Trump picks lobbyist who funnelled cash to big ag as Deputy Sec of Interior. (What could go wrong?)

  • Published on June 6th, 2017

“Before confirming David Bernhardt as Deputy Secretary of Interior… it is critical to understand whether federal laws were broken, twisted or bent while Mr. Bernhardt was Solicitor and again while employed by Westlands.  Limited disclosures to date reveal that millions of taxpayer dollars have gone to benefit Westlands that should have been deposited in the Federal Treasury.  Before approving this nomination, to be in charge of the Nation’s water, minerals and public lands, a comprehensive investigation is required.”

By Dan Bacherwestlands water district is one of the delta tunnels waterfix funders

That’s the word from a broad coalition of California fishing, conservation, and environmental groups, who sent a letter relaying their concerns over President Donald Trump’s nomination of David Bernhardt, a lobbyist for the powerful Westlands Water District, to serve as Deputy Secretary of Interior.

They said Bernhardt, who served as the Interior Solicitor under the G.W. Bush administration,  has “serious legal, ethical and conflicts of interests issues.”

They sent the letter to Senators Lisa Murkowski and Maria Cantwell, the Chair and Ranking Member of the Senate Committee on Energy and Natural Resources, respectively.

President Trump announced his intent to nominate David Bernhardt for  the position on April 28. If his nomination is confirmed by the Senate, Bernhardt would serve under Secretary of the Interior Ryan Zinke, who recently came to Sacramento to meet with California Governor Jerry Brown to discuss water infrastructure, the Delta Tunnels, public lands and other issues.

Groups signing the letter include the California Sportfishing Protection Alliance, Golden Gate Salmon Association, Pacific Coast Federation of Fishermen’s Asssociations, Planning and Conservation League, Sierra Club California, Restore the Delta, Southern California Watershed Alliance, Environmental Water Caucus, The Environmental Justice Coalition for Water, Friends of the River, Friends of the Earth U.S. and AquAlliance.

The coalition letter sent today outlines conflict-of-interest concerns about Mr. Bernhardt dating back to 2008 when he served as Interior Solicitor.

The groups claim recently revealed documents obtained under the Freedom of Information Act reveal that Bernhardt colluded with powerful water districts in California  “…to redirect federal appropriations to pay their costs of the quarter of a billion dollar planning effort…” for the controversial Delta Tunnels proposal in California. Because of this redirection of federal dollars, “The taxpayer gets the bill instead of the water contractors,” who were supposed to pay the entire bill for the planning, construction, and operation of the Delta Tunnels project.

“Creating this invisible funding mechanism that benefits a few federal water contractors at the expense of the American taxpayer, as well as other Federal and non-Federal water contractors, mandates full disclosure and further investigation. Given the pending nomination, Mr. Bernhardt’s role in this deception of Congress, water users and the public requires a full examination,” the groups stated.

The coalition also wants a full accounting of Mr. Bernhardt’s later activities as a lobbyist for the Westlands Water District:

“From public records and U.S. lobbying reports, Westlands has paid $1,714,291 to the Brownstein firm, of which Mr. Bernhardt is a partner.  This includes the $189,291 paid to the firm prior to Mr. Bernhardt registering as the Westlands’ lobbyist…

Read the letter sent to the Senators:

June 5, 2017

Senator Lisa Murkowski
Chair Senate Committee on Energy and Natural Resources.
522 Hart Senate Office Building
Washington, DC 20510

Senator Maria Cantwell
Ranking Member Senate Committee on Energy and Natural Resources
511 Hart Senate Office Building
Washington, DC 20510

Re: David Bernhardt’s Actions as Interior Solicitor in 2008 Raise Serious Legal and Ethical Questions and Contemporary Conflicts-of-Interest

The Honorable Senator Murkowski and Senator Cantwell:

In testimony at his confirmation hearing, Mr. Bernhardt made derisive passing comments regarding a $250 million dollar water project planning effort. Undoubtedly he was referring to the planning costs for the massive water export tunnels project, now called Cal WaterFix and which is promoted by Bernhardt’s former employer, Westlands Water District (Westlands).

What Mr. Bernhardt neglected to reveal: Back in 2008, it was under Mr. Bernhardt’s watch as Interior Solicitor, that the structure to fund this planning effort was originally devised. Documents are now just coming to light that raise serious legal questions which require investigation before he is confirmed as Deputy Secretary of the Interior.

Recently released Public Records show that, in September 2008, the Bureau of Reclamation and Westlands, along with three other federal water contractors, administratively colluded to redirect federal appropriations to pay their costs of the quarter of a billion dollar planning effort to export 2 more water from the San Francisco Bay-Delta, the largest estuary west of the Mississippi. Congress provided no such authority.

While Mr. Bernhardt was Interior Solicitor, documents were executed whereby Westlands and the three other federal contractors would front Operation and Maintenance funds and then Reclamation would “redirect” Congressional appropriations for those amounts and credit money back to Westlands and the other four federal water contractors for existing CVP charges and costs. It was a form of “double credit” for mandatory obligations–with one payment they got credit for both required operations and maintenance obligations, and their obligation to fund planning for the tunnels project.

The taxpayer gets the bill instead of the water contractors. According to Public Record Documents provided by Westlands, as of 2015, more than $49 million dollars in Congressional appropriations have been ‘redirected’ by this shell-game approach. Of this amount Westlands reaped roughly $36 million dollars. This is roughly equivalent to 3% of Reclamation’s annual budget. This mechanism is described as follows by one of the participating federal water contractors:

This Agreement provides for continued advance payment of certain Central Valley Project (CVP) O&M costs as a mechanism to free up federal appropriations for the Delta Habitat Conservation and Conveyance Program (DHCCP). The District will receive a credit from the Bureau of Reclamation (Reclamation) for the advance payment applicable to its ongoing O&M costs for delivery of CVP water. The District and other CVP contractors benefit from using this mechanism because federal appropriations used to fund DHCCP are deemed to be nonreimbursable (no water contractor repayment needed), and reduce dollar for dollar the amounts that otherwise would need to be paid by the San Luis & Delta Mendota Water Authority.

Tom Birmingham, Westlands’ Executive Director, described the scheme to his Board of Directors stating, ..” the execution of an agreement with the Bureau of Reclamation which would provide the mechanism…[that] would allow Reclamation to re-direct federal appropriations...to the DHCCP [Delta Habitat Conservation and Conveyance Plan] planning process.” (emphasis added)

The agreements also established an executive committee whereby the contractors promoting the project are given authority over alternatives, the scope and funding of the tunnels planning efforts. All out of public view or comment.

According to the Public Records obtained from Reclamation, David Bernhardt’s Solicitor’s office approved the legal sufficiency of these agreements prior to his departure from the Department of Interior.

Creating this invisible funding mechanism that benefits a few federal water contractors at the expense of the American taxpayer, as well as other Federal and non-Federal water contractors, mandates full disclosure and further investigation. Given the pending nomination, Mr. Bernhardt’s role in this deception of Congress, water users and the public requires a full examination.

Mr. Bernhardt testified he will conduct the business of Interior in a collaborative fashion, with open and transparent public involvement. And yet, while Solicitor he oversaw the creation of this closed, non-transparent, non-public funding apparatus that taps the US Treasury to benefit this select group of federal water contractors. Besides raising serious legal questions, this issue also raises factual and ethical questions.

Westlands Water District has yet to respond to public record requests regarding the payment details, including the work descriptions and

Payments to Brownstein-Bernhart for Delta Tunnels lobbying
Reported in Westlands’ Consultant Budget Expenditures from June 2010. These reports also show payment for the months of Jan-March 2011. These amounts have been added to the LDA disclosed funding. The total amount added to LDA disclosure is $189,291 ** Mr. Bernhardt withdraws from lobbying for Westlands in an attempt to meet Trump Administration ethics rules. ***Westlands’ payments to Brownstein from January 2017 to April 2017.

payments made specifically to Mr. Bernhardt. His work is described only as “lobbying” and “Washington Representation.” From public records and U.S. lobbying reports, Westlands has paid $1,714,291 to the Brownstein firm, of which Mr. Bernhardt is a partner. This includes the $189,291 paid to the firm prior to Mr. Bernhardt registering as the Westlands’ lobbyist. Mr. Bernhardt in his ethics statement has disclosed he receives “a pro rata partnership distribution based on the value of my partnership interest for services performed in 2017 through the date of my withdrawal.” The public is left in the dark regarding his conflicts. *

Even without disclosure it is clear from released Public Record Documents, that Mr. Bernhardt participated extensively in efforts to impact federal Interior water policy and budgets to the exclusive financial benefit of Westlands. By water district/agency standards, the consulting/lobbying fees are among the largest in the Nation. Westlands is the largest federal water district in the nation. The District receives substantial public benefits in the form of subsidized water rates, power, and operation and maintenance charges. Unlike other western water and irrigation districts in the seventeen Western States, even Westlands’ operation and maintenance costs are partially paid by the taxpayer.

Before confirming Mr. Bernhardt, as Deputy Secretary of Interior, with jurisdiction over this federal largess, it is critical to understand whether federal laws were broken, twisted or bent while Mr. Bernhardt was Solicitor and again while employed by Westlands. Limited disclosures to date reveal that millions of taxpayer dollars have gone to benefit Westlands that should have been deposited in the Federal Treasury. Before approving this nomination, to be in charge of the Nation’s water, minerals, oil, gas and public lands, a comprehensive investigation is required.

If you have any questions or require additional information, please contact Jonas Minton, Senior Water Policy Advocate for the Planning and Conservation League at (916) 719-4049 or Noah Oppenheim, Executive Director for the Pacific Coast Federation of Fishermen’s Associations at (415) 561-5080

Thank you in advance for your attention to this important ethics issue.

Jonas Minton Senior Water Policy Advisor Planning and Conservation League jminton@pcl.org
Noah Oppenheim Executive Director The Pacific Coast Federation of Fishermen’s Asso. Institute for Fisheries Resources noah@ifrfish.org
Kathryn Phillips Director Sierra Club California kathryn.phillips@sierraclub.org
Barbara Barrigan-Parrilla Executive Director Restore the Delta Barbara@restorethedelta.org
Conner Everts Executive Director Southern California Watershed Alliance Environmental Water Caucus connere@gmail.com
Amanda Ford Reverend The Environmental Justice Coalition for Water amanda@ejcw.org
Bill Jennings Chairman Executive Director California Sportfishing Protection deltakeep@me.com
Barbara Vlamis Executive Director AllianceAquAlliance barbarav@aqualliance.net
Ben Schreiber Senior Political Strategist Friends of the Earth U.S. bschreiber@foe.org
Eric Wesselman Executive Director Friends of the River Eric@friendsoftheriver.org
John McManus Executive Director Golden Gate Salmon Association john@goldengatesalmon.org
Larry Collins President Crab Boat Owners Association papaduck8@gmail.com





About the Author

Dan Bacher is an environmental journalist in Sacramento who focuses on California's water issues, a healthy environment for the salmon fishery of the Northwest, and the attempts by big agriculture and big oil to hog all the water.