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 But three weeks after taking office in 2021, then-Secretary Deb Haaland rescinded the reassessment.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On February 10, 2025, current Secretary of the Interior Doug Burgum rescinded Secretary Haaland’s withdrawal of the ESA reassessment work.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.”
