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May 11, 2022  |  Written by Kelley M. Taber

Court of Appeal Sides with Parties Seeking Attorneys’ Fees for Challenge to California WaterFix Project

Siding with public agencies and environmental groups who filed numerous legal challenges to the “twin tunnel” Delta conveyance project known as California WaterFix, the Third District Court of Appeal today unanimously held that the trial court improperly denied the appellants’ attorneys’ fees motions when it ruled that their legal challenges were not a “catalyst” for the State’s 2019 decision to rescind the WaterFix project approvals and decertify the project environmental impact report (EIR).

After nearly two years of litigation, and several years in proceedings before the State Water Board and the Delta Stewardship Council, the Department of Water Resources (DWR) withdrew the WaterFix approvals following Governor Newsom’s issuance of an executive order directing DWR to “inventory and assess” planning efforts for a Delta conveyance project. The parties challenging the twin tunnels project then filed motions for attorneys’ fees under California’s private attorney general statute, asserting that the litigation was a catalyst that prompted the State’s decision to grant them the relief they sought in the litigation. The trial court denied all the fee motions, and numerous appeals followed.

The Court of Appeal held that the trial court misapplied the legal standard for attorneys’ fees and failed to consider all relevant evidence in considering the motions. The court agreed with the challengers that the trial court erred in treating Governor Newsom’s stated change in policy from the twin tunnels to a single tunnel as an “external, superseding cause,” driving the State’s decision to downsize the project and also erred in assuming DWR’s actions in rescinding the WaterFix EIR and project approvals were “expected,” without the trial court considering evidence relevant to the issue of whether the lawsuits were the cause of the State’s decision to change course.

The decision remands the fee motions to the Sacramento County Superior Court for reconsideration under the correct legal standard identified by the Court of Appeal. Somach Simmons & Dunn represented public agencies in and around the Delta in six of the more than 20 lawsuits challenging the California WaterFix project, and also represented several public agencies who opposed DWR’s lawsuit to validate $11 billion in bonds to finance the twin tunnels.

For more information about the Court of Appeal’s decision, or the litigation, contact Kelley Taber at

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