On Monday, February 9, 2026, Administrative Hearing Officer Nicole Kuenzi denied Somach Simmons & Dunn’s motion to stay the Delta Conveyance Project water rights hearing pending resolution of DWR’s disqualification motion in Sacramento Superior Court. The hearing will continue as scheduled, with most of the protestants’ rebuttal case likely to conclude before the March 20 court hearing on DWR’s motion.
But the more revealing development came from DWR itself. In a February 10 email to the Delta Stewardship Council opposing a similar stay request, DWR Staff Counsel Chris Butcher confirmed what many suspected: DWR’s conflict claim is selective.
A Conflict That Stops at the Courthouse Door
Butcher wrote that DWR’s disqualification motion “only concerns Somach’s ability to represent its clients in the coordinated CEQA litigation and does not affect ongoing administrative proceedings.”
Read that again. DWR filed 5,000 pages of briefing in Superior Court asserting that a Somach attorney’s prior work for DWR creates a conflict for matters “substantially related” to the Delta Conveyance Project. DWR’s July 2025 letter to Somach demanded information about the attorney’s involvement in over a dozen DCP-related matters: litigation, appeals, legislative work, even audit requests.
But according to DWR’s own counsel, this sweeping conflict “does not affect ongoing administrative proceedings.”
Either the conflict is real and applies everywhere the Delta Conveyance Project is at issue, or it’s a strategic tool that applies only where DWR chooses to assert it. Butcher just confirmed it’s the latter.
Who Is Seeking Delay?
Butcher’s email to the Delta Stewardship Council characterized Somach as seeking “to delay” the proceedings. This framing is audacious.
DWR first raised the conflict allegation in April 2025. The Administrative Hearing Officer gave DWR a choice: file a disqualification motion promptly, or waive. DWR chose to waive. Ten months later, DWR filed its disqualification motion in Superior Court, timed to coincide with the most demanding phase of the water rights hearing and the Delta Stewardship Council’s scheduled appeal hearing.
DWR created this situation. Somach is responding to it.
The Timing Is Not Coincidental
Consider what Somach’s attorneys are being asked to handle simultaneously:
DWR’s rebuttal phase in the water rights hearing, including cross-examination on thousands of pages of technical testimony, and preparation of their own parties’ rebuttal witnesses and testimony.
The Delta Stewardship Council hearing of appeals of DWR’s certification of consistency with the Delta Plan, originally scheduled for February 26-27 (and now potentially subject to its own procedural complications).
Defense of DWR’s disqualification motion, which requires detailed factual analysis of what work the attorney at issue actually performed. This is a “fact and legal specific analysis” that demands substantial attorney time.
The same attorneys are responsible for all three. The timing forces Somach to fight on multiple fronts during the most critical phase of each proceeding.
The AHO’s Ruling
Hearing Officer Kuenzi denied the stay, and her reasoning cited limits on DWR’s strategy. She noted that her finding of waiver by DWR in May 2025 was comprehensive: covering “all objections based on the alleged conflict to SSD’s participation in this hearing, evidence offered or elicited during cross-examination in this hearing by SSD, evidence offered or elicited during cross-examination in this hearing by another party coordinating with SSD, evidence developed in this hearing and offered in some other proceeding, and any final order adopted by the Board.”
However, the AHO also signaled she would likely grant a stay if the court does disqualify Somach, to allow parties to address the ramifications. But the hearing continues for now.
Questions of Standing and Waiver
The AHO’s May 2025 ruling anticipated one concern: could other parties raise the conflict issue? She concluded that under California law, standing to seek disqualification based on a former client relationship is “generally limited to parties who can demonstrate a direct attorney-client relationship or a duty of confidentiality.” This standing requirement, she noted, “protects against the strategic exploitation of the rules of ethics and guards against improper use of disqualification as a litigation tactic.”
Based on this, the AHO found that “no other party to this proceeding would have standing to object to SSD’s participation in this proceeding, any evidence developed in this proceeding, or any final order issued by the Board, based on the alleged conflict.” The State Water Contractors had no attorney-client relationship with Somach or with the attorney’s former firm.
But the AHO hedged: “To the extent that any other party does have such a right, however, I similarly conclude that the right is waived if the party does not indicate in writing, before this hearing reconvenes, an intent to seek a remedy.” No party did so.
This creates two layers of protection: other parties likely lack standing to raise the conflict, and even if they had standing, they waived by not objecting before May 5, 2025.
But the critical question is whether these protections extend to collateral challenges on appeal. Could other parties argue that the Board’s eventual order is procedurally defective because it relied on evidence from counsel later found to be conflicted in a separate proceeding? That’s a different argument than a motion to disqualify, and it’s not clear the standing requirement would apply the same way.
Other parties would also have a ready response to any waiver claim: DWR never provided the details. In May 2025, DWR was waving its hands about a conflict without disclosing specifics. The 5,000-page Superior Court filing in January 2026, with detailed allegations about the attorney’s work, the list of affected matters, the professional conduct analysis, is the first time anyone saw the substance of DWR’s claims. How could other parties have meaningfully evaluated whether to object to something DWR hadn’t explained?
This is the record integrity uncertainty that a stay would have resolved. The hearing will proceed, the rebuttal phase will likely conclude before March 20, and the evidentiary record will be built. Whether that record is fully protected from later challenge remains an open question.
What This Reveals
DWR is pursuing a conflict claim in the one forum where it doesn’t feel a need to rush: Sacramento Superior Court, which is not influenced by the Governor. But DWR is simultaneously insisting the administrative proceedings continue at full speed before the State Water Board and Delta Stewardship Council.
If the conflict were genuine, DWR would want all proceedings paused while it is resolved. Instead, DWR wants the administrative proceedings to race forward while Somach’s attorneys are distracted defending against a disqualification motion in court.
Chris Butcher’s email made that strategy explicit. The conflict, according to DWR’s own counsel, “does not affect ongoing administrative proceedings.” It only affects the CEQA litigation where the courts will make the decisions.
A convenient conflict indeed.
