In mid-May, the Department of the Interior (DOI) updated its guidance for the application of the Endangered Species Act (ESA) at the Klamath Project on the border of California and Nevada.
The announcement was welcomed by the Klamath Water Users Association (KWUA), which said the updated guidance will add consistency to the enforcement of ESA rules.
“Project irrigators have suffered far too long with the ESA being used as a rationalization for federal agencies simply dividing up water,” said KWUA President Scott Seus. “Each year has been a fight for who-gets-what, but with no consistent guidance or understanding about the rules.”
KWUA said the guidance is based on the legal idea that Section 7 of the ESA, which has guided the management of the Klamath Project for 30 years, only applies to the effects of the Bureau of Reclamation’s discretionary actions. According to applicable regulations, court decisions and contracts, the critical actions associated with the storage, diversion and delivery of water for irrigation are not discretionary federal actions, the group said.
KWUA said the guidance calls for the Bureau of Reclamation’s ESA approach to be the same at the Klamath Project as it has been for other river basins for years. “This is about fairness and consistency as much as it is about law,” said KWUA Executive Director Elizabeth Nielsen. “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.”
Memo details
In a May 14 briefing memorandum, DOI Acting Solicitor Greg Zerzan wrote that conflicting commitments to the people and wildlife of the Klamath River Basin have been difficult to uphold, leading to conflict and litigation spanning decades. “Questions regarding water rights and the protection of species have continued to vex the federal government,” Zerzan said.
He noted that Congress has passed legislation in recent times that helps to clarify how various claims are to be managed, informing the Interior’s approach.
In early February, Secretary of the Interior Doug Burgum reversed the April 2021 decision that had withdrawn Trump-era analyses related to the Bureau of Reclamation’s authority for ESA purposes and permissible uses of stored water. The secretary then directed the reinstated analyses to be updated, which is outlined in the May memo.
In a 2020 discretion analysis, it was stated that if a contract provided the Bureau of Reclamation with discretionary authority to take action that could benefit species listed under ESA, the agency must consult ESA Section 7 on the impacts of the action. However, if a contract did not provide discretionary authority, the agency must include the impacts of the action in the environmental baseline of the consultation.
The discretion analysis was intended to implement direction from the secretary to assess the degree of discretionary authority possessed by the Bureau of Reclamation and inform the agency as it implemented its 2021 reassessment. The analysis focused on contracts between the agency and Klamath Project irrigators.
The updated guidance identifies new law and court decisions that support the conclusions reached in the ESA reassessment conducted during the first Trump administration. In addition, the update includes a new statute enacted by Congress in 2024 directing the Bureau of Reclamation to operate the Link River Dam for irrigation.
“While this analysis directs the Department to manage the resources in the Klamath River basin in the most fair and equitable manner possible consistent with the law, it does not in any way diminish the United States’ trust authorities and responsibilities to local Tribes nor the valid and longstanding legal rights of irrigators,” Zerzan said.
He continued that while the memo addresses how the department will approach conflicting commitments, it does not resolve them, and it will continue to be the duty of the U.S. to attempt to fulfill all of its commitments.
“The updated guidance is expected to be the basis for new water operation procedures for the Project,” KWUA said, adding that there is work to do to translate the guidance into action.
“We will work with Reclamation and other parties to ensure that happens as soon as possible,” Nielsen said. — Anna Miller, WLJ managing editor
