In reference to the proposed federal rules submitted at https://www.govinfo.gov/content/pkg/FR-2025-11-21/pdf/2025-20551.pdf

Klamath Irrigation District provided the following Public Comment

3 December 2025

Attn: FWS–HQ–ES–2025–0044;

U.S. Fish and Wildlife Service,

MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041– 3803.

 

Re: Public Comments on Proposed Rules Regarding Endangered and Threatened Wildlife and Plants; Interagency Cooperation Regulations

 

To the Secretary of the Interior and the U.S. Fish and Wildlife Service:

 

On behalf of the Klamath Irrigation District farmers and the agricultural communities of the Klamath Basin, we submit this letter to vigorously support the proposed revisions to the Endangered Species Act (ESA) regulations cited above.

Our support is grounded not only in the economic reality of our community but in a demand for unbiased science and a fair regulatory environment. For too long, the implementation of the ESA in the Klamath Basin has relied on flawed environmental baselines and outcome-oriented modeling that ignores the distinct biological needs of species like the SONCC Coho salmon.

We endorse the Department’s direction toward a more rigorous application of the “best scientific and commercial data available.” We believe these proposed rules, particularly regarding the definition of the Environmental Baseline and the Critical Habitat exclusion analysis, are essential to restoring ecosystem health and ensuring that federal actions are evaluated against the true “but for” causes of species decline.

 

  1. Support for Rigorous Exclusion Analysis (Docket No. FWS-HQ-ES-2025-0048)

We support reinstating the Secretary’s discretion to exclude areas from Critical Habitat. While the economic cost to our district is immense, we emphasize that the “benefits of exclusion” must also account for the ecological benefits provided by the Klamath Reclamation Project—benefits that are lost when the Project is curtailed.

 

  • Ecosystem Services as a Benefit of Exclusion: As detailed in our independent 2024 Biological Assessment provided to the Secretary, the Klamath Project effectively replicates the natural hydrologic cycle of the historic Upper Basin lakes and marshes. By filtering nutrient-rich water through agricultural application and returning it to the system, the Project often lowers nitrogen and phosphorus levels downstream (PacifiCorps, 2012). Excluding Project lands from critical habitat designation allows this beneficial cycle to continue, whereas restrictive designations that fallow land sever this natural ecological function.

 

  • Consideration of “Other Relevant Impacts”: We support the inclusion of “community interests” and “public health and safety.” A fair ESA environment recognizes that food security is national security, and that the stability of our irrigation district creates the tax base for local schools and services.
  1. Support for Accurate Listing and Baseline Definitions (Docket No. FWS-HQ-ES-2025-0039)

 

We strongly support the revisions that ensure listing and Critical Habitat decisions are based on accurate data. Specifically, we endorse the move to clarify the Environmental Baseline, as this has been the primary source of conflict in the Klamath Basin.

 

  • The “Two-Step” Process for Unoccupied Habitat: We endorse the reinstatement of the requirement to evaluate occupied areas first. This is scientifically vital for the Klamath Basin because, as the National Academy of Sciences (2004, 2008) and recent independent reviews confirm, the Critical Habitat for SONCC Coho is located in the tributaries, not the mainstem Klamath River where Project operations occur. Designating unoccupied mainstem river reaches or irrigation infrastructure as “essential” contradicts the species’ biological preference for low-velocity tributary refugia (Lestelle, 2007).

 

III. Support for Reforms to Threatened Species Protections (Docket No. FWS-HQ-ES-2025-0029)

 

  • Tailored 4(d) Rules over Blanket Prohibitions: We support rescinding the “blanket rule.” Species-specific rules allow for management based on actual biological needs rather than broad assumptions. For example, applying blanket “high flow” requirements intended for Chinook salmon to Threatened Coho salmon—which require low-velocity water—has historically harmed the very species the ESA intends to protect.

 

  • Scientific Integrity in “Necessary and Advisable” Determinations: We support the requirement for rigorous analysis in 4(d) rules. This must include a review of whether the proposed protective regulations are actually supported by the species’ life history, rather than relying on surrogates (e.g., using Chinook data for Coho).

 

  1. Recommended Additions and Modifications

 

To ensure these rules effectively promote species recovery and a fair regulatory environment, we respectfully request the following modifications based on the findings of the Independent Biological Assessment of the Klamath Reclamation Project (Souza, 2024).

 

  1. Define “Environmental Baseline” to Include Non-Discretionary Infrastructure

 

  • Current Issue: Past consultations have failed to properly distinguish between the “effects of the action” and the “environmental baseline.”

 

  • Recommended Modification: The Final Rule should explicitly state that “The Environmental Baseline includes the consequences of ongoing agency activities or existing facilities that are not within the agency’s discretion to modify, including pre-ESA water rights and infrastructure constructed prior to the Act.”

 

  • Rationale: The Klamath Reclamation Project’s dams and canals were authorized in 1905. Under 50 C.F.R. § 402.02, the physical presence of this infrastructure is part of the baseline. Furthermore, the “natural flow” baseline must account for the fact that pre-Project evaporation from Lower Klamath and Tule Lakes (over 560,000 acre-feet annually) often resulted in less water flowing down the Klamath River than occurs today with Project operations. The Project cannot be penalized for “reducing flows” when it actually augments them relative to the natural, high-evaporation baseline.

 

  1. Codify the “But For” Causation Test

 

  • Current Issue: The Service often attributes broad environmental declines (climate cycles, ocean conditions, predation) to Project operations.

 

  • Recommended Modification: The regulations should codify that “An effect of the action is a consequence that would not occur ‘but for’ the proposed action. Effects caused by external factors such as climate cycles, ocean conditions (e.g., Pacific Decadal Oscillation), or third-party actions are part of the environmental baseline.”

 

  • Rationale: As noted in our Biological Assessment, SONCC Coho decline is driven largely by ocean conditions and tributary habitat degradation, not Klamath Project operations. The Project does not affect the tributaries where Coho rear. A strict “but for” test prevents the Project from carrying the regulatory burden for basin-wide issues it did not cause and cannot fix.

 

  1. Prioritize Local Economic and Hydrologic Data as “Best Available Science”

 

  • Current Issue: Regulatory decisions have historically relied on biased models, such as the Hardy Phase II flow study, which contradict real-time empirical observation and independent data.

 

  • Recommended Modification: The rule should clarify that “Real-time observational data and independent biological assessments provided by local water districts shall be given equal weight to agency modeling. Where theoretical models conflict with empirical observation (e.g., fish presence/absence), empirical data shall prevail.”

 

  • Rationale: Our 2024 Biological Assessment highlights instances where models predicted Coho habitat in high-velocity mainstem waters, while physical sampling and independent studies (Soto et al., 2008; Lestelle, 2007) confirm Coho utilize low-velocity tributaries. ESA decisions must be based on where the fish actually are, not where a flawed model says they should be.
  1. Affirm Section 7(a)(3) Applicant Status for Contractors
  • Current Issue: Existing contractors who require federal authority (water delivery) to operate are often excluded from the consultation process, resulting in unworkable biological opinions.
  • Recommended Modification: The regulations should explicitly affirm that “Irrigation Districts and water users holding existing federal repayment or water service contracts qualify as ‘Applicants’ under Section 7(a)(3) of the ESA. As Applicants, they are entitled to participate in the consultation process, review draft biological opinions, and provide data.”
  • Rationale: Klamath Irrigation District operates the federal infrastructure. Without Applicant status, the entity responsible for implementing the action is excluded from the discussion, leading to operational mandates that conflict with physical realities and contractual obligations.
  1. Consistency with State Water Law

 Addition: We request an explicit statement in the Final Rule that “Nothing in the designation of Critical Habitat or the issuance of 4(d) rules shall be interpreted to supersede or abrogate established State water rights or interstate compacts.”

 

  • Rationale: The Klamath River Basin Compact and Oregon state water law must be respected. Conservation cannot come at the expense of lawful property rights.

 Conclusion

The Klamath Irrigation District Farmers support these proposed rules as a necessary step toward an ESA framework that relies on unbiased science and accurate baselines. By recognizing the true environmental baseline—including the natural hydrology of the basin and the non-discretionary nature of our infrastructure—we can move away from continuous conflict and toward genuine recovery efforts that respect both the ecosystem and the agricultural community.

 

Sincerely,

 

 

 

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