Why some are concerned over water board chairwoman’s ties to Bay Area institute

Felicia Marcus spoke at a water symposium sponsored by The Bee and the City of Modesto in 2015.
Felicia Marcus spoke at a water symposium sponsored by The Bee and the City of Modesto in 2015.

Felicia Marcus, chairwoman of the State Water Resources Control Board, has considerable influence over decision-making that could leave more water in rivers for salmon at the expense of irrigation districts in the Northern San Joaquin Valley.

With a crucial vote set for Nov. 7 on the Bay-Delta Water Quality Control Plan — known as the “water grab” in Stanislaus, Merced and south San Joaquin counties — some are puzzled by what they feel is a conflict of interest given her relationship with the executive director of a Bay Area think tank that’s had millions of dollars in contracts with the state agency she oversees.

The nonprofit San Francisco Estuary Institute had contracts worth $3.3 million with the State Water Board from 2014 to 2017 and routinely does work for the agency’s regional water boards.

The executive of the San Francisco Estuary Institute is Marcus’ husband, Warner Chabot.

No one has formally claimed the spousal relationship and SFEI’s contracting with the state disqualifies Marcus from participating in the Nov. 7 board vote.

It looks, however, like a cozy relationship to local officials who are upset with the state’s proposal to allocate more water to fish and wildlife in the Sacramento-San Joaquin Delta and leave less storage in reservoirs for agriculture and city customers.

“They should never have put themselves in that kind of position to begin with,” said Jim DeMartini, chairman of the Stanislaus County Board of Supervisors. “If that center is doing work for the board she chairs, one of them ought to step down.”

Chabot insists the center is not involved in advocacy and stays away from studies on river flows. None of the agency’s work is cited in support documents for the Bay-Delta water quality update. Chabot added that the center does not contribute scientific findings to decision-makers for Gov. Jerry Brown’s delta tunnels project.

“We don’t do flows,” Chabot said. “We don’t do tunnels.”

Under political reform laws, public officials are expected to abstain from decisions in which they have a financial interest. Officials who perform their duties in an impartial manner and free from bias serve to build public trust in government.

Attorneys have advised Marcus to recuse herself when SFEI contracts for services come before the water board. The powerful board deals with water quality and water rights in California.

In a statement Wednesday, the water board said Marcus was proactive about the issue before Chabot accepted the position with SFEI in fall 2014 and has followed the appropriate legal requirements. Marcus did not comment for this story but released a portion of the legal advice she received in October 2014 from Chief Counsel Michael Lauffer.

Marcus, who’s sometimes called the state’s water czar, would participate in the Nov. 7 board vote unless it’s foreseeable the decision would have a material effect on the couple’s finances.

Marcus’ financial disclosures report spousal income between $10,000 and $100,000 from SFEI — or half his salary — which is within state reporting guidelines. Chabot said his salary has remained at $150,000 a year since taking the job, showing no material gain from contracting with the state.

Before he accepted the job with SFEI, Chabot said, legal advice was sought from three sources — the attorney general, water board counsel and SFEI’s attorney — to make sure the center could still contract with the water board. “I would not take the job unless we created a clear firewall and legal process,” he said.

In a letter that October, Lauffer advised that Marcus could continue her service on the board if her spouse took the job. If SFEI was a private business and hired Chabot, Marcus’ service on the board would nullify contracts, even if she abstained on those items.

Because the institute has nonprofit status, her community property interest in her husband’s salary was deemed a “remote” interest under Government Code section 1090, the state law against self-dealing. Marcus could remain on the board and recuse herself each time an SFEI contract was considered.

Any other issues could be dealt with case by case, Lauffer wrote. The married couple and staff would “remain vigilant and assess potential conflicts as they arise,” the letter said.

Chabot accepted the position and established rules barring employees of the Richmond center from talking with Marcus about contracts or their work for the state. Marcus was advised not to confer with water board staff on SFEI contract activities.

Chabot said the SFEI developed a reputation for nonpartisan and excellent research long before his tenure.

The SFEI and its Aquatic Science Center is a respected think tank created years ago by the water board and Bay Area water agencies. Rather than continuing with years of combat science by sanitation districts, oil companies and interest groups over pollution in San Francisco Bay, the agencies created the science center as a joint powers authority and pitched in funds for objective studies and monitoring.

Along with ecological projects around the Bay Area and the state, the SFEI currently runs the Delta Regional Monitoring Program looking at pesticide toxins in delta water, with almost $1.2 million budgeted for the program this year, and it does monitoring for the water board’s program called SWAMP. Work for state agencies represents 75 percent of Its $10.2 million budget this year.

The center has landed contracts with the Delta Stewardship Council, an independent state agency, created in 2010, that’s focused on a more reliable water supply for California and protection and enhancement of the delta ecosystem.

Last year, the Delta Council approved a contract with SFEI, not to exceed $960,000, to “enhance collaboration and coordination of science initiatives and inform management decisions affecting the Bay-Delta.” Part of the contract is producing science that strengthens the ecological connection between the delta and San Francisco Bay.

There was no competitive bidding for the contract. When asked for the lines of separation between this contract and the water board’s plan for delta water quality, Chabot said the center will identify high-priority options for habitat restoration on the delta landscape. The water board’s Bay-Delta plan talks about restoring native fish habitat in channels.

Matt Gatto, a Delta Council member and former assemblyman from Southern California, did not support the SFEI contract, approved in April 2017, over concerns it would duplicate the work of the agency’s science staff. He wasn’t pleased to learn last week Marcus is married to the executive director of SFEI

“This probably does not make the state of California look good,” Gatto said. “We have a large part of the state that is skeptical of just about everything we do. If you have a whiff of a conflict, it casts doubt on the science we make available to the public.”

Council member Susan Tatayon, who supported the SFEI contract, said she didn’t know about the spousal relationship and it did not matter to her. “I don’t see a conflict,” she said. “The scientists at the Aquatic Science Center are very well respected for their work.”

Randy Fiorini of Turlock, who’s chairman of the Stewardship Council, said the SFEI was hired for the job because of its scientific reputation and previous work providing an ecological history of the delta. The Bay Area center performed studies for the Delta Council well before Chabot’s time as executive director, he said.

Fiorini said he’s aware the center’s executive director is married to Marcus, having previously worked with Marcus on the council. Marcus was a Delta Council member from mid-2010 to 2012. Rainer Hoenicke, the Delta Council’s deputy executive officer for science, was executive director for SFEI before the council hired him in 2013.

Fiorini said the institute’s peer-reviewed work is guided by a lead scientist and is not vulnerable to political influence. “To suggest that is insulting to the scientists who work on these projects,” he said. “We are seeking those services from them because they are good at it.”

Approving the contract without seeking proposals from other potential contractors was legal because the SFEI’s Aquatic Science Center is a local government JPA, Hoenicke said.

Jim Kelly, board chairman for SFEI, said the center’s work on the delta has expanded under Chabot’s leadership. Chabot handles administrative duties while the work of the center’s 50 scientists largely is overseen by clients including regional water boards. “The clients are deeply involved in the whole process from the scope of work to commenting (on the findings) before it goes out,” Kelly said.

Chabot took over reins after the SFEI center was without an executive director for nearly two years. A competitive recruitment and interview process determined he was the best candidate for the position, Kelly said.

Kelly assured that Marcus was not involved in the hiring process. “We are talking about two people who are very savvy legally and never would put themselves in that position,” Kelly said.