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.

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