Top Leader at Interior Dept. Pushes a Policy Favoring His Former Client
WASHINGTON — As a lobbyist and lawyer, David Bernhardt fought for years on behalf of a group of California farmers to weaken Endangered Species Act protections for a finger-size fish, the delta smelt, to gain access to irrigation water.
As a top official since 2017 at the Interior Department, Mr. Bernhardt has been finishing the job: He is working to strip away the rules the farmers had hired him to oppose.
Last week President Trump said he would nominate Mr. Bernardt to lead the Interior Department, making him the latest in a line of officials now regulating industries that once paid them to work as lobbyists. Others include Andrew Wheeler, a former coal lobbyist who now heads the Environmental Protection Agency after the resignation of Scott Pruitt amid ethics scandals. William Wehrum, the nation’s top clean-air regulator, is a lawyer whose former clients included coal-burning power plants and oil giants.
If confirmed as the next Secretary of the Interior, Mr. Bernhardt would succeed Ryan Zinke, who left in January under a cloud of ethics investigations.
For the California farmers on whose behalf he once lobbied, Mr. Bernhardt’s actions to weaken environmental protections would free up river water, an asset of incalculable value as climate change propels California toward a hotter, drier future. Rerouting river water would also devastate the regional ecosystem of the San Francisco Bay Delta, scientists say, imperiling dozens of other fish up the food chain and affecting water birds, orcas and commercial fisheries and encouraging toxic algal blooms.
Mr. Bernhardt received verbal approval from an Interior Department ethics official before initiating the rollback of protections for the smelt, delivering on a campaign pledge by President Trump to release water for the farmers. If the plan goes through, the water could be diverted from the rivers to the fields as soon as December.
It is not the first time Mr. Bernhardt’s official duties have converged with his earlier work as a lobbyist. Before joining the Interior Department in 2017 as the second in command, he lobbied for oil and gas companies. The Interior Department controls drilling rights for millions of acres of federal land and coastal waters.
A delta smelt from the San Joaquin-Sacramento River Delta in central California.CreditJim Wilson/The New York Times
Mr. Bernhardt also worked as a lobbyist and lawyer for the Westlands Water District, which represents California farmers who have been fighting for decades against the delta smelt for access to the river water that both need to survive.
The smelt is at the heart of one of the fiercest battles in California’s decades of water wars. It is a fight that pits agribusiness, which needs irrigation to thrive, against environmentalists and commercial fishermen defending the ecosystem of the vast San Francisco Bay Delta, the rivers that drain it, and the stretch of the Pacific Ocean into which it empties.
The environmentalists have long had the Endangered Species Act on their side, thwarting agricultural interests like the Westlands Water District. Mr. Bernhardt’s efforts to weaken the Endangered Species Act represent a historic power shift.
Mr. Bernhardt has opened a broad, national effort to overhaul the Endangered Species Act. At the same time, he has taken a hands-on approach in the narrow policy change of removing protections for the delta smelt, which could deliver an economic win in the Westlands Water District.
In an interview, Mr. Bernhardt acknowledged that, in late 2017, four months after joining the Interior Department, he directed David Murillo, a senior water-resources official for the mid-Pacific region, to begin the process of weakening protections for the smelt and another fish, the winter-run Chinook salmon, to free up river water for agriculture.
Because Mr. Bernhardt’s actions would disproportionately benefit one of his former clients, independent ethics specialists said that, under the terms of the Trump administration’s ethics pledge, which Mr. Bernhardt signed, he should not have been given clearance to act. Its “revolving door” provision requires former lobbyists to recuse themselves for two years from any particular matter or specific issue on which they lobbied in the two years before joining the administration.
“This is a clear case of violating the ethics code, and a clear conflict of interest,” said James Thurber, who teaches a course on ethics and lobbying at American University in Washington. “He was appointed and, in less than a one-year period, then he started advocating for what he had lobbied for. It’s not a gray area.”
The Interior Department ethics lawyers stood by the decision to approve the action. And, in an interview, Mr. Bernhardt said he was extremely sensitive to ethics issues. “This is an area where I try to be very, very careful,” he said. “My view is, I signed an ethics agreement, I need to be in compliance with that ethics agreement. And I need to get good advice so I don’t make mistakes. Everything I do, I go to our ethics officers first.”
For decades Westlands Water District, a state-chartered organization covering an area the size of Rhode Island, has fought for river water on behalf of the 700 or so almond, cotton and tomato farmers of California’s arid San Joaquin Valley.
The farmers’ chief goal in the district has been to weaken the Endangered Species Act protections of the smelt, a silvery, cucumber-scented fish found only in the San Francisco Bay Delta, and its fellow river resident, the winter-run Chinook salmon. The winter-run Chinook salmon is listed as “endangered” and the smelt is “threatened” (one step below endangered), which entitles their watery habitat to federal protection and restricts use of water for irrigation.
Biologists say the protections have many benefits. “This is not just about two boutique species of fish,” said Jonathan Rosenfield, lead scientist at The Bay Institute, a nonprofit research organization in San Francisco, citing the increased risk of algal blooms in the San Francisco Bay Delta. “Those algal blooms create the kind of toxin where, when dogs jump into the water to go swimming, they don’t jump out,” he said.
Scientists also say the plan violates the Endangered Species Act because it requires that changes like these be based on the best available science, and the smelt remains as threatened as ever.
“I’m steeped in the science,” Mr. Rosenfield said. “If anything, the research indicates that we’re not doing enough to protect these fish from going extinct.”
Local farmers see something else: crops suffering from years of drought.
“These Westlands farmers are growing the nation’s food, the world’s food, and as a result of these protections on fish, their water supplies are drastically reduced,” said Timothy Quinn, who until last year led the Association of California Water Agencies and is now a research scholar at Stanford University’s Water in the West program.
For the farmers themselves, the water represents an economic lifeline.
“It’s a foundational need for us,” said William Boudreau, a member of Westlands’ Board of Directors and executive vice president of Harris Farms, which grow lettuce, tomatoes, almonds and other crops. “If we get this water, it means our communities can thrive, we can employ people. Without water, it’s very difficult to farm. There are dramatic job losses. It reduces our food supply. There’s human suffering.”
A spokesman for the Westlands, Johnny Amaral, declined a request to interview district officials.
If the protections on the fish were lifted, Westlands would not be the only beneficiary — water would also flow to surrounding water districts. But because of a quirk in California law, Westlands would likely be the main beneficiary, according to Jeffrey Mount, a water management expert with the Public Policy Institute of California. That’s because river water in California is distributed according to a longstanding first-come-first-served system, and Westlands is low on the list.
“Westlands is the most penalized under the current system,” Mr. Mount said. “But if the protections on the fish are relaxed, they will be one of the biggest winners.”
Mr. Bernhardt disagrees. “It’s a massive project,” he said of the broad Central Valley system for distributing water to farmers. “It’s 400 miles of project. The coordinated operations involve 25 million people. These are big, big policy things.”
Mr. Bernhardt said his actions reflected Mr. Trump’s broader agenda of helping rural America, including a campaign pledge to deliver water to all the Central Valley farmers. “The president does have a policy that he wants us to deliver water more efficiently, and it’s good policy.” he said. “I don’t believe for a minute that I’m doing things to benefit Westlands. I’m doing things to benefit America.”
$1.3 Million in Lobbying Fees
In 2011 the farmers of Westlands hired Mr. Bernhardt, who worked for the firm Brownstein Hyatt Farber Schreck. During his five years as lobbyist and lawyer for the district, it paid his firm at least $1.3 million in lobbying fees, his disclosure reports show.
For Westlands, Mr. Bernhardt said he lobbied Congress on a broad water infrastructure bill, but his lobbying was focused on one specific section of the bill: a provision to weaken smelt and salmon protections, and divert water to the Central Valley farmers. That bill passed, but it resulted in the release of only small amounts of river water for irrigation in Westlands, and will do so only through 2021.
Weakening the underlying Endangered Species Act protections would free up much more water.
In 2014, Mr. Bernhardt, on behalf of Westlands, joined a legal petition asking the Supreme Court to take up a case seeking to weaken or lift Endangered Species Act protections on the delta smelt. The same year, he made oral arguments in a case that pitted Westlands and a half-dozen other California water districts against the federal government and sought to weaken Endangered Species protections on the winter-run Chinook salmon.
In both cases, Mr. Bernhardt argued that the protections for the fish relied on flawed scientific and legal findings. In both cases, Mr. Bernhardt and his clients lost.
In 2016 Donald Trump raised the issue of the delta smelt at a campaign rally in Fresno, assailing policies designed “to protect a certain kind of three-inch fish.”
“We’re going to start opening up the water,” he said.
Bernhardt Steps In
The next year, the Trump administration began taking steps to make that happen. Mr. Bernhardt led the effort after being confirmed as the deputy Secretary of the Interior Department in July 2017. He had de-registered as a lobbyist for Westlands in November 2016.
After his confirmation, Mr. Bernhardt signed the Trump administration’s ethics pledge. Four months later, in November 2017, Mr. Bernhardt’s public records show that he held four phone calls with Mr. Murillo, the Interior Department official with the legal authority to initiate the process to revise protections for the delta smelt and winter-run chinook salmon. Other people were on the calls, as well.
The outcome of those conversations was that Mr. Bernhardt told Mr. Murillo to begin the process of changing the protections for the fish and to finish as quickly as possible, according to three people familiar with the matter. In December, Mr. Murillo began that process.
Mr. Murillo, who retired from the Interior Department in November, declined to comment on the record.
Before phoning Mr. Murillo, Mr. Bernhardt said, he had received verbal clearance from an Interior Department ethics lawyer. Technically, the lawyer told Mr. Bernhardt, he had lobbied on a broad water bill — one with many provisions, not just smelt rollbacks. So even though he had specifically lobbied only on the provision targeting the smelt and salmon, he was within the ethics rules.
“They say to me, ‘It’s gigantic,’” Mr. Bernhardt said of the bill.
A senior ethics official at the Interior Department, who spoke on condition of anonymity, said he did not believe Mr. Bernhardt had violated the Trump ethics pledge, or any other ethics rules or laws, because the lobbying was on the broader matter, the overall water bill. However, the official said that other ethics experts could reasonably arrive at a different conclusion.
Several government ethics specialists disagreed with the Interior Department’s interpretation. “That argument is a real reach,” said Virginia Canter, the chief ethics counsel for Citizens for Responsibility and Ethics in Washington, a nonprofit, nonpartisan watchdog group.
She said Mr. Bernhardt should have received the approval in writing. “If he didn’t receive it in writing, it’s still an open question of whether he violated the pledge, and worthy of an investigation,” by the agency’s Inspector General, she said.
Under federal ethics rules, Mr. Bernhardt could have requested a formal written waiver from the White House, or short of that, a written memo from the agency ethics official laying out guidance on how to proceed.
A spokeswoman for Mr. Bernhardt, Faith Vander Voort, said in an email that since the Interior Department ethics officials had determined that he had lobbied on the “broad” matter of the water infrastructure bill, rather than a narrow or specific matter, “Mr. Bernhardt was not required to receive written guidance or authorization from the Departmental Ethics Office prior to participating in the decision.”
As a former lobbyist, Mr. Bernhardt said he takes care to stay within the regulations, particularly in matters involving his former clients. “My job is to follow the rules to the T, and if Congress wants to change rules, Congress can,” he said.