The week of February 23-27 presents attorneys representing Delta communities with an impossible calendar. The State Water Board’s Delta Conveyance Project water rights hearing has added February 23, 24, and 25 as hearing days. The Delta Stewardship Council has scheduled its appeal hearing on DWR’s certification of consistency with the Delta Plan for February 26 and 27—and has required that parties appear in person.
Many of the same attorneys represent protesting parties in both proceedings.
Baykeeper’s Request
Eric Buescher, counsel for San Francisco Baykeeper, wrote to the Administrative Hearing Officer requesting that at least two of the February 23-25 dates be removed from the water rights hearing calendar. His reasoning was straightforward: the attorneys involved in both proceedings face “substantial coordination and travel” requirements that week, and the burden would be “significantly easier and less burdensome” if overlapping days were eliminated.
Buescher noted that even with two days removed, eight hearing days would remain for the DWR/SWC rebuttal phase—almost certainly sufficient based on the time estimates and limits in the Tenth Amended Hearing Notice.
DWR’s Response
DWR’s General Counsel Ann Carroll responded that it was “premature” to remove any days until all cross-examination estimates were submitted. She added that “some protestants have exceeded their allotted times for cross-examination previously” and argued that “at minimum, one full day from the addition of February 23, 24, and 25 should be retained.”
DWR indicated it would “not oppose” removing extra days if the time estimates made clear there would be more than one—but only after all estimates were in.
Who Created This Conflict?
The scheduling collision is not an accident of bureaucratic calendars. DWR controls the timing of its own filings.
DWR submitted its certification of consistency with the Delta Plan on October 17, 2025—just hours after the Court of Appeal issued its opinion in the preliminary injunction appeal. That filing triggered the Delta Stewardship Council appeal process now scheduled for February 26-27.
DWR filed its motion to disqualify Somach Simmons & Dunn on January 23, 2026, nearly ten months after first raising conflict allegations in the water rights hearing. That motion, and Somach’s response, added procedural complexity during what was already the most demanding phase of the water rights proceeding.
The attorneys now being asked to appear at overlapping hearings in the same week are stretched thin because of choices DWR made about when to file.
Putting It on the Record
I wrote to the Hearing Officer as well:
Let the record reflect that DWR’s decision to file the Delta Conveyance Project Consistency [Determination] so that the hearing occurred concurrently with DWR’s rebuttal appears to have been intended to limit Protestants’ participation in this hearing.
There is no reason that more hearing days could not be added to the calendar to accommodate the schedule conflict, and it is not clear that there would be any significant slippage of the schedule.
The cumulative burden on Protestants with DWR’s concurrent filings of (1) the Delta Plan consistency determination; (2) a 5,000 page conflict of interest filing in Sacramento Superior Court against Somach Simmons & Dunn is significant.
The Bottom Line
Protestant attorneys are being asked to do more with less: more hearings, more procedural complexity, more travel. Meanwhile DWR notes that “some protestants have exceeded their allotted times.”
The question is not whether removing a few hearing days would inconvenience DWR. The question is whether a process can be fair when the project proponent’s filing choices create scheduling conflicts that burden the communities trying to participate.
