A draft report by the National Marine Fisheries Service concluded in July that giving farmers in California’s Central Valley more water would harm salmon, steelhead trout and killer whales.
But after the Interior Department’s Fish and Wildlife Service intervened, the final report, released on Oct. 22, reached a new conclusion: The government could maximize water deliveries and protect the fish at the same time.
What happened in between is the subject of an investigation by Democrats on the House Natural Resources Committee who say Interior Secretary David Bernhardt may have influenced the reversal of that scientific assessment to help Westlands Water District, a former lobbying client that provides water to those farmers. The probe also puts one of those Democrats in a tough spot.
Freshman Democratic Rep. TJ Cox represents some of the farmers who would likely benefit from the additional water. Cox, who won his seat in 2018 by just 862 votes, is also chairman of the Oversight and Investigations Subcommittee, which would be expected to lead such a probe. Instead, it’s effectively being led by another committee Democrat from California, Rep. Jared Huffman. Facing what could be a tough reelection fight in 2020, Cox’s future in Congress could depend on whether Bernhardt’s former client gets what it wants.
“That’s what it will come down to,” said S. Aaron Hegde, chairman of the economics department at California State University, Bakersfield, just outside Cox’s 21st District. “At the end of the day, does he support water for agriculture?”
If the committee uncovers documents showing Bernhardt interfered with the scientists’ findings, it would risk the final report being overturned in court.
Cox told CQ Roll Call he supports the committee’s oversight of the Interior Department. Asked about the committee’s investigation into Bernhardt’s work on water issues, however, he declined to comment.
“I understand that you want to talk about this discrete, specific instance or some type of case,” Cox said in an Oct. 17 interview. “But I’m saying, listen, we’ve got a responsibility to look over the entire department, right? And everything over our purview.”
The National Marine Fisheries Service is a unit of the Commerce Department’s National Oceanic and Atmospheric Administration, which has a range of scientific missions, including monitoring weather and climate.
Bernhardt getting involved with science at NOAA would ring alarm bells for Democrats concerned about how he’s handled climate science and species protections at Interior. To get to the bottom of what happened, Democrats may need to give subpoena powers to Natural Resources Chairman Raúl M. Grijalva.
The Arizona Democrat told reporters Oct. 17 there was broad support among subcommittee leaders for giving him that authority.
That next step will be a test for Cox.
“If and when Chair Grijalva requests authority to issue subpoenas in any committee-led investigation I will consider thoughtfully,” he told CQ Roll Call in a statement Oct. 25.
“This committee’s ability to subpoena documents and testimony is vital to our role as a check on this administration and it is something I take neither lightly, nor for granted.”
A vote to give Grijalva subpoena authority has not been scheduled. Asked about Cox’s statement, Grijalva said, “I never do head counts for bills that members haven’t seen yet, and this is no different.”
In the San Joaquin Valley, which has struggled with poverty and drought for years, it’s impossible to separate farming, water and economic development.
At a rally in Fresno in the spring of 2016, candidate Donald Trump told the crowd that if elected he would be “opening up the water so that you can have your farmers survive, so that your job market will get better.” Once in office, Trump gave those farmers a friend in a high place, nominating Bernhardt to be deputy secretary of the Interior.
Bernhardt used to represent Westlands as an attorney and lobbyist, working to reduce endangered species protections for fish that were in the way of more water deliveries or new storage capacity.
Bernhardt became acting secretary in January after the resignation of Ryan Zinke. Shortly after Bernhardt was confirmed on April 11, the department’s inspector general notified Democratic senators and watchdogs that it was opening an investigation into his work at Interior related to former lobbying clients, including Westlands.
A new controversy emerged Oct. 22 with the release of the Marine Fisheries Service final report, concluding the government could divert more water to the farmers and still protect vulnerable Chinook salmon, steelhead trout and a population of killer whales that feed on the salmon.
The draft of the report, published by the Los Angeles Times in August, concluded that the plan would put all of them in jeopardy. After the draft was submitted in July, the newspaper reported, Interior’s Fish and Wildlife Service ordered a new review.
The Interior Department denies Bernhardt was involved in the report or any other science from the Marine Fisheries Service. But some House Democrats say they are still concerned he might have interfered with the science to help Westlands.
Westlands has not had any contact with Bernhardt about the science behind the report, according to spokeswoman Diana C. Giraldo.
“Westlands believes the biological opinions are based on what has been learned over the last decade, not political influence,” Giraldo said in an email.
Huffman, who chairs the Natural Resources Subcommittee on Water, Oceans and Wildlife, is leading the inquiry into whether that happened — and he wants subpoenas issued.
The Commerce Department provided Huffman’s office with a draft Marine Fisheries analysis related to the biological opinion in June. Grijalva and Huffman followed up in August and September with letters asking for communications between the Marine Fisheries Service, Interior and California water officials.
“This is such an egregious violation of science, of credibility, of any pretense of caring about endangered species, that you’d hope even some of our Central Valley friends would cry foul,” Huffman told CQ Roll Call on Oct. 22. “We’ll see.”
No safe seat
Cox defeated three-term Republican Rep. David Valadao last year with less than 51 percent of the vote. In his campaign, Cox promised to get farmers more water; and in a May 29 interview with farming news outlet Agri-Pulse, he said that he joined the Natural Resources Committee to work on “the water issues,” which he said are critical “for our ranches, and for our farms, and really for our communities.”
He isn’t the only lawmaker to ally with California water interests. Democrat Jim Costa, who represents the 16th District just north of Cox’s, has taken campaign contributions from Westlands’ general manager Thomas W. Birmingham. So have two California Republicans close to the committee: Rep. Tom McClintock, who is currently a member, and Rep. Doug LaMalfa, who served on the panel in the last Congress before Republicans lost their majority.
It does not appear that Cox has received campaign contributions from Birmingham or other Westlands staff, but he has received contributions from political action committees aligned with water and agricultural interests in California. Those include $1,000 from an almond growers PAC, $1,000 from the Friant Water PAC and $5,000 from the South Valley Water PAC.
“Every member of Congress faces a conflict where there is potential for them to be conducting oversight that could be problematic to them,” said Danielle Brian, executive director of the Project on Government Oversight. “It’s how they manage that tension.”
As committee members deliberate giving Grijalva subpoena authority, she said Cox or Costa impeding an investigation would be “the line that I would be worried about.” But that is a “hypothetical situation that hasn’t happened yet.”
“We should all be looking at that vote, how that unfolds,” Brian added.