When House Republicans passed a major California water bill July 12, agribusiness had cause to celebrate.
The measure, now pending in the Senate, seeks to roll back decades of federal environmental restrictions in the Sacramento-San Joaquin River estuary to prevent the collapse of the region’s famed salmon fishery.
The government would spend billions to build as many as five more dams on the state’s rivers. Growers in the vast Central Valley would get millions more acre-feet of federal irrigation water each year. Water allotments and environmental protection for fish, birds and wildlife would be cut back.
Even as lawmakers voted, only a few insiders knew the sweeping measure was in part the secret handiwork of a Washington lobbyist who soon might play a key role administering the nation’s environmental policies: David Bernhardt, President Donald Trump’s nominee to become the No. 2 executive in the U.S. Department of the Interior.
Bernhardt is a longtime lobbyist for the politically powerful Westlands Water District, which has crusaded for years for more federal irrigation water – and fewer environmental rules – for growers. According to emails made public this week by the Planning and Conservation League environmental group, Bernhardt was involved in political work for Westlands well into this year, even though he told the Senate that he ceased lobbying for Westlands on Nov. 18, 2016.
A confirmation vote is set for Monday. Democrats have lined up against Bernhardt because of conflict-of-interest concerns, and two good-government groups have called for investigations into whether Bernhardt violated federal lobbying laws and lied to Congress when he denied performing “regulated lobbying activity” for Westlands.
Republicans describe Bernhardt as a good man who sees the Interior Department post as an opportunity for public service. Bernhardt hasn’t responded to requests for comment. Westlands said Bernhardt was providing legal advice, not lobbying.
A new examination of the emails by Reveal from The Center for Investigative Reporting shows that behind the scenes, Bernhardt was deeply involved in crafting important legislation championed by agribusiness interests this year – and even a drafted a proposed executive order that growers hoped Trump would sign.
The emails also show just how much some lawmakers rely on lobbyists for help with the nuts-and-bolts tasks of lawmaking.
“Unfortunately, more and more often, that seems to be the norm,” said Jayson O’Neill of the Montana-based Western Values Project, one of the groups that filed a complaint about Bernhardt. “Especially when it involves special interests – they typically have their lobbyist directly provide draft language for our elected officials.”
Here, from the emails, are three important agribusiness interest initiatives in which Bernhardt played a key role.
The GROW Act
The measure, carried by Rep. David Valadao, a Republican who champions farming interests in the San Joaquin Valley, was touted as an attempt to reshape California water policies in response to the historic drought that finally broke in 2016. Its title is an acronym for “Gaining Responsibility on Water.”
The package of dam-building projects and environmental rollbacks had been included in prior bills that were rejected by Congress. This time, it rolled to passage in the House.
The emails indicate Bernhardt’s work on the Valadao measure began Nov. 22 of last year, four days after he claims he stopped lobbying for Westlands.
On that day, a Westlands official, Johnny Amaral, emailed Bernhardt asking if he would join a conference call with two California Republicans: Valadao and Rep. Devin Nunes of Visalia, who also represents a farming district. The topic: legislation for next year.
“Yes, but we need legislation for this year,” Bernhardt replied.
On Dec. 13, Valadao’s office sent a draft of his bill to Westlands’ top executive, Tom Birmingham, via email. An aide described the bill as a “compilation of the operations provisions” from two water bills unsuccessfully pushed by growers in recent sessions.
The aide asked Westlands for “any edits you would like us to make” and said “time is of the essence.” Amaral forwarded the draft bill to Bernhardt, asking him to reply within 48 hours. Also forwarded to Bernhardt was an email from an aide to Nunes saying the goal of the bill was “producing 2.5MAF,” an apparent reference to increasing growers’ allotments from federal water projects in California by 2.5 million acre-feet, far more than what they obtain now.
The email trove doesn’t contain a reply from Bernhardt. But on Jan. 2, the day before Valadao introduced his bill, there was a flurry of emails among Bernhardt, Westlands and the lawmaker’s office.
An aide to Valadao asked Bernhardt to review proposed language for the new bill concerning “the San Joaquin River Settlement language.” The issue was technical but important: The bill sought to shut down a program to restore a salmon run on the lower San Joaquin River, even though the government had agreed to the effort to settle an environmental lawsuit. Should Valadao borrow language from an old bill that had failed to pass, or should new language be crafted? Bernhardt forwarded the email to Westlands.
Later that day, another Valadao aide emailed Westlands, asking for a “letter of unequivocal support” for the measure the lawmaker was about to introduce. Soon after, Bernhardt wrote a letter on Westlands letterhead, calling the bill “a solution to the long-term water supply challenges facing California.”
It was signed by Birmingham.
The Water Infrastructure Improvements for the Nation Act
Bernhardt’s fingerprints also were on a controversial California water bill enacted last year amid fierce political infighting in the Senate.
As originally written by outgoing Sen. Barbara Boxer, a California Democrat, the measure was a spending bill to improve the safety of the nation’s drinking water, a problem highlighted by the crisis in Flint, Michigan.
But California’s other senator, Democrat Dianne Feinstein, is close to agribusiness interests.
In consultation with House Majority Leader Kevin McCarthy, a Bakersfield Republican – and without telling her colleague – Feinstein inserted into Boxer’s bill a list of measures favored by the Westlands Water District and other growers: money for new dams in California and language that environmentalists feared would undercut protections for the endangered salmon run.
Boxer complained bitterly, calling the rewritten measure horrible and accusing Feinstein of selling out California’s fishing industry. She wound up voting against her own bill. It was signed into law by President Barack Obama.
Unbeknownst to many lawmakers, Bernhardt helped write technical language for the bill, the emails indicate.
On Dec. 9, after the measure passed the House and was pending a Senate vote, a top aide to McCarthy sent a thank you email to Bernhardt with the subject line, “Successor Biological Opinion Language.”
That’s a reference to technical language in the bill that weakened federal protection for salmon and other endangered species – a longtime goal of Westlands and other big growers.
“I just wanted to thank you for all of your help with this,” the aide, Matt Kellogg, wrote in an email sent to Bernhardt at his lobbying firm address. “We will see what happens in the Senate but I feel pretty good since we posted 360 (yes votes) over here on the bill.”
The email was sent three weeks after Bernhardt claimed he had stopped lobbying for Westlands.
The executive order
Bernhardt also was entwined in an all-hands Westlands effort to produce a signature-ready executive order for Trump. The effort was aimed at getting the president to endorse exporting more water to Westlands growers.
The order would have routed more federally subsidized water to Westlands by undermining a George W. Bush-era scientific opinion from the U.S. Fish and Wildlife Service meant to protect the endangered Delta smelt. Scientists view the species’ survival as a gauge of the Sacramento River estuary’s health.
Bernhardt had served at the Interior Department during the George W. Bush administration. And testimony during his May confirmation hearing brought up old accusations from that era saying he specialized in “the doctoring of scientific findings” as a way to blunt environmental measures.
According to the emails, Bernhardt spent the days following his Nov. 18 claim to have quit lobbying for Westlands vigorously working with the water district’s policy staff writing a proposed executive order ending with the signature line, “Donald J. Trump, The White House.”
“There is a growing body of evidence that demonstrates the implementation of these biological opinions have had profound negative opinions on the human environment,” the proposed order said.
The morning of Nov. 22, Bernhardt was roped into a phone meeting with a Westlands official, Nunes and Valadao.
Five days later, Birmingham, the Westlands general manager, sent a version of the order to Bernhardt, saying, “David, I am particularly interested in your reaction.”
Two days after Christmas, Amaral emailed Bernhardt to say the proposed executive order would be delivered that day to Nunes, who had been named to the executive committee of Trump’s transition team.
Trump did not sign the order.
Corrections: A previous version of this story misstated which Westlands official forwarded an email to David Bernhardt about the GROW Act. It was Johnny Amaral. A previous version also misstated Amaral’s title. He is the deputy general manager for external affairs for the Westlands Water District.