Commentary: We’ve known for some weeks that Donald Trump’s transition team includes attorney David Longly Bernhardt, who has been tasked with managing the post-electoral turnover at the U.S. Department of the Interior. Bernhardt will be overseeing the hiring process for Trump’s new Interior Secretary, along with a number of important subordinate positions within the Department, including heads of agencies like the National Park Service and the U.S. Fish and Wildlife Service.
While he’s hardly a household name, Bernhardt is a serious heavy hitter in the kind of policy issues Interior oversees, and his selection for the Interior transition job surprised no one who knows the field. Bernhardt’s expertise, combined with Trump’s apparent willingness to delegate the detailed work of hiring staff to carry out his policies, probably means that Bernhardt will effectively be selecting a good handful of candidates to fill top positions at Interior.
And that may well mean a couple of long-term California water issues get very close attention from Trump’s new Interior Department.
Bernhardt is no stranger to internal Interior Department politics. In 2006, he was appointed by former President Bush as Solicitor in the Department, essentially making him Interior’s lead attorney. Bernhardt had previously served as Deputy Solicitor, Counsel to the Secretary, and a few other high-level positions within the Department since Bush took office in 2001. This insider career track likely contributed to his unanimous confirmation by the U.S. Senate for the Solicitor position.
As Solicitor, Bernhardt oversaw Interior legal strategy on water rights, public lands and waters energy development, and Endangered Species Act issues. His record there wasn’t one you could characterize as uniformly anti-environmental: Bernhardt developed Interior’s legal arguments for forbidding the importation of hunters’ polar bear trophies after the species was listed as Threatened in 2008.
Bernhardt’s private sector work should raise concern among California water activists.
Instead, it is Bernhardt’s work outside the Interior Department that will likely raise concern among California water activists. After the inauguration of Barack Obama on January 20, 2008, Bernhardt took a position with the Denver-based law firm Brownstein Hyatt Farber Schreck, where former Bush Interior Secretary Gale Norton was a partner. Before joining the Bush Administration in 2001, Bernhardt had worked for the firm as an associate attorney.
It’s at Brownstein Hyatt that Bernhardt did much of his work for the not-particularly-green community. Nationwide, Brownstein Hyatt is likely best known among environmentally concerned people for its work representing the developer of a proposed massive copper mine on sacred land in the Santa Rita Mountains in southeastern Arizona. But it’s one of the firm’s California clients that has some water activists on edge as they await news of Bernhardt’s picks for Interior Staff.
That client, described on Brownstein Hyatt’s web site as “the Nation’s largest federal water contractor,” is the Westlands Water District. Westlands hired Brownstein Hyatt in the early days of the Obama administration. That may have been due entirely to the law firm’s reputation as an aggressive advocate. It may also have had something to do with an existing relationship between Bernhardt, who became co-chair of Brownstein Hyatt’s Natural Resources Division, and former Interior Deputy Assistant Secretary for Water and Science Jason Peltier, who left Interior in 2007 to become Westlands’ Chief Deputy General Manager.
Throughout the course of the Obama administration, the embattled water district — in the news most recently for running afoul of the Securities Exchange Commission for allegedly hiding financial problems from would-be investors — has been a major political voice in favor of continued unsustainable water exports from the San Francisco Bay Delta. Bernhardt represented Westlands in its legal efforts to force USFWS and the National Marine Fisheries Service not to block water pumping from the Delta, despite abundant evidence that the pumping threatened legally protected species such as the Delta smelt, the winter-run Sacramento River Chinook salmon, and the southern resident orca population.
We’ve discussed that tortuous legal process at some length here before. In a case that made it to the Ninth Circuit, Bernhardt and his colleagues represented both Westlands and the San Luis & Delta Mendota Water Authority to argue that USFWS violated federal law when it found in 2008 that continued pumping from the Delta would endanger the Delta smelt, and that the federal Bureau of Reclamation, which operates the Central Valley Project and its pumps at the Delta, also broke the law when it accepted USFWS’ recommendations by limiting pumping to help the fish.
In the lengthy legal battle to protect smelt and salmon from excessive water diversions, Bernhardt worked the other side.
Westlands and San Luis, and a long list of co-plaintiffs, lost that suit in the Ninth Circuit in 2014. The agricultural irrigation districts continue their lobbying efforts to preserve pumping. They won a rhetorical boost in Fresno on May 27, when then-Presidential aspirant Donald Trump told a fundraising rally:
You have a water problem that is so insane. It is so ridiculous, where they’re taking the water and shoving it out to sea. And I just met with a lot of the farmers, who are great people, and they’re saying, “We don’t even understand it” … I’ve heard it from other friends of mine in California, where they have farms up here and they don’t get water. And I said, “Oh that’s too bad. Is there a drought?” “No, we have plenty of water.” I said, “What’s wrong?” “Well, we shove it out to sea.” And I said, “Why?” And nobody even knows why. And the environmentalists don’t know why. Now, they’re trying to protect a certain kind of three-inch fish.
Now, Westlands’ attorney will be selecting the next heads of the Bureau of Reclamation and the US Fish and Wildlife Service. The future of USFWS efforts to protect the Delta’s endangered and threatened species from the worst effects of pumping will be very different than the conflicted, obstructed Obama administration USFWS. A Bernhardt-approved Reclamation will likely be a much more strident advocate of the proposed Delta tunnels, which promise to lock in irrigators’ water exports in something close to perpetuity.
During the campaign, Trump promised to “drain the swamp” in Washington DC of lobbyists and influence peddlers. Even before Election Day, he appointed a consummate insider in Bernhardt, who may end up appointing people intent on drying up actual wetlands.
And drying up some of the driest parts of the state as well. KCET has reported at length on the Cadiz Valley Conservation, Recovery and Storage Project, which would export as much as 50,000 acre-feet of water each year from a Mojave Desert aquifer beneath the newly established Mojave Trails National Monument. The project backer, Cadiz, Inc., would sell that water to a group of urban and suburban water companies in Southern California. The main obstacle: the Bureau of Land Management.
A previous version of Cadiz in the early 2000s was subject to a blistering scientific analysis by the U.S. Geological Survey of the project’s likely damage to the desert environment, potentially drying up springs across a wide swath of the desert, including in the Mojave National Preserve. That USGS assessment helped stoke environmentalist opposition to the project, which in turn helped the Metropolitan Water District back away from its partnership with Cadiz.
So when Cadiz started up the second iteration of its project, with similar water delivery projections, the company decided it needed to sidestep USGS review of the project. (The underlying hydrology in the desert had not changed appreciably in the intervening decade.) If there was no federal involvement in approving Cadiz, that wouldn’t trigger federal environmental review of the project, which would mean no pesky science from the USGS would get in the way.
There was just one problem: the wells Cadiz would use to tap the desert aquifer are surrounded by federal land. Building a pipeline to meet up with SoCal’s existing water infrastructure would trigger federal review, and the unwelcome interference of USGS scientists. For the last few years, Cadiz’s business plan has relied on avoiding federal review through a most tenuous of strategies. The company would build its pipeline along a right-of-way of the Arizona & California Railroad, then argue that the pipeline serves safety purposes benefiting the railroad, a loophole that would exempt the pipeline from federal environmental review.
The BLM had to decide whether that argument met the smell test. In October 2015, it decided it didn’t — possibly because the pipeline would carry up to 1.8 million gallons of water each hour, arguably more than the railroad would need to put out occasional fires and cool its engines.
So as of last year if Cadiz wanted to push forward with its project, it would have to go through the federal environmental assessment process, including review of the area’s hydrology by the USGS.
But if you can’t change the underlying science blocking your project, you can always change the way the science is presented and interpreted. As the person leading the Interior transition team, David Longly Bernhardt — again, the co-chair of the Natural Resources Division of the law firm Brownstein Hyatt Farber Schreck — will be selecting new heads for the BLM and the USGS.
Would Bernhardt necessarily pick candidates for those positions more favorably disposed to approving Cadiz’s plans to mine water from the Mojave to water Orange County lawns? The jury is still out, but there’s a big piece of evidence that Cadiz will find much more sympathetic ears within Trump’s Interior Department.
David Longly Bernhardt’s title of “co-chair” of Brownstein Hyatt’s Natural Resources Division might lead you to assume that there is likely another co-chair of that division working closely with Bernhardt. And your assumptions would be correct. Serving alongside Bernhardt as co-chair of Brownstein Hyatt’s Natural Resources Division is his fellow attorney Scott Slater.
Scott Slater is also the CEO of Cadiz, Inc.
We don’t need USGS scientists to do that math.
For the record: one sentence in a previous version of this article could have been interpreted to read that the USGS's analysis of the earlier Cadiz project stopped the project in an of itself. we've edited to clarify that sentences intended meaning, and we apologize for the ambiguity in the original.