WASHINGTON _ Complaints are mounting against Acting Interior Secretary David Bernhardt over allegations he used his position to help the interests of his former lobbying client, California's powerful Westlands Water District.
The nonpartisan Campaign Legal Center filed a complaint accusing Bernhardt of ethics violations by partaking in decisions directly related to his past lobbying work, resulting in rules that would free up more river water to Fresno-based Westlands and weakening protections for certain endangered fish populations.
It's not the first of such complaints against Bernhardt, stemming from a report in The New York Times.
"In California, water is increasingly scarce and government officials are expected to protect public resources in the public interest," said Delaney Marsco, ethics counsel at Campaign Legal Center.
President Donald Trump nominated Bernhardt earlier this month to be the permanent head of the Interior Department, which requires a confirmation hearing in the Senate. Before he was acting secretary he was confirmed by the Senate to be the department's deputy secretary.
Sen. Lisa Murkowski, R-Alaska, chair of the Senate Natural Resources Committee, asked Bernhardt about those potential issues stemming from his lobbying work with Westlands in written questions for his previous confirmation hearing. Bernhardt responded that he would fully comply with ethics agreements and he would "install a robust screening process, should one not exist within the office," to avoid ethical issues over former clients.
"He knows that there was an ethical cloud over any actions he took concerning Westlands," said Brendan Fischer, director of the Campaign Legal Center. "He should have taken every step possible to alleviate ethical concerns."
Bernhardt signed an executive branch ethics pledge required him to refrain from participating in decisions that he previously worked on as a lobbyist for two years. Westlands is a heavyweight in California water disputes. It describes itself as the country's largest agricultural water district and it supplies farms in the western San Joaquin Valley that go dry in the California summer.
On his Westlands lobbying disclosures from 2016 and 2017, Bernhardt listed "potential legislation regarding the Bureau of Reclamation and the Endangered Species Act" under his specific lobbying areas, including trying to minimize protections for fish populations that were endangered in part because of limited water flows, such as the delta smelt.
The Interior Department, citing biological studies in 2008, reduced water supply to entities such as Westlands, which in turn decreases water supply to farmers in the region. Trump had promised farmers he would restore their water supplies during his presidential campaign.
Emails obtained by Campaign Legal Center show Bernhardt was directly involved in November 2016 in the drafting of Trump's executive order to direct the Interior Department to "maximize water supplies" to water entities such as Westlands.
Bernhardt told The New York Times that while deputy secretary in late 2017, "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." Bernhardt reportedly received "verbal approval" from an ethics official before issuing those directions.
Murillo's office posted a thorough proposal for diverting more water to irrigation districts such as Westlands, weakening protections on the smelt and other fish, earlier this month. The reports indicate the proposed actions would have "both beneficial and adverse effects" to certain endangered fish habitats.
Campaign Legal Center asked the Inspector General to investigate whether that ethics official was given complete information on Bernhardt's past lobbying activities and "why a written ethics opinion was not issued."
"If Bernhardt had disclosed the full scope of his lobbying, it seems an ethics official would want to give written ethics advice," Marsco said.
Faith Vander Voort, spokeswoman for interior, said Bernhardt is "fully in compliance with his recusal agreements." She forwarded a recent email from interior ethics officials who reviewed the matter at his direction. It said Bernhardt was in compliance with his ethics pledge, as the executive order doesn't rise to the specific legal categorization of "particular matters" that it would need to in order to be considered a violation.
Inspector General Mary L. Kendall can open an investigation into the issue but cannot take direct action against Bernhardt if she finds wrongdoing. She can refer any criminal concerns to the Department of Justice or recommend additional ethics training.
