, and produces more
runoff per square mile than any of the larger rivers. 15

In the Willamette River Basin, Upper Willamette River Chinook Salmon, Upper Willamette
River Steelhead, Lower Columbia River Chinook Salmon, Lower Columbia River Coho, and
Lower Columbia River Steelhead are all listed as “threatened” species under the Endangered
Species Act. 50 C.F.R. § 17.11(h); see also 50 C.F.R. § 223.102(e). The salmon species are listed
as “Evolutionarily Significant Units,” or “ESUs,” while the steelhead species are listed as
“Distinct Population Segments,” or “DPSs.” NMFS maps (Attachment 2) show the 50 C.F.R. §
226.212 designated critical habitat of these threated fish species throughout the entire length of
the Willamette River, and throughout the tributaries, streams, creeks, and waters of the vast

15See U.S. Geological Survey, “Water Quality in the Willamette Basin Oregon 1991-95.” Circular 1161 (1998)
(https://pubs usgs gov/circ/circ1161/circ1161 pdf).

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majority Willamette River Basin. The NMFS regulations (50 C.F.R. § 226.212(a)) and the UWR
Recovery Plan (Fig. 2-4, 2-5) also confirm Salmonid presence.

Historically, chinook salmon were abundant in many western coastal and interior waters, but
overfishing of stock and extensive degradation of riparian and aquatic habitats, have exploited
chinook to a point where populations are not sustainable. 63 Fed. Reg. 11482 at 11498 (Mar. 9,
1998). Chinook salmon have declined in abundance from loss, damage, or change to chinook
salmon’s natural environment, loss of habitat complexity and fragmentation. Id. Sedimentation is
recognized as a primary cause of habitat degradation in the range of west coast chinook salmon.
Id. The Upper Willamette River Conservation and Recovery Plan for Chinook Salmon and
Steelhead noted “[t]here will need to be continued effort to protect existing habitat and repair
degraded habitat to levels that will support viable salmon and steelhead populations.” UWR
Recover Plan at 5-11 (discussing Upper Willamette Mainstem and subbasins). Certain parts of
the Lower Willamette River, including RM 0-24.8, are already on the § 303(d) list for
sedimentation.

Our evidence indicates that at all times of the year, the threatened Salmonids, including their
members with intact adipose fins, exist throughout the Willamette River Basin, and depend on
the river ecosystem for their critical habitat to conduct essential functions of their life cycle. As
Attachment 3 (Oregon DEQ and U.S. EPA Fish Use of the Willamette Basin, Figure 340A)
shows, Oregon DEQ and U.S. EPA have designated much of the Willamette River Basin waters
as rearing and migration habitat for salmon and trout.

Chinook salmon (Oncorhynchus tshawytscha)16 are anadromous and semelparous fish,

living in both fresh and saltwater during their lifetime. Chinook salmon have a relatively
complex life history that includes spawning and juvenile rearing in rivers followed by migrating
to saltwater to feed, grow, and mature before returning to freshwater to spawn. Gravel
composition and quality, water depth, water flow, velocity, and silt load all significantly
influence the suitability of spawning grounds and the survival of developing chinook salmon
eggs. 63 FR at 11483. Stream-type chinook salmon juveniles are much more dependent on
freshwater ecosystems than their ocean-type counterparts because stream-type chinook have
extended residence in freshwaters. 63 FR at 11484. They are vulnerable to many stressors and
threats including blocked access to spawning grounds and habitat degradation caused by dams
and culverts. Chinook salmon live up to 6 years of age, grow to approximate 40 pounds but can
be as big as 120 pounds, and adults are approximately 3 feet long. Habitat degradation and
habitat loss is one of the key threats to the species. Chinook salmon are federally listed as
“threatened” in the Upper Willamette River and the Lower Columbia River since 1999.

Steelhead trout (Oncorhynchus mykiss)17 are a unique species, and individuals develop
differently depending on their environment. All steelhead trout hatch in gravel-bottomed, fast-
flowing, well-oxygenated rivers and streams. Some stay in fresh water all their lives, and are

16NOAA Fisheries Species Directory, Chinook Salmon (https://www.fisheries noaa.gov/species/chinook-salmon-

protected).

17 Id., Steelhead Trout (https://www fisheries noaa gov/species/steelhead-trout).

13
called rainbow trout. Steelhead trout that migrate to the ocean typically grow larger than the ones
that stay in freshwater. They then return to freshwater to spawn. Steelhead trout are vulnerable to
many stressors and threats including blocked access to spawning grounds and habitat degradation
caused by dams and culverts. Steelhead trout live up to 11 years of age, grow up to 55 pounds
and nearly 3 feet (45 inches) long. Habitat degradation and habitat loss is one of the key threats
to the species. Steelhead trout were federally listed as “threatened” in the Upper Willamette
River in 1998 and the Lower Columbia River in 1999.

Coho salmon (Oncorhynchus kisutch)18 are an anadromous fish, which means they can live
in both fresh and saltwater. Coho salmon have a relatively complex life history that includes
spawning and juvenile rearing in rivers followed by migrating to saltwater to feed, grow, and
mature before returning to freshwater to spawn. They are vulnerable to many stressors and
threats including blocked access to spawning grounds and habitat degradation caused by dams
and culverts. Coho salmon’s lifespan is unknown, they average approximately 8 pounds but can
weigh as much as 35 pounds, and are approximately 2 feet long. Habitat degradation and habitat
loss is one of the key threats to the species. Coho salmon were federally listed as “threatened” in
the Lower Columbia River in 2005.

Water temperature is biologically important to all Salmonid species, influences physiology,

maturation, disease, and prespawn mortality and fitness. The fry and juveniles of all of the
Salmonid species depend on shallow areas along rivers and streams as rearing and sheltering
habitat, and all life stages of the Salmonid species depend on colder-water refugia, such as those
occurring where cooler streams and other discharges enter a warmer river, or where nearshore
habitat is shaded, for survival and sheltering from warmer waters in a mainstem river. Certain
portions of the Lower Willamette River, for example RM 0-50.6 are already § 303(d) listed for
temperature and subject to the Willamette River TMDL for temperature, which recognizes that
thermal refugia likely occur throughout the mainstem Willamette.

C. The Willamette River Basin, Wakes, Waves, and Artificial Wave River Surfing

The Willamette River has numerous recreational opportunities and the river basin provides a
home and migration stop for diverse species. Boating, fishing, bird-watching, swimming, hiking,
biking, hunting, camping, and plant and wildlife observing are just some of the common
activities Oregonians and visitors enjoy in the Willamette River Basin. The river has
approximately 10 state parks, 3 public ferries, more than 170 Willamette Greenway parcels, city
and county parks, Department of State Lands parcels, and public boat ramps.

Boat and other watercraft that use the Willamette River can create wakes and waves;
however artificial wave river surfing boats and watercraft deliberately attempt to create large
unnatural waves on the river, and during a season when the Willamette River runs flat. The
Willamette River is narrow in spots that appear to be favored for use by artificial wave river
surfing boats and similar watercraft. In the Newberg Pool, for example, the river is less than 600
feet wide, and, as rivers do, it winds and bends. Large and energetic waves in small areas of the
river where wave energy cannot dissipate makes the river an increasingly dangerous place for
humans and for the aquatic life that live there. A 2017 study submitted to the OSMB, and

18 Id., Coho salmon (https://www.fisheries noaa.gov/species/coho-salmon-protected).

14
provided to the DSL, confirms that at least 400 feet width is required for such wave energy to
diminish without washing onto the shore or bank.19 However, artificial wave river surfing boats’
design, operation of “troughing” or “plowing” water to create a wave-effect, failure to follow no-
or slow-wake zone restrictions, failure to stay in the middle of the river, multiple repeated passes,
and the small size and congested artificial wave river surfing areas makes wave energy reduction
impossible on the Willamette River.20 Unnaturally large wave energy cannot disperse before
reaching the bank or shore.

An artificial wave river surfing boat’s goal is to create large, powerful waves or wakes by
digging into the water column for the purpose of creating a deep troughed “wave” that a person
follows behind the craft.21 In the Willamette River Basin, this can create waters approximately 3’
to 5’ high. Artificial wave river surfing boats are now being designed and engineered to generate
even bigger and more powerful waves with ballasted weights reaching more than 10,000 pounds,
and these newer boats promise a future of even higher risks to the ecosystem. However,
numerous factors affect and influence a boat’s ability to create artificial waves; they can be
further magnified by weight, ballast, other fixtures, technology, accessories, equipment, or
features to enhance wave-making capabilities, and by the number of people in a boat. Artificial
wave river surfing is distinctly different from other “towed” water sports like water skiing or
traditional wakeboarding where the craft, and the person remains essentially on the surface of the
water.

Non-motorized boats on the Willamette River have always had to contend with waves from
motorized boats and adverse weather conditions during natural weather events such as storms or
high water flows. However, when there are multiple artificial wave river surfing boats in a single
area, such as Newberg Pool or the Hawthorne Bowl, and at times of year when the water levels
are low, the river is transformed into a boiling kettle of turbulence.22 Artificial waves crash
perpendicular into riverbanks, and vibrate downwards through the shallow waters in a manner
that is unnatural to the river’s flow, and what its ecosystem is designed to withstand. Heavier
boats “bring[] the ocean to the river” and allow people to “ride for as long as their legs can take
it.” Indeed, while they might do so, such wave and wake energy is wholly inappropriate in the
Willamette River Basin waters due to the shallow depth of the river and the river’s federal
designation as critical habitat threatened Salmonids.

Waves of excessive size and energy, and that travel in closely-packed “sets” are unnatural to
the Willamette River, and the river ecosystem is not equipped to handle the impacts. The banks

19See Macfarlane, G. “Wave Wake Study: HB4099 Motorboat Working Group” (Aug. 28, 2018) (wave wake
energy study on the Willamette River) and G. Macfarlane Statement re: House Bills 2351 and 2352 (Feb. 13, 2019).

20Id.; see also, e.g., Video # 4 “Boats not following distance requirements.” (Aug. 21, 2019)
(https://www.youtube.com/watch?v=oSQ_Xu6eGfA); see also e.g., Video # 3 “Waves rolling over docks Butteville
yellow zone” (Nov. 6, 2019) (https://www youtube com/watch?v=PgdM_CbJuDs).

21See Supra Boats Promotional Video 2020 Supra SA (https://www supraboats com/); Nautique Boats 2018
Nautique Surf System (https://www.youtube.com/watch?v=w_l7Ms7goQM); Moomba “Worry-Free Wake Zone”
Video (https://www moomba com/).

22See, e.g., Video # 5 “Congestion in the Butteville yellow zone C046 2 1” (Oct. 13, 2019)
(https://www.youtube.com/watch?v=n02NJBM5Sfw).

15
and riverbed of the Willamette River in many areas where artificial wave river surfing watercraft
go are soft, fragile, and highly erosive. See, e.g., Attachment 4 at 2-3. Wave energy slamming
into the banks and churning up the river bottom causes significant erosion and turbidity, which is
not natural during the summer months when the river is not in high flow.23 See, e.g.,
Attachment 4 at 4. This is also the timeframe when members of the threatened species,
including fish with intact adipose fins, are found in the waters, especially fry and juveniles going
through the rearing process, and fish of all life cycles seeking refuge in colder-water refugia.

D. Willamette River Basin, the Nearshore Nursery, and State Officials’ Harm and
Harassment of Threatened Species

1. Willamette River Structure

The Willamette River is not a deep or wide river. In popular artificial wave river surfing
areas, Willamette Riverkeeper estimates the river is between 400’ and 500’ wide, sometimes
600’ wide, and in rare places approximately 700’ wide. The Willamette River bottom slopes
gently from the banks to the middle of the river; the deepest parts of the river range from
approximately 15’ to 25’ deep. The nearshore habitat, which is essential for fry and juvenile
rearing, feeding, sheltering, resting, and outmigration functions, extends from the banks towards
the middle of the river. Vegetation provides some shade and cooling cover, and the nearshore
habitat area can extend approximately 70’ towards the middle of the river on each side of the
Willamette River, of depths ranging from approximately 2’ to 12’ deep. For the threatened
Salmonids, the water, substrate, adjacent riparian zone, estuarine and riverine reaches, and
marine areas are all part of their critical habitat. 63 FR at 11509, 11511, 11514–15.24 The role of
the Willamette River Basin waters that serve as the nurseries are likely all the more important
because the extensive network of 13 dams and related facilities throughout the Basin which
block Chinook and Steelhead return to their spawning habitat which lie above these structures,
and mitigation measures under the 2008 BiOp and Incidental Take Statement have been delayed
and not yet implemented.

2. Fry and Juvenile Use of Nearshore Nursery Habitat

Fry and juveniles use the shallow-water and nearshore habitat of the Willamette River at
critical junctures in their development (63 FR 11511 (discussing different habitat types at
different life cycle stages, noting that “growth and development” occur primarily in near- and
off-shore marine waters)); the nearshore waters allow them the necessary habitat to mature so
physiologically their bodies can transition from freshwater to salt water, and to gain the

23See, e.g,. Video # 7 “Turbidity to midriver C0188 1BROWN” (Oct. 22, 2019)
(https://www.youtube.com/watch?v=SuxO-oJ8mx4).

24 See 63 FR at 11511 (NMFS summarizing that “essential features of chinook salmon critical habitat to include
adequate: (1) substrate, (2) water quality, (3) water quantity, (4) water temperature, (5) water velocity, (6) cover /
shelter, (7) food, (8) riparian vegetation, (9) space, and (10) safe passage conditions.”); see also 50 C.F.R. § 424.12
(similar criteria for chinook, steelhead, and coho).

16
necessary size and strength to outmigrate, survive out in the ocean, and return to spawn. 25 The
nearshore habitat naturally has slow, calm, low velocity waters (UWR Recovery Plan at Table 7-
1), which allow small fry and juveniles to go through this natural rearing process. In higher,
faster flowing waters, small fish are simply swept away off their food sources and their feeding
is disrupted. In these quiet waters, they feed, shelter to avoid predators, and rest. They also use
these quiet waters to leapfrog their way downriver over their course of their outmigration voyage
which can occur in as little as six months, or as long one to two years or more (63 FR at 11483);
some populations simply remain to grow and spawn, and others only migrate within the
Willamette River Basin.

NMFS has clearly stated that [i]ndividual fish from all five of the threatened salmonid
species use critical habitat within the affected reaches to complete essential life history functions
related to freshwater migration and rearing”, and that “their ability to do so depends on the
presence and quality of specific physical and biological features.” Attachment 1 (emphasis
added). According to NMFS, these include but are not limited to freedom from obstructions
(which may include artificial nose or excessive sediment), floodplain connectivity, forage
(adequate food quantity and quality), natural cover, and water quality. Id. Additional
characteristics which are directly related to the quantity and quality of food available to
salmonids in the nearshore environment are water speed, water quality, water temperature,
sedimentation, flow, substrates, and water oxygen levels.

3. Fry and Juvenile Food Web in the Nursery

The nearshore habitat of the Willamette River Basin is the heart of an “intricately
structured” essential aquatic food web. See Columbia River Estuary ESA Recovery Plan Model,
at 3–10 (Jan. 2011) (attachment to 2013 LCR Recovery Plan). The LCR Recovery Plan observes
that “[a]lterations in any one of the elements of the food web, such as food sources or
availability, can ripple throughout the ecosystem, reducing habitat capacity and having
potentially far-reaching effects on salmonids and other species.” Id. at 3-10 and 3-11. A NMFS
UWR Recovery Plan strategy is to “[r]estore impaired food web dynamics and function, and
maintain unimpaired dynamics and function (both impacts of competition for food resources and
altered ecosystem function.” UWR Recovery Plan at Table 7-1 (p. 7-4).

In the nearshore habitat, important food sources for early life stage Salmonids and all
native fish species, including adults, thrive year round. Aquatic insects (including mayflies,
caddisflies, black flies, stoneflies, and midges), aquatic invertebrates (including freshwater
mussels), and microdetritus are primary food sources in the nearshore nurseries. UWR Recovery
Plan at 3-11. Insects overwinter in and near the river, so their eggs, larvae, pupae, and adult
populations are always present and thus always available as a food source for all stages of fish
development. Aquatic invertebrates thrive on algae and low velocity waters of the nearshore
environment, and many macroinvertebrates’ habitat is in the benthic zone, approximately the top
4-6 centimeters of river bed substrate, in nearshore habitat. Freshwater mussels enhance diversity
in nearshore beds, created better water quality, and enhance the food web.

25See 63 FR at 11484 (Strength attained in homewaters is indicative of likelihood of survival in the ocean, and
increases the chances of returning to spawning grounds to propagate the next generations of species).

17
 4. Coldwater Refugia are Necessary for Essential Behavioral Patterns and the
Survival and Recovery of the Salmonid Species

Both the UWR Recovery Plan and the LCR Recovery Plan describe that coldwater
thermal refugia are of significant importance to the survival and recovery of the Salmonid
species. See, e.g. UWR Recovery Plan at 3-6 (describing whether “the mainstem Willamette
River [has] sufficient habitat conditions to allow juvenile spring Chinook and steelhead adequate
“rest areas” (e.g. thermal refugia, off-channel areas, etc.)” as one of the key metrics for
determining whether the criterion for reducing habitat-threats has been achieved, 5-21
(describing importance of cool water refugia for salmonids due to threat of global change), 7-7
(“UWR stream reaches that drain the Cascade ecoregion may have even greater significance
within a recovery strategy if they provide coldwater refugia under climate change scenarios that
project warmer summer water temperatures”), 9-72 (recommendation to improve physical
habitat quality by “focus on spatial strategies that link coldwater refugia for salmonids”); LCR
Recovery Plan at 4-55 (describing need to “create thermal refugia” in the mainstem of rivers to
address climate change impacts). Oregon DEQ’s 2006 TMDL for temperature in the Willamette
River mainstem further recognizes the importance of temperature for salmonids.

Water temperatures in the mainstem Willamette River regularly exceed the standard of
18.0 °C (64.4 °F) designated for salmon and trout rearing and migration for mid-May to mid-
October upstream of Newberg as well as the 20.0 °C (68.0 °F) criterion designated for salmon
and steelhead as a migration corridor downstream of Newberg. However, significant inflows of
cooler waters create cool water refugia along the migration corridor, for example at the inflows
of the Yamhill River (approximately River Mile (“RM”) 55), the Molalla River (approximately
RM 36), and the Tanner Creek pipe and Johnson Creek (approximately RM 18.5) into the
Willamette River, under the railroad bridge near Lake Oswego and Tryon Creek (approximately
RMs 19-21), and near the deep lagoon at Ross Island (approximately RM 16). Additionally,
shaded areas along the nearshore habitat provide opportunities for fish to find cooler waters.

5. Wakes, Waves, and Artificial Wave River Surfing Boats and Watercraft Harm
and Harass Threatened Salmonids

The shallow nearshore habitats are particularly susceptible to wave energy, turbulence,
velocity, erosion and sedimentation, and reduced water quality caused by large powerful
artificial wave river surfing boats and watercraft whose wakes do not disperse within the width
of the river. NMFS has already informed you that the artificial noise and wave action are
“frequently” a threat to juvenile salmon and steelhead. Attachment 1. Boat surges and wakes
from artificial waves wash juvenile fish onto the shore, or otherwise modify or degrade specific
physical and biological features in ways that injure or kill fish by significantly impairing the
fish’s essential behavior patterns. Id. The activity causes unnatural turbulence and velocity in
water movement, churning the tiny fry and juvenile fish that are not big or strong enough to fight
the energy in the water. 26 Subyearlings measure approximately 90 millimeters, and yearlings

26 See, e.g., KATU News “Broken Boat Interview” (Sept. 13, 2019)
(https://www.youtube.com/watch?v=ZovZfK9hhG0&feature=youtu.be) (stating 5’-8’ waves snapping boats in half).
If waves are strong enough to snap a boat in half, Willamette Riverkeeper alleges similar waves significantly impair
and significantly disrupt essential and normal behavioral patterns of threatened species.

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approximately 130 – 230 millimeters with a maximum size of up to 300 millimeters. At that
small size, they are simply physically unable to sustain any effects, and certainly not repeated or
extended effects, from artificial wave river surfing activities. Where their energy is spent on
fighting water velocity instead of feeding, the rearing, feeding, sheltering, and migrating of
Salmonids are significantly affected. We have evidence that shows young Salmonids present in
popular artificial wave river surfing areas such as River Miles 30-46 during the surfing “season,”
and present in other areas of the Willamette River where boats and other watercraft create
unnatural waves and wakes, including for artificial wave river surfing, such as in the shallow
areas of the Willamette River within the City of Portland.

Similarly, wakes and waves produced by artificial wave river surfing boats move warmer
water into the cold water refugia on which Salmonids depend and create mixing zones that
artificially increase water temperatures to the detriment of the Salmonids present in these refugia.

The strong turbulence and velocity of large wakes also scour algae from the nearshore
habitats, reducing primary production and the energy for the base of the food web, washing out
invertebrates that live in the substrate. Dislodging of food significantly inhibits the Salmonids’
ability to feed and forage.

The nearshore habitats also contain several abundant and voracious Salmonid predators
(namely pikeminnow and small mouth bass, among others). When turbulence and waves disturb
fry and juveniles, it dislodges them from their hiding spots because they cannot physically resist
being swept away; it also mobilizes substrates and removes their shelter habitat; it also removes
habitat Salmonids use for oviposition. This makes them vulnerable to larger predators.
Moreover, wakes from artificial wave river surfing boats momentarily disorientate fry and
juveniles, increasing their risk of predation.

Water quality is very important for young fish to be able to spend their limited energy on
finding and consuming food; if water is sedimented or turbid, Salmonids’ ability to forage and
feed is greatly compromised. If their food sources are disturbed by artificial wave river surfing,
the food sources will move elsewhere. If food sources keeps moving, it is hard for young fish to
eat and thrive. Wakes and waves caused by artificial wave river surfing boats cause extreme and
unnatural erosion and sedimentation from riverbanks, and stirs up river bottom sediment, both
which cause severe disturbance to the fish food web in the shallow nearshore ecosystem. When
large, powerful, unnatural waves crash into riverbanks, they cause high erosion, with chunks of
riverbank collapsing into the water, and the powerful waves destabilize stream banks which
release excess sediment, causing turbid water and silt deposits. See, e.g., Attachment 4. Erosion
and streambank collapse remove vegetation that can offer some natural shade for nearshore
habitat; they also decrease water clarity, increase turbidity, lead to increased water temperatures
and decreased oxygen content. When wakes and waves caused by artificial wave river surfing
boats churns up sediment from the river bottom, silt and fine sediments suspended by the wakes
will coat benthic communities and block light for photosynthesis. In low water flow areas, like
the nearshore habitat, sediments are not readily removed and interfere with water quality.

Salmonid aquatic food sources are in, on, or under the water. Each of these different areas
have “microclimates” in the nearshore habitat with different water flow rates, and aquatic life has

19
developed shapes, sizes, gills, food consumption, egg-laying methods to thrive in these
environments. If the “microclimate” is affected by unnatural wave energy or sedimentation, key
components of the food web that are essential to Salmonids will be compromised.

The effect erosion and sedimentation has on both aquatic insects and fish is direct and
critical as increases in sedimentation can compromise the availability of food in the fish’s food
web. Increases in sedimentation can foul aquatic insects’ gill structures, bury, or smother them,
causing decline in insect populations and thus fish food sources.27 As habitats become
sedimented, aquatic insects will leave, decreasing availability of food for the fish. Even filter
feeder organisms, such as the Western Pearlshell (Magaritifera falcata) and Floaters (Anodonta)
play a huge role in improving water quality and clarity,28 but they too can be smothered by
increased sedimentation and/or scoured out of their beds by strong wave activity. Where the
water quality decreases food availability, the rearing, feeding, sheltering, resting, and migrating
of Salmonids are significantly affected.

NOTICE OF VIOLATION

As NMFS Critical Habitat maps and 50 C.F.R. § 226.212 confirm, essentially the entire
Willamette River Basin is critical habitat for five federally threatened species: the UWR
Chinook; UWR Steelhead; LCR Chinook; LCR Steelhead; and LCR Coho. See, e.g.,
Attachment 2. The presence of these species in the Willamette River, and in areas that
Salmonids depend on for rearing, feeding, and sheltering which are subjected to wakes from
boats and other watercraft for artificial wave river surfing activity, has been confirmed by federal
and state agencies. See, e.g., Attachments 1, 3. Additional research further bolsters these
findings. The OSMB, State Land Board, DSL, the Environmental Quality Commission and DEQ
authorize, allow, and/or cause activities and actions that foreseeably cause unnatural wakes and
waves, including for artificial wave river surfing, that cause take of members of threatened
species under the ESA. The State’s omissions foreseeably cause unnatural wakes and waves,
allow for submersible and submerged lands to be negatively impacted, and allow for water
turbidity, sedimentation, and temperature changes to occur unchecked from boats and watercraft
designed for use or used for artificial wave river surfing. The OSMB, State Land Board, DSL,
Environmental Quality Commission and DEQ are authorized by statutes, through their regulatory
authorities and rule-making authority, through their permitting and licensing authorities, through
their program administration to authorize, allow, and/or cause these activities, and are
empowered by these authorities to take actions that would prevent such take. The State Officials’
authorizations, actions, and omissions are directly and indirectly authorizing, allowing and/or
causing threatened species to be killed, injured, harmed, harassed, wounded, and otherwise
subject to “take” under the ESA, accompanying regulations and NMFS guidance.

The OSMB, State Land Board, DSL, Environmental Quality Commission and DEQ’s
authorizations, actions, and omissions that foreseeably cause wakes, waves, and artificial wave
river surfing activity are harming the threatened species by actually killing or injuring fish,

Wood, P.J. et al. “The response of four lotic macroinvertebrate taxa and burial by sediments.” 163 Arch
27
Hydrobiol. 2:145-162 (Jun. 2005).

28 Vaughn, C. “Ecosystem services provided by freshwater mussels.” Hydrobiologia (Feb. 2017).

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including by allowing and/or causing significant habitat modification or degradation that
significantly impair essential behavioral patterns including breeding, spawning, rearing,
migrating, feeding or sheltering.

The OSMB, State Land Board, DSL, Environmental Quality Commission and DEQ
authorizations, actions, and omissions that foreseeably cause wakes, waves, and artificial wave
river surfing activity are harassing the threatened species by creating a likelihood of injury to fish
by annoying them to such an extent as to significantly disrupt normal behavioral pattern which
include, but are not limited to, breeding, feeding, resting, migrating, or sheltering. This includes
consideration of (1) likelihood of exposure to stressor (2) nature of exposure (magnitude,
frequency, duration, geographic area and species use of the area), (3) expected response of
animal, and (4) nature and duration of response is a significant disruption of behavior including
breeding, feeding, sheltering, resting, migrating.

Neither the OSMB, State Land Board, DSL, Environmental Quality Commission or DEQ
has obtained an incidental take permit, prepared a habitat conservation plan, or is otherwise
subject to a 4(d) limitation allowing such take.

The nearshore ecosystem of the Willamette River Basin waters is the nursery for
threatened Salmonids, and, in the shallow and relatively narrow Willamette River, this
ecosystem extends out into the river. Salmonids also depend on coldwater refugia throughout the
Willamette River Basin. As described above, Salmonids use the nearshore habitat and coldwater
refugia for essential life history functions, including rearing, feeding, resting, sheltering, and
migration life functions and Salmonids are present in all areas of the river, including those
popular with artificial wave river surfing. Artificial wave river surfing occurs in the Willamette
River Basin waters, with boats and watercraft operated in a manner to create an unnaturally high
waves by troughing deep into the water. This creation of unnaturally high waves by boats and
watercraft causes damage to the nearshore ecosystem and create mixing zones that warm the
water temperature within coldwater refugia, and occurs with OSMB, DSL, and DEQ’s
authorizations, acts, and omissions. The foreseeable operation of boats and watercraft to create
unnaturally high waves, including for artificial wave river surfing, creates wave energy that
slams into the river banks, causing erosion and sedimentation, and churns up river bottom
sediments causing turbidity in the nearshore ecosystem.

As described above, operation of boats and other watercraft to create unnaturally high
waves, including for artificial wave river surfing, in Salmonid critical habitat significantly
adversely impacts the species and their ecosystem. Operation of boats other watercraft for
artificial wave river surfing causes fish stranding, habitat modification and degradation
especially to the nearshore nursery of threatened Salmonids, and significantly impairs
Salmonids’ essential behavior patterns. Operation of boats and other watercraft to create
unnaturally high waves, including for artificial wave river surfing, in Salmonid critical habitat
harms and harasses Salmonids at critical junctures in their life cycles by interrupting their ability
to feed with wave energy and noise, displacing and killing food sources in their food web with
wave energy and sedimentation, increasing predation risks by eliminating shelter, altering the
habitat’s water quality and increasing likelihood of injury and disrupting normal behavioral
patterns, and reducing the chances of survival of outmigration and returning migration.

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 The OSMB actively runs, operates, authorizes, approves, manages, renews, implements,
Oregon’s watercraft registry program, towed watersports education program, and Safe Boating
Education program. The OSMB takes these actions for all boaters using watercraft in the
Willamette River Basin, including for artificial wave river surfing. OSMB requires people
engaged in wake board and wake surfing to take a Towed Watersports Education Course, carry a
Towed Watersports Education card upon successful completion of the course, and for boats and
watercraft used in wake board and wake surfing to have decals certifying that the owner/operator
completed the Towed Watersports Education Program. See ORS 830.640, 830.643. Additionally,
the OSMB runs, authorizes, approves, and manages the Willamette Greenway rulemaking
process. The OSMB’s above-referenced actions continue to authorize, allow, and/or cause boats,
other watercraft, and artificial wave river surfing craft to use the Willamette River Basin waters
in a manner which harms and harasses Salmonids. Furthermore, since receiving NMFS’s
Opinion Letter in January 2020, the OSMB’s acts have remained on course with prior actions.
The OSMB’s omissions foreseeably cause unnatural wakes and waves, allow for submersible
and submerged lands to be negatively impacted, and allow for water turbidity, sedimentation,
and temperature changes to occur from boats and watercraft designed for use or used for
artificial wave river surfing. Thus, the OSMB is authorizing, allowing, and/or causing a take of
threatened Salmonids in violation of the ESA, which is ongoing, and is reasonably likely to
continue to result in a take.

The State Land Board and DSL actively run, operate, authorize, approve, manage actions
relating to Oregon’s public trust lands and waterways, public trust aquatic resource planning
actions, public trust submersible and submerged lands, and engages on rule-making, and closure
orders. The State Land Board’s and DSL’s approach in the above-referenced actions continues to
authorize, allow, and/or cause artificial wave river surfing craft to use the Willamette River
Basin waters in a manner which harms and harasses Salmonids. Furthermore, since receiving
NMFS’s Opinion Letter, the State Land Board’s and DSL’s acts have remained on course with
prior actions. The DSL’s omissions foreseeably cause unnatural wakes and waves, allow for
submersible and submerged lands to be negatively impacted, and allow for water turbidity,
sedimentation, and temperature changes to occur from boats and watercraft designed for use or
used for artificial wave river surfing. Thus, the State Land Board and DSL are authorizing,
allowing, and/or causing a take of threatened Salmonids in violation of the ESA, which is
ongoing, and is reasonably likely to continue to result in a take.

The Environmental Quality Commission and DEQ actively run, operate, authorize,
approve, manage actions relating to Oregon’s waters, protecting them from pollution,
degradation, and promoting their beneficial uses. The Environmental Quality Commission and
DEQ also have enforcement authority to address pollutants such as temperature, sedimentation,
and turbidity. The Environmental Quality Commission’s and DEQ’s approach in the above-
referenced actions continues to authorize, allow, and/or cause artificial wave river surfing craft to
use the Willamette River Basin waters in a manner which harms and harasses Salmonids.
Furthermore, since receiving NMFS’s Opinion Letter, the Environmental Quality Commission’s
DEQ’s acts have remained on course with prior actions. The Environmental Quality
Commission’s and DEQ’s omissions foreseeably cause unnatural wakes and waves, allow for
submersible and submerged lands to be negatively impacted, and allow for water turbidity,

22
sedimentation, and temperature changes to occur from boats and watercraft designed for use or
used for artificial wave river surfing. Thus, the Environmental Quality Commission and DEQ are
authorizing, allowing, and/or causing a take of threatened Salmonids in violation of the ESA,
which is ongoing, and is reasonably likely to continue to result in a take.

As you have acted, are acting, and are reasonably likely to continue to act in a manner
that allows and/or causes take of federally threatened Salmonid species, and you do so without
an incidental take permit or a habitat conservation plan or a 4(d) safe harbor, your conduct is in
violation of the prohibition against taking an endangered or threatened species as set forth in
Section 9 of the ESA.

NOTIFIER

The name, address, and telephone number of the person giving Notice of Intent to file a
citizen lawsuit under the Endangered Species Act is:

Travis Williams, Executive Director

Willamette Riverkeeper
403 SE Caruthers Street, Suite 101
Portland, Oregon 97214
Tel. (503) 223-6418

The name, address, and phone number of the counsel for the Notifier is:

Elisabeth A. Holmes, Staff Attorney

Willamette Riverkeeper
P.O. Box 293
Eugene, Oregon 97440
Tel. (541) 870-7722
Email: eli@willametteriverkeeper org

Please note that due to Governor Brown’s Executive Orders relating to Covid-19, Counsel for
the Notifier is available via email and telephone only for the foreseeable future and will only
have access to U.S. Mail on an irregular basis. Please contact Counsel for the Notifier by email
or telephone to respond to this Amended Notice of Intent to Sue.

CONCLUSION

Pursuant to the citizen suit provision of the Endangered Species Act, 16 U.S.C. §
1540(g)(1)(A), (2)(A), we are providing you with notice of our intent to commence a civil action
at the end of the sixty (60) day notice period with respect to the take of threatened species in the
Willamette River Basin, as identified in this amended notice letter. We will further seek an
award for any costs and fees associated with the litigation, including reasonable attorneys’ and
expert fees.

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 During the notice period, Willamette Riverkeeper is willing to discuss effective remedies
for the violations noted in this letter that may avoid further litigation. If you wish to pursue such
discussions, please have your attorneys contact me via telephone or email. Since the original
Notice of Intent to Sue letter sent on February 12, 2020, we have not heard from the OSMB or
the DSL. Please note that we do not intend to delay the filing of a complaint in federal court if
discussions are continuing at the conclusion of the 60 days.

Sincerely,

s/ Elisabeth Holmes
Elisabeth Holmes, Staff Attorney
Willamette Riverkeeper
P.O. Box 293
Eugene, Oregon 97440
Tel. (541) 870-7722
Email: eli@willametteriverkeeper.org

Enc. Attachment 1 (Jan. 16, 2020 Letter from NMFS to OSMB, copying DSL and DEQ;
includes literature references)

Attachment 2 (NMFS Salmonid Critical Habitat Maps)

Attachment 3 (U.S. EPA and Oregon DEQ Fish Use of Willamette Basin Fig. 340A)

Attachment 4 (Oct. 23, 2019 Letter from J. Criscione to Department of State Lands, with
photographs)

cc: Courtesy E-mail Copies

Larry Warren, Director, OSMB (larry.warren@oregon.gov)
Vicky Walker, Director, DSL (vicki.walker@dsl.state.or.us)
Richard Whitman, Director, DEQ (richard.whitman@state.or.us)
Barry Thom, Regional Administrator (Portland), NMFS (barry.thom@noaa.gov)

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