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ESA REASSESSMENT II.0: WHO, WHAT, WHEN?
By Paul Simmons
On February 10, Secretary of the Interior Doug Burgum issued a memorandum rescinding former Secretary Haaland’s withdrawal of the Endangered Species Act (ESA) reassessment for the Klamath Project (Project) that was completed during former Secretary Bernhardt’s tenure. On May 15, as directed by Secretary Burgum, Acting Solicitor Greg Zerzan, completed a memorandum updating legal guidance that been relied upon for the original reassessment.
In a June 25, 2025, filing in the U.S. Court of Appeals for the Ninth Circuit, federal agencies noted that the Bureau of Reclamation has “committed to a ‘fundamental change’ in how it operates the Klamath Project and conducts [ESA section 7] consultation.” The agencies, Klamath Water Users Association (KWUA), Klamath Irrigation District (KID), and the federal agencies agree that a case pending in that court should be dismissed as moot, and that a 2023 district court decision should be vacated.
Is everything crystal clear?
No.
But all of these developments are positive. Below, KWUA provides information to sort things out from a practical perspective.
The Physical and Legal Pathway to Water Delivery in the Project
Assume you farm irrigated land in Malin Irrigation District (MID).
Physically, in order for water to reach your land:
- The Bureau of Reclamation (Reclamation) operates Link River Dam, which regulates water levels in Upper Klamath Lake, facilitating gravity diversion into A Canal and also storing water for use when needed.
- KID diverts water from Upper Klamath Lake at the A Canal headworks, and through its system, directs some of that water to D Canal. (All of this infrastructure is owned by Reclamation but operated and maintained by KID.) to D Canal.
- MID pumps water from D Canal via pumps owned by the district, into the distribution system constructed, owned and operated by MID.
The infrastructure alone does not get water onto your farm. There must be water rights that allow storage, diversion, and delivery of water to the property using it. To that end:
A water right is not self-executing. A water right does not require the right holder to exercise the right. MID and you need additional legal arrangements in order to have other parties store, divert, and deliver the water to MID’s pumps. In this case, delivery contracts require certain parties to take certain steps:
- Beginning in the 1920’s MID entered into a series of contracts with Reclamation that provide that “The United States will impound, store, or otherwise provide water for the irrigation of District lands, and deliver same to the District through the Adams or D Canal of the Klamath Project, at a turnout located…
- In 1954, KID entered into a contract with Reclamation that provides transfers responsibility to KID for the operation and maintenance of A Canal, D Canal, and others. Thus, Reclamation operates Link River Dam, but KID takes all other actions necessary to divert and deliver water to MID’s pumps in D Canal.
- Under state law, MID owes a duty to its patrons to distribute water to district lands for irrigation.
- These contract arrangements do not change the fact that you own the beneficial interest in the water rights for irrigation of your property. The United States Supreme Court has characterized Reclamation’s involvement as being “simply a carrier and distributor”, with the water right belonging to the landowner.
The ESA Overlay
Federal law requires Reclamation to comply with state law. Contract law requires Reclamation to comply with the terms of contracts. The Supreme Court has also said that water rights in irrigation projects are not “like so many bushels of wheat, to be bartered, sold, or shifted about as the Government might see fit.”
In recent years, Project irrigators have felt exactly as if water management has devolved to an exercise in bartering and shifting water, with no clear or consistent set of rules controlling.
To be fair, Congress has the right to pass any law that is within its broad constitutional authority, and federal law prevails over any conflicting state laws. Congress even has the power to pass laws that override otherwise-valid contracts. (Although the Fifth Amendment to the Constitution may require that compensation be paid for taking private property.)
Congress enacted the ESA in 1973. The ESA does not mesh well with water law. It is best considered to be a different, heavy overlay on top of the water rights and water delivery system arrangements.
As relevant to the Project, section 9 of the ESA disallows the “take” of ESA-listed animals unless the take has been authorized through one of the mechanisms provided in the statute.
In the past three decades, section 7(a)(2) of the ESA has had a profound impact on water supplies for the Project. Section 7(a)(2) requires that federal agencies ensure that their actions not jeopardize the continued existence of listed species or destroy or adversely modify habitat that has been designated as “critical.”
Procedurally, an agency proposing an action must “consult” with the U.S. Fish and Wildlife Service or National Marine Fisheries Service (NMFS) and obtain the biological opinion of those agencies, then proceed or not proceed in light of its section 7(a)(2) obligations.
Over the years, the ESA consultation process has deviated from the requirements actually spelled out in the statute and its implementing regulations. Agencies have bargained over volumes of water under the premise that Reclamation “allocates” water to listed species first, and then “allocates” what is left over, to irrigation and wildlife refuges after that.
This has caused chaos, confusion, hardship, and harm.
It All Boils Down to the Definition of an “Action”
For the last several years, KWUA has advocated that Reclamation scrap the water allocation mindset and ground the ESA consultations in the correct procedures.
Here a key principal is that not all federal “actions” are subject to the requirements of the ESA, let alone nonfederal actions such as those of irrigation districts that divert and deliver water.
In fact, the ESA regulations and controlling court decisions have confirmed that section 7 applies only to discretionary federal actions. More specifically, an agency’s duty not to cause jeopardy applies only to proposed actions where the agency has discretion to modify its action in order to benefit listed species. The ESA itself does not furnish this discretion, and the discretion must exist from some other source.
When it comes to nonfederal parties with whom Reclamation has contracts (such as irrigation districts), Reclamation cannot require the nonfederal party to modify its action unless Reclamation has, in the contract, retained discretion that would allow it to modify the nonfederal action in order to benefit listed species.
In an October 2020, memorandum, attorneys in the Office of the Solicitor articulated these principles and pointed to the need for Reclamation to review its legal authorities and contracts.
This in turn, led to the original reassessment, which was also supported by additional legal memos.
If the original reassessment had been implemented, the application of the ESA to the Project would likely have been very different.
The Withdrawal, Restoration, and Reinforcement of the Reassessment
The original reassessment had a lifespan of less than three months. No new legal analysis had been prepared, but on April 8, 2021 Secretary Haaland withdrew the original reassessment.
As a consequence, federal agencies again completed an unanchored ESA consultation. This resulted in the adoption of new operating procedures for the Project, which formally occurred on January 10, 2025.
Secretary Burgum’s February 10, 2025 memorandum and Acting Solicitor Zerzan’s updated legal guidance set the stage for a vastly improved approach to ESA compliance.
As discussed in the June 2025 KWUA newsletter, Acting Solicitor Zerzan’s analysis finds that recent case law supports and bolsters the original reassessment’s conclusions about discretion and contracts.
In addition, the Acting Solicitor squarely addressed a related issue regarding Reclamation’s practice of releasing stored water for the purpose of benefiting listed species. This water is stored for irrigation and the only water right for use of stored water is irrigation.
The Acting Solicitor noted that recent legislation confirmed that Link River Dam must be operated for irrigation, not other purposes, which goes directly to the long-disputed issue regarding uses of stored water.
Whew. Now What?
The stage is set for a vastly improved approach to ESA compliance at the Project. This is expected to involve Reclamation completing a new section 7 consultation, which will result in change from the operating procedures that were adopted at the end of the previous Administration.
As noted in the introduction to this story, parties to previously existing litigation have filed paperwork with the Ninth Circuit Court of Appeals to request that this case be dismissed as moot, based on established precedent.
That case involves some of the same issues above, although the procedural posture is extremely complex and untidy. KWUA, KID, and federal parties have explained that the dispute between them is no longer a live controversy, which requires that the case be dismissed and a lower court decision vacated.
Other parties have argued that the court should go ahead and decide the case. It is very unclear, what issues could or would actually be decided.
In the meantime, there is action. KWUA is in regular contact with Reclamation regarding the need for the timely completion of this process. KWUA is pleased with the focused attention of Reclamation staff and leadership toward this end and will continue to provide updates.
Click Here to read the latest in the July WaterWorks Newsletter
KENO DAM: A LIFELINE OF THE KLAMATH BASIN
As public discussion intensifies over the future of Keno Dam — including proposals for its removal to expand fish passage upstream of the former Lower Klamath River dam sites — the Klamath Water Users Association (KWUA) is reaffirming the dam’s vital role in the region’s water management system.
Located just downstream of the Klamath Irrigation Project diversion works, Keno Dam is essential infrastructure that supports flood control, water deliveries to approximately 100,000 acres of agricultural lands, and critical wildlife habitat for two premier national wildlife refuges. Originally constructed in 1965 following major flood events, Keno Dam replaced the damaged “Needle Dam” to maintain water elevations between Klamath Falls and the town of Keno. Backed by the Klamath Power and Facilities Agreement (KPFA), the Bureau of Reclamation is legally obligated to operate Keno Dam to preserve upstream water levels for essential functions such as diversion, canal maintenance, and flood control.
While KWUA supports a transparent, science-based evaluation of fish passage opportunities, it strongly opposes any effort to disregard established legal obligations and operational commitments. With a long history of assurances affirming the permanence of Keno Dam, KWUA is urging policymakers to respect the dam’s legal, historical, and operational context — and to protect the interests of those who rely on its continued function.
Read Full Press Release
Letter to Klamath-Siskiyou County Boards on Keno (06-11-19)
KWUA Letter to Secretary Burgum re: Keno Dam
Update on Klamath Project Water Availability from Upper Klamath Lake (UKL) and the Klamath River
Today, KWUA received a letter from the Bureau of Reclamation, supplementing its April 9, 2025, communication regarding water availability from Upper Klamath Lake and the Klamath River. While Reclamation states in its letter that forecasted hydrology on June 1st was not as favorable as previous forecasts, it maintains that Project supply “for the 2025 irrigation season continues to be expected to meet anticipated Project demands as based on current hydrology and historical use patterns. Read the entire letter below.
Dear Ms. Nielson
This letter supplements the Bureau of Reclamation’s (Reclamation) letter dated April 9,2025 regarding availability of Klamath Project (Project) water from UKL and the Klamath River.
The forecasted hydrology on I June, 2025 was not as favorable as previous forecasts. Project Supply for the 2025 inigation season continues to be expected to meet anticipated Project demands as based on curren hydrology and historical use pattems. The Project Supply determinations for inigation have been determined to comply with the relevant Biological Opinions for the Klamath Project. Project supply continues to be made available at previous levels. This determination is based on results from the Keno Release Model and a predicted availability from a combination of other Project sources. Ongoing monitoring of hydrology and diversions will continue with updates as new data otherwise becomes available throughout the season. Reclamation will continue to collaborate with contractors in light of updated supply calculations and also consider the need for any necessary operational changes to account for deviations from expected demand.
For contractors that divert Project water directly from Upper Klamath Lake or the Klamath River, to the extent provided by contract, Reclamation personnel will be reaching out to contractors frequently during the season to verify measurement of diversions.
This information will be updated as conditions warrant.
Please direct any questions or comments regarding this letter to Heather Casillas at hcasillas@usbr.gov.
Sincerely,
Digitally signed by ALAN HECK
Alan C. Heck, Jr.
Area Manager
KWUA Applauds Release of Updated Endangered Species Act Guidance For the Klamath Project
KLAMATH FALLS, Ore. – Today, the U.S. Department of the Interior released a memorandum providing updated legal guidance regarding the application of the Endangered Species Act (ESA) at the U.S. Bureau of Reclamation’s (Reclamation) Klamath Project (Project). The updated guidance is provided in a May 14, 2025, “Briefing Memorandum for the Secretary,” from Greg Zerzan, Acting Solicitor of the Department of the Interior. Mr. Zerzan is the chief legal officer for the U.S. Department of the Interior and oversees the work of all its attorneys.
The updated guidance is “extremely welcome,” according to Klamath Water Users Association (KWUA) President Scott Seus. “Project irrigators have suffered far too long with the ESA being used as a rationalization for federal agencies simply dividing up water. Each year has been a fight for who-gets-what, but with no consistent guidance or understanding about the rules.”
The guidance document is anchored by the legal principle that section 7 of the ESA, which has driven regulation of the Project for three decades, applies only to the effects of Reclamation’s discretionary actions. Based on applicable regulations, court decisions, and contracts, critical actions associated with the storage, diversion, and delivery of water for irrigation are not discretionary federal actions.
The updated guidance calls for Reclamation’s ESA approach to be the same at the Project as it has been for other river basins for years, explains KWUA Executive Director Elizabeth Nielsen. “This is about fairness and consistency as much as it is about law,” she said. “The rules applied to the Project should be the same rules Reclamation has applied in other basins and defended in court for over a decade.”
During the first Trump Administration, the Office of the Solicitor prepared detailed legal analysis that was relied on in completing a reassessment of then-current ESA regulation of the Project. The reassessment was intended to be the foundation for future ESA compliance. But three weeks after taking office in 2021, then-Secretary Deb Haaland rescinded the reassessment. “All the work that had been done was discarded without justification,” stated Mr. Seus.
On February 10, 2025, current Secretary of the Interior Doug Burgum rescinded Secretary Haaland’s withdrawal of the ESA reassessment work. Secretary Burgum also directed the Solicitor to update the legal analysis that supported the previous reassessment. That work is now complete. “We thank Secretary Burgum and his team for this prompt action,” said Mr. Seus.
The updated guidance identifies new law and court decisions that bolster the conclusions reached in the previous ESA reassessment. The court decisions include a case decided by the U.S. Court of Appeals for the Ninth Circuit in 2024. The updated guidance also addresses a new statute enacted by Congress in 2024 that directs Reclamation to operate Link River Dam for irrigation. The updated guidance was filed with the Ninth Circuit Court of Appeals as part of a required filing in pending litigation.
The updated guidance is expected to be the basis for new water operation procedures for the Project. “There is work to do to translate the updated guidance into action,” according to Mrs. Nielsen. “We will work with Reclamation and other parties to ensure that happens as soon as possible.”
After years of drought, Klamath Basin farmers get long-awaited water relief
Water managers in the Klamath Basin say, for the first time since 2019, there will be enough water to meet everyone’s demands this year. Elizabeth Nielsen is the executive director of the Klamath Water Users Association, which represents farmers and ranchers. She said her group still has concerns about new procedures the agency is using to determine water allocations.
“In any year but a year like this, that plan would not allow for adequate deliveries to farmers and ranchers in the Klamath project,” she said.
KWUA: “MIXED REACTION” TO 2025 IRRIGATION WATER ANNOUNCEMENT
KLAMATH FALLS, Ore. – Today, the U.S. Bureau of Reclamation (Reclamation) confirmed that 2025 water supplies will be sufficient to meet the anticipated demand for irrigation this year.1
“It shouldn’t surprise anyone that Reclamation is saying this,” said Klamath Water Users Association (KWUA) President Scott Seus, who farms in the Tulelake area. “With the wet winter weather, good starting soil moisture, and abundant snowpack, there should be no doubt that there will be adequate irrigation water in 2025.”
At the same time, according to Mr. Seus, “Reclamation is using rules for distributing water that are completely unrealistic and will be devastating to farms in all but a very wet year like this one. We have a unique opportunity to restart the historic ‘flow-through’ of water that served the needs of our ecosystem and agriculture, given the ample water that is slowly releasing from our current 182% of normal snowpack. We can start to reverse the damage to our landscape that has been compromised by decades of poor water management policy.”
KWUA Executive Director Elizabeth Nielsen stated that Reclamation is applying a water allocation plan developed in the final months of 2024. “Reclamation probably feels like its hands are tied right now. But we will not let a good year bail out a terrible plan.”
KWUA is strongly urging that Reclamation go through the necessary processes to modify the current rules, which are controlled by ESA Biological Opinions. “We made this point in a dozen meetings in Washington, D.C. earlier this month,” said Mrs. Nielsen. “We believe the Administration knows there are serious problems that need to be fixed and is committed to fixes that are durable.”
Mr. Seus echoed this conclusion. “I am very hopeful that better rules, that respect the needs of agriculture, the basin ecosystem and our communities are on the horizon.”
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1 Reclamation Releases 2025 Klamath Project Annual Operations Plan, Reclamation memo to KWUA
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