On April 27, 2026, the Sacramento County Superior Court, Assistant Presiding Judge Steven M. Gervercer, denied a motion by the State Water Contractors (Water Contractors) to disqualify Judge Stephen P. Acquisto, who has been presiding for more than two years over ten coordinated cases challenging the Department of Water Resources’ (DWR) approvals of the Delta Conveyance Project (DCP) under the California Environmental Quality Act, Delta Reform Act and other statutes, and two other related cases. The cases had been pending for nearly two years when the Water Contractors, proponents of the Delta tunnel, moved to intervene. Petitioners, including all five Delta Counties, North, Central and South Delta Water Agencies, Stockton, Sacramento Area Sewer District and a broad coalition of tribes and environmental and non-governmental organizations, opposed intervention on the grounds that the cases had progressed too far (including the June 2024 issuance of a preliminary injunction against DWR’s geotechnical activities and years of work on the administrative record) and intervention was likely to create confusion and delay.

Judge Acquisto nevertheless permitted intervention, but only after cautioning the Water Contractors at the hearing on the Water Contractors’ motion that the court “would not be open” to intervention that “is going to cause a lot of delay.” The Court emphasized: “We don’t want things coming in at the 11th hour and throwing a monkey wrench into the works.” The Water Contractors’ counsel responded, “Understood.” Less than two months later, after Judge Acquisto denied DWR’s motion to disqualify Somach Simmons & Dunn as counsel to Sacramento County, Sacramento County Water Agency, Sacramento Area Sewer District, and City of Stockton and issued the preliminary injunction, the Water Contractors filed their motion to disqualify Judge Acquisto, relying on an asserted right to exercise a peremptory challenge under Code of Civil Procedure section 170.6. Petitioners opposed the motion as untimely and the Court agreed, ruling:

“This 170.6 comes 51 months after the Notice of Assignment was issued assigning this matter to Judge Acquisto for all purposes. Intervenor-Respondents did not provide any admissible evidence to establish that they were unaware of the assignment during this time period. At the hearing on the motion to intervene, Judge Acquisto expressed his concern regarding undue delay of this CEQA action. The representations made by all parties at the hearing on intervention reasonably led the Court to understand permissive intervention would not ‘throw a wrench into the works.’ Yet, Intervenor-Respondents seek to do just that by using permissive intervention and section 170.6 as a vehicle for belated forum shopping.”

With this ruling, the consolidated cases will continue before Judge Acquisto. DWR continues to prepare the administrative record for the cases and has represented that it anticipates completing the record in May 2026. Completion of the record by DWR will trigger deadlines for potential motions regarding the record contents, followed by briefing on the merits, which likely will not commence before fall 2026. Separate litigation filed by DWR attempting to validate its 2025 approval of bond resolutions to finance the DCP is currently pending before Judge Kenneth C. Mennemeier. That case has been stayed while DWR unsuccessfully sought Supreme Court review and depublication of the Third District Court of Appeal decision invalidating DWR’s 2020 Delta tunnel bond resolutions.

For questions regarding the ruling and the DCP litigation, contact:

• Kelley M. Taber, ktaber@somachlaw.com

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