The ESA Consultation Record
A chronological, linked index of the federal legal documents governing whether Endangered Species Act consultation can reduce the water the Klamath Project delivers — together with the foundational contracts and authorities behind the District's 1954 contract and Article 13.
The documents below form an administrative record on one decisive question: does the Bureau of Reclamation have discretion to reduce or redirect Project water for endangered‑species purposes, or are its delivery obligations fixed? The Document Index is the quick reference — each row links to the full document and to a detailed annotation further down the page. Below the index are the foundational instruments (the contract chain of title and the controlling statute and adjudication) and a plain‑language explainer of Article 13.
Document Index
In chronological order. Click a title to open the source document; click “Details” for the annotation.
| Date | Document | Source | Open |
|---|---|---|---|
| Oct 28–29, 2020 | Updated Review of Legal Issues — Reclamation’s Operation of the Klamath Project (October 2020 Solicitor’s Opinion) The originating opinion: pre-ESA delivery contracts constrain Reclamation’s discretion; non-discretionary deliveries fall in the ESA baseline. | DOI — Office of the Solicitor (Jorjani) | Open ↗ Details ↓ |
| Nov 12, 2020 | Bernhardt Transmittal Letters — Klamath Water Project (Signed Letter & Enclosure) Bernhardt’s Nov. 12 letters transmitting the October opinion to KWUA / Rietmann and directing the contract-by-contract analysis. | DOI — Office of the Secretary (Bernhardt) | Open ↗ Details ↓ |
| Jan 14, 2021 | Analysis of Klamath Project Contracts to Determine Discretionary Authority Clause-by-clause contract analysis. Cites Article 13 of the 1954 KID contract by name. | DOI — Office of the Solicitor | Open ↗ Details ↓ |
| Jan 14, 2021 | Use of Water Previously Stored in Priority for Satisfaction of Downstream Rights Stored water (ACFFOD) not available for unquantified downstream Yurok/Hoopa rights. | DOI — Office of the Solicitor | Open ↗ Details ↓ |
| Jan 15, 2021 | 2021 Reassessment of Klamath Project Operations (ESA §7(a)(2)) Classifies each operation as discretionary or non-discretionary (baseline). Posted twice. | Bureau of Reclamation — California-Great Basin | Open ↗ Details ↓ |
| Jan 16, 2021 | Secretary Bernhardt — Transmittal Letter to Nathan R. Rietmann Transmits the completed analysis (Jan. 14 memos + 2021 Reassessment). Scanned image. | DOI — Office of the Secretary | Open ↗ Details ↓ |
| Mar 9, 2021 | Reclamation’s Authority and Obligations at the Klamath Project KWUA outside-counsel memo (Somach) endorsing the discretion analysis. | Somach Simmons & Dunn (for KWUA) | Open ↗ Details ↓ |
| Apr 8, 2021 | Withdrawal of Klamath Project-Related Memoranda, Letters, and Analyses Secretary Haaland withdraws the entire 2020–21 package; “not to be relied upon.” | DOI — Office of the Secretary | Open ↗ Details ↓ |
| Apr 13, 2021 | 2021 Klamath Project Annual Operations Plan (Temporary Operations Plan) The 2021 drought-year plan under which the Project received essentially no Upper Klamath Lake irrigation supply. | Bureau of Reclamation — KBAO | Open ↗ Details ↓ |
| Jan–Feb 2025 | Secretary Burgum Order — Rescission of the April 8, 2021 Withdrawal Reinstates the 2020–21 documents; directs updated analysis. Scanned image. | DOI — Office of the Secretary | Open ↗ Details ↓ |
| May 14, 2025 | Klamath Updated Analysis of ESA Obligations (“Zerzan Memo”) Reads Pub. L. 118-246 as removing discretion to divert against contractors. Court filing. | DOI — Office of the Solicitor (9th Cir. 23-15499) | Open ↗ Details ↓ |
| 2025 | Report on Reassessment for Conforming Operations to Legal Requirements Current operative policy; delivery + flood control are non-discretionary. Supersedes 2021. | Bureau of Reclamation — Interior Region 10 | Open ↗ Details ↓ |
Foundational Instruments & Authorities
The contract chain of title behind the District's water service, plus the controlling statute, the water-rights adjudication, and the ESA Biological Opinions the consultation record turns on.
KWUA — 1905 Contract with the United States
The Klamath Water Users Association (organized Mar. 4, 1905) contracted with the Secretary of the Interior to repay the cost of the Klamath Project irrigation works, which Reclamation built by expanding pre-Project works dating to the 1880s. KID is KWUA's successor.
View the 1905 contract (PDF) ↗KID — 1918 Repayment Contract
Klamath Irrigation District was formed by voters to assume KWUA's repayment responsibilities and obligations, and in 1918 entered its repayment contract (Ilr-173) with the United States, taking over the KWUA 1905 contract and dissolving KWUA. (District repayment was completed in 1967.)
View the 1918 contract (PDF) ↗KID — 1954 Amendatory (O&M) Contract
Under Article 13, Klamath Irrigation District assumed the contractual obligations of the United States — operating and maintaining the works, delivering water, and collecting charges. (Article 6 binds KID to federal reclamation law; Article 21 reserves Reclamation's right to resume operation on default; Section 26 is the liability waiver for “drought or other causes.”)
View the 1954 contract (PDF) ↗Klamath Basin Water Agreement Support Act of 2024
Pub. L. No. 118‑246 (H.R. 7938). The statute the 2025 Solicitor memo and Reassessment rely on as the source of Reclamation's non‑discretionary mandate to operate for contractual irrigation delivery and flood control.
View the law (PDF) ↗Klamath River Basin Adjudication (ACFFOD)
The Amended & Corrected Findings of Fact and Order of Determination fix the state-law water rights — the priority and “stored water” framework underlying the Solicitor's downstream-rights analysis.
OWRD adjudication page ↗ESA Biological Opinions — Klamath Project
Reclamation's Biological Opinions and environmental-compliance record for Project operations (USFWS — Lost River & shortnose suckers; NMFS — SONCC coho). The District's position is that the operative opinions were developed outside the USFWS ESA Consultation Handbook process and reflect pre‑negotiated terms.
Reclamation BiOps & compliance ↗ESA Section 7 Consultation Handbook
The joint USFWS–NMFS Handbook sets out the procedures governing Section 7 consultation, alongside the ESA and its regulations (50 C.F.R. Part 402). These features of the Section 7 framework bear directly on the Klamath consultation:
KID is an “applicant.” The Handbook defines an “applicant” as any person who requires formal approval or authorization from a Federal agency as a prerequisite to conducting the action. Because the District depends on Reclamation’s authorizations to operate the Project works and divert water, KID is an applicant — entitled to the procedural role the Handbook gives applicants, including to be kept informed and to provide information during the consultation.Handbook, Glossary “Applicant,” at x; § 2.2(E) “Role of the Permit or License Applicant,” at 2‑12 to 2‑13; 50 C.F.R. § 402.02.
The “proposed action” is bounded by Reclamation’s discretion. Section 7 reaches only actions in which there is discretionary Federal involvement or control. The proposed action that may be consulted on is therefore defined only in relation to Reclamation’s discretionary authorities; the District’s non‑discretionary contractual deliveries belong in the environmental baseline, not in the action subject to consultation.Handbook § 4.5(A) “Description of the proposed action,” at 4‑15, and “Environmental baseline,” at 4‑22; 50 C.F.R. §§ 402.02, 402.03.
No pre‑negotiated “no‑jeopardy” opinion is required — or contemplated. Neither the ESA nor the Handbook calls for the action agency and the Service to pre‑negotiate a non‑jeopardy biological opinion. The biological opinion is the Service’s own determination, reached on the best scientific and commercial data available.Handbook § 1.2(D) “Best available scientific and commercial data,” at 1‑6, and § 4.5(A) “Conclusion,” at 4‑31; ESA § 7(b); 50 C.F.R. § 402.14(g)–(h).
A jeopardy opinion affords more flexibility, not less. If the Service finds jeopardy, Section 7(b)(3)(A) directs it to provide reasonable and prudent alternatives (RPAs). By regulation an RPA must be consistent with the action’s purpose, within the agency’s legal authority and jurisdiction, and economically and technologically feasible. That framework lets the action agency and the applicant shape lawful alternatives after a jeopardy finding — and an RPA cannot require Reclamation to exceed its authority or override non‑discretionary contractual deliveries — which protects the District’s water more reliably than a pre‑negotiated result.Handbook § 4.5(A) “Reasonable and prudent alternatives,” at 4‑41 (development during formal consultation); RPA monitoring at § 9.1, 9‑1; ESA § 7(b)(3)(A); 50 C.F.R. § 402.02 (four‑part definition).
An irreconcilable conflict goes to the Endangered Species Committee — not to the District’s water. If full contractual deliveries are honored and the remaining, truly discretionary operations would still cause jeopardy, Congress created a dedicated body — the Endangered Species Committee — to weigh an exemption from Section 7(a)(2). That is the lawful venue for an unavoidable conflict, rather than curtailing the deliveries the District is owed.ESA § 7(e)–(h); 50 C.F.R. Parts 450–453; Handbook App. G “Exemption Process.”
View the Handbook (PDF) ↗The 1954 Contract & Article 13
KID assumed the United States' obligations
The Klamath Project did not begin with the federal government. Irrigation works were already being built in the Basin in the 1880s (1883–1884 onward). When the Project was authorized in 1905, Reclamation expanded those existing works rather than building a new system from scratch, and the United States contracted with the Klamath Water Users Association (KWUA). In 1918, Klamath Irrigation District assumed KWUA's contracts, succeeding it as the contracting water‑users entity.
The District's modern service rests on the Amendatory Contract of November 29, 1954. Under Article 13, Klamath Irrigation District assumed the contractual obligations of the United States — operating and maintaining the works, delivering water, and collecting charges. (Two related clauses recur in this record: Article 6 binds the District to federal reclamation law and regulations, and Article 21 reserves Reclamation's right to resume operation on default. The liability‑waiver, Section 26, holds the United States harmless for shortages from “drought or other causes.”)
The throughline: if Reclamation's contractual delivery duties are non‑discretionary, federal law places them in the ESA “environmental baseline,” where Section 7 consultation cannot claw them back. Because KID assumed the United States' contractual obligations under Article 13 and operates the works that deliver the water, the discretion question directly governs the water security of the District and its patrons.
Annotated Record
The same documents, in sequence, with summaries and their bearing on KID and Article 13.
The Original Analysis
Updated Review of Legal Issues Concerning Reclamation’s Operation of the Klamath Project↗ PDF
Office of the Solicitor (Solicitor Jorjani) → Secretary of the Interior — the “October 2020 Solicitor’s Opinion”
The originating opinion of the entire record. At the Secretary’s request, the Solicitor’s Office reviewed whether Reclamation must consult under ESA Section 7 for Project operations and concluded that, while operating the Project requires some consultation, Reclamation’s discretion is “almost certainly constrained” by the pre‑ESA water‑delivery contracts — where a contract imposes a non‑discretionary duty to deliver water, those deliveries belong in the ESA environmental baseline and are not subject to consultation. It examines the Van Brimmer, Tulelake, Klamath Irrigation District, and Sunnyside contracts individually.
This is the opinion the April 8, 2021 Haaland memo withdrew and the 2025 Burgum/Zerzan actions reinstated; everything downstream builds on it.
It addresses the 1954 KID contract by name — its liability‑waiver (Section 26) and the absence of a re‑apportionment clause — and frames the theory KID relies on: contractual delivery duties strip Reclamation of discretion and shield the deliveries KID performs under Article 13 from ESA cutbacks.
Bernhardt Transmittal Letters — Klamath Water Project (Signed Letter & Enclosure)↗ PDF
Secretary Bernhardt → KWUA (Paul Simmons) and Rietmann Law PC
Secretary Bernhardt’s November 12, 2020 letters transmitting the October 2020 Solicitor’s opinion to the water users’ counsel and directing the Office of the Solicitor to perform a further, contract‑specific analysis of Reclamation’s discretionary authority — the directive that produced the January 14, 2021 memoranda, which were prepared “in accordance with the November 12, 2020 Letter of the Secretary.”
The linked file is the signed letter with the October 2020 opinion enclosed; the opinion is also posted on its own, above.
The Department’s formal transmittal of the discretion theory to the irrigation community, and its instruction to apply that theory contract‑by‑contract — the analysis that would address KID’s 1954 contract and Article 13 directly.
Analysis of Klamath Project Contracts to Determine Discretionary Authority↗ PDF
Office of the Solicitor → Secretary of the Interior
A clause-by-clause analysis across 150+ Project contracts identifying six clause types (liability waivers, beneficial-use, annual/monthly amounts, delivery dates, re-apportionment). It concludes liability waivers are force-majeure clauses conferring no discretion, and that “beneficial use” obligations under Oregon law leave Reclamation little room to reduce deliveries for species.
This memo cites Article 13 of the 1954 KID contract directly: under Article 6 KID is bound by federal reclamation law, under Article 13 KID assumed the contractual obligations of the United States, and under Article 21 Reclamation may resume operation on default. The Solicitor’s view that this does not change the discretion analysis is the precise point on which the District’s reading of Article 13 may diverge from Interior’s.
Use of Water Previously Stored in Priority for Satisfaction of Downstream Rights↗ PDF
Office of the Solicitor → Secretary of the Interior
Asks whether water already stored in Upper Klamath Lake under Oregon law can be released for the unquantified downstream rights of the Yurok and Hoopa Valley Tribes. It concludes stored water is governed by the Klamath Basin Adjudication (ACFFOD) and is not available to supplement natural river flows — Reclamation meets its trust duty by providing the flow that would exist absent the Project.
Stored Project water is the supply that serves KID’s patrons. By holding that stored water cannot be sent downstream for unquantified claims, the memo protects the storage pool backing the deliveries KID performs as operator under Article 13.
2021 Reassessment of Klamath Project Operations (ESA §7(a)(2))↗ PDF
U.S. Bureau of Reclamation, California-Great Basin Region
Reclamation’s operational application of the Solicitor’s conclusions. It walks through each component of Project operations and classifies each as discretionary (subject to consultation) or non-discretionary (placed in the baseline). It is a decision document meant to guide a future biological assessment and consultation.
Where the legal theory becomes operating policy. Treating contractual deliveries as non-discretionary means the water KID must deliver is a fixed baseline ESA consultation cannot reduce — protecting the obligations KID carries out under Article 13.
Secretary Bernhardt — Letter to Nathan R. Rietmann↗ PDF
Secretary of the Interior → counsel for the water users (Rietmann Law PC; parallel letter to KWUA’s Paul Simmons)
Notifies the water users’ counsel that the Department completed the analysis directed by the November 12, 2020 letter, enclosing the two January 14, 2021 memoranda and the January 2021 Reassessment.
Note: the posted copy is a scanned image; its content is confirmed by the April 8, 2021 withdrawal memo, which lists it.
Formal delivery of the completed contract-discretion analysis to the irrigation community — the package interpreting the very delivery obligations KID carries out under Article 13.
Reclamation’s Authority and Obligations at the Klamath Project↗ PDF
Somach Simmons & Dunn (Johnson & Kropf) → Paul S. Simmons, for Klamath Water Users Association
KWUA’s outside counsel set out the legal research behind the Association’s requests for review, tracing the law from the 1995–1997 Regional Solicitor memoranda through Home Builders and the 2020–21 analysis, and endorsing the core conclusions: ESA Section 7 reaches only discretionary actions, and pre-ESA contractual delivery duties are not discretionary.
The water-user community’s parallel articulation of the position protecting KID’s deliveries. It describes the transferred-works arrangement under which districts operate federally owned works and deliver water within their service areas — the operational role KID holds under Article 13.
The Withdrawal
Withdrawal of Klamath Project-Related Memoranda, Letters, and Analyses↗ PDF
Secretary Haaland → Interior leadership
Citing Executive Order 13990 and the absence of government-to-government tribal consultation, Secretary Haaland withdrew the entire 2020–21 package — the October 2020 opinion, the November 12 letters, the January 2021 Reassessment, both January 14 memoranda, and the January 16 transmittal letters — stating they “should not be relied upon for any purpose.”
The turning point of the record. Rescinding the analysis removed the interpretation shielding contractual deliveries from ESA reductions — leaving the water KID delivers under Article 13 again exposed to discretionary, consultation-driven cutbacks.
2021 Klamath Project Annual Operations Plan (Temporary Operations Plan)↗ PDF
U.S. Bureau of Reclamation, Klamath Basin Area Office
Issued five days after the withdrawal, during one of the worst droughts on record, the 2021 Temporary Operations Plan allocated essentially no Klamath Project irrigation supply from Upper Klamath Lake; the A Canal — the Project’s principal diversion — did not open for irrigation deliveries that season. A June 3, 2021 adjustment further revised the June–September protocol. This is the operational record behind the year the Project received, in practical terms, no water.
Companion documents — the April 13, 2021 transmittals to USFWS and NMFS and the June 3, 2021 adjustment — are listed on Reclamation’s KBAO Operations Planning page.
This documents the “no water in 2021” record — the year the deliveries KID is obligated to make under Article 13 were reduced to essentially nothing. It followed both the April 8 withdrawal of the protective legal guidance and the extreme 2021 drought, and operated under the 2019 / 2020 Biological Opinions and the Interim Operations Plan.
Reinstatement & a New Statutory Basis
Secretary Burgum Order — Rescission of the April 8, 2021 Withdrawal↗ PDF
Secretary of the Interior (Burgum) → Solicitor
Secretary Burgum vacated Secretary Haaland’s April 8, 2021 withdrawal — reinstating the 2020 opinion, the 2021 Reassessment, and the supporting memoranda — and directed the Solicitor to issue updated versions. The order coincided with enactment of the Klamath Basin Water Agreement Support Act (Pub. L. No. 118‑246) on Jan. 4, 2025.
Note: the posted copy is a scanned image; the 2025 Reassessment describes the rescission as dated February 10, 2025.
Revives the framework treating KID’s contractual deliveries as non-discretionary and protected from ESA claw-back — restoring the interpretation most favorable to the obligations KID performs under Article 13 — and sets up the statute-based analysis that follows.
Klamath Updated Analysis of Endangered Species Act Obligations (“Zerzan Memo”)↗ PDF
Acting Solicitor Gregory Zerzan · filed in Yurok Tribe v. KWUA / KID, 9th Cir. Nos. 23‑15499 / 23‑15521
An updated legal analysis concluding that the Klamath Basin Water Agreement Support Act (Pub. L. No. 118‑246) statutorily directs Reclamation to operate Link River Dam and the Project for water diversion consistent with existing contracts and for flood control — leaving no discretion to divert water for other uses to the detriment of Project contractors.
Note: the posted copy is a scanned court filing.
Elevates the protection of KID’s deliveries from a contract-interpretation argument to a statutory command. Those deliveries are precisely what KID is obligated to make and operate for under Article 13 of the 1954 contract.
Report on Reassessment for Conforming Operations of the Klamath Project to Legal Requirements↗ PDF
U.S. Bureau of Reclamation, Interior Region 10
Reclamation’s operational implementation of the May 14, 2025 memo. It concludes that operating Link River Dam and Project facilities to deliver contractual irrigation water and provide flood control is non-discretionary under the 2025 Act — so ESA Section 7(a)(2) does not apply to those actions. Only operations unrelated to delivery and flood control remain discretionary. It supersedes the 2021 Reassessment where conflicting, and sets a four-step path to new operating criteria and NEPA/ESA review (estimated 2026–2027).
The current operative policy. It treats storing, releasing, and conveying water for contractual delivery and flood control as non-discretionary and beyond ESA reduction — the strongest statement in the record protecting the deliveries KID performs under Article 13, now anchored in both statute and contract.