Public Comment in Support for Proposed Rule to Rescind the Definition of Harm under the Endangered Species Act (FWS-HQ-ES-2025-0034-0001)

 

The Klamath Irrigation District, a special government district representing over 1,700 farming families in the Klamath Basin of Oregon and California, is in strong support of the proposed rule to rescind the regulatory definition of “harm” in the Endangered Species Act (ESA). Our district has directly experienced the adverse impacts of misapplied ESA regulations, which have restricted water deliveries for the farmers we represent, destroying family farmers’ livelihoods, undermining our region’s economic stability, and threatening food security for the Nation. Our District’s extensive involvement in water management and ESA compliance gives us a unique perspective on the need for this regulatory reform.

Background: This comment pertains to the proposed rule published on regulations.gov (FWS-HQ-ES-2025-0034-0001), which seeks to rescind the regulatory definition of “harm” under the ESA, as administered by the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and the National Oceanic and Atmospheric Administration. The current definition expands the statutory term “take” beyond the physical act, leading to overly restrictive interpretations by Federal civil servants during Section 7 consultations, particularly for the Klamath Reclamation Project, which our district operates.  In 2021, our District was regulated off, no water deliveries, and we were still considered to be in “take” of the Southern Resident Killer Whales over 500 miles away by the opinions of federal employees aligned with special interest groups.

The Klamath Irrigation District maintains that the ESA has been weaponized by federal employees and special interest groups in the Klamath Basin, with Section 7 consultations erroneously concluding that the Klamath Reclamation Project harms endangered suckers, salmon, and whales with NO evidence of take to the listed species. Peer-reviewed research, such as Hewitt et al. (2018, USGS Open-File Report 2018-1067), demonstrates that project operations do not impair these species’ populations. Yet, the expansive definition of “harm” has justified NOAA’s position to inflict severe water restrictions on farmers, demanding flows above natural conditions to the Klamath River, causing profound harm to over 1,700 farming families since 2001. In 2021, irrigation allocations were again slashed to historic lows, resulting in over $400 million in economic losses for our region (Klamath Water Users Association, 2021).

The agency has not adequately assessed these socioeconomic impacts and lacks clear evidence linking Klamath Irrigation District operations to species harm. The 2024 overturning of the Chevron Doctrine underscores that agency interpretations must adhere to congressional intent, which the current definition of “harm” exceeds. Unintended consequences include eroded trust in federal agencies and heightened community conflict.  The agency could enhance stakeholder understanding by providing detailed evidence on how a determination of “harm” is justified in Section 7 consultations, particularly for water management projects that have spent $100’s of millions of dollars on restoration and mitigation activities.

Recommendations: The Klamath Irrigation District urges the agency to finalize the proposed rule to rescind the regulatory definition of “harm” and rely on the statutory definition of “take.” This change would ensure evidence-based ESA enforcement, protecting both species and our farming communities. We further recommend that the federal agencies:

  1. Immediately reassess Section 7 consultations for the Klamath Reclamation Project, incorporating current, unbiased scientific data on sucker, salmon, and whale populations, to include a Section 7(a)(1) analysis.
  2. Develop and publish transparent guidelines for assessing “take” for the Klamath Project, which, when operating as designed, puts more water in the Klamath River than naturally would have been available, and creates “harm” to the listed species with examples specific to irrigation projects.
  3. Defer ESA compliance to the Klamath Basin farmers to give them the authority to address ESA enforcement concerns and foster collaborative solutions that are not politically motivated by people who live over 2,700 miles away.

These actions would be a first step to facilitate the restoration of balance to ESA implementation, supporting the farmers we represent while advancing species conservation. Thank you for considering our comment.

Sincerely,

 

 

Gene Souza
Executive Director and District Manager
Klamath Irrigation District
6640 KID Lane, Klamath Falls, Oregon 97603
Email: Gene.Souza@KlamathID.org
Phone: 541-882-6661