Tag: WaterFix


In Department of Water Resources Environmental Impact Cases (2022) 79 Cal.App.5th 556, the Third District Court of Appeal found that the trial court did not apply the correct legal standard in rejecting plaintiffs’ motions for attorney fees following litigation challenging California’s WaterFix project under CEQA and other laws. Plaintiffs relied on the state’s private attorney general statute (Code of Civil Procedure § 1021.5), asserting that they were successful parties under a “catalyst” theory because the litigation motivated the Department of Water Resources (DWR) to rescind the project approvals and decertify the EIR. The trial court denied the motions, finding that although plaintiffs achieved the primary objectives of their litigation, this was caused by a directive from Governor Newsom, not their lawsuits. The appellate court, however, found that it was error to treat the Governor’s directive as an “external, superseding cause” of DWR’s decision. Instead, the trial court should have considered whether plaintiffs’ lawsuit was a substantial factor in the Governor’s decision to change course regarding the WaterFix project. The court therefore reversed and remanded the matter for redetermination.


In 2013, DWR issued a draft EIR for the Bay Delta Conservation Plan project under CEQA. The plan aimed to improve California’s water supply infrastructure by constructing two 35-mile-long tunnels that would convey fresh water from the Sacramento River to pumping stations in the southern Sacramento–San Joaquin Delta. In 2015, DWR replaced that plan with the WaterFix project, which differed from the original in that it decoupled the habitat conservation component from the water conveyance elements. On July 21, 2017, DWR certified a final EIR, adopted findings, a statement of overriding considerations, and a mitigation monitoring and reporting plan, and approved the WaterFix project.

Numerous plaintiffs filed petitions for writ of mandates challenging the WaterFix project and EIR. The lawsuits sought to compel DWR to rescind the WaterFix approvals, decertify the EIR, and suspend development pending compliance with applicable laws. Plaintiffs alleged a variety of violations under CEQA, as well as under the Sacramento–San Joaquin Delta Reform Act of 2009, the public trust doctrine, and the California Endangered Species Act. Plaintiffs’ lawsuits were coordinated for trial.

In November 2018, Governor-elect Newsom expressed doubt over whether the WaterFix project could overcome its various legal challenges, and officially voiced his opposition to the project (as Governor) three months later. On April 29, 2019, he issued Executive Order No. N-10-19, which established his new “water resilience portfolio” policy and encouraged DWR to “inventory and assess” the “[c]urrent planning to modernize conveyance through the Bay Delta with a new single tunnel project.” Less than one week later, as litigation was ongoing, DWR decertified the WaterFix EIR, vacated its findings, and rescinded the project’s approvals. Consequently, the coordinated cases were voluntarily dismissed.

After the cases were dismissed, plaintiffs filed motions for attorneys’ fees, asserting that they were “successful” parties under the catalyst theory because the litigation motivated DWR to voluntarily provide the relief sought (namely, rescission of the project approvals, decertification of the EIR, and dismissal of the validation action). DWR opposed the motions, arguing that the decision to rescind project approval was based on the Governor’s Executive Order, not the litigation.

The trial court denied plaintiffs’ motions, agreeing that the relief was caused by the Governor’s directive rather than the lawsuits. Plaintiffs appealed.


The court of appeal agreed with plaintiffs that the trial court erred in treating Governor Newsom’s policy directive as an external, superseding cause of DWR’s actions. Although, as an agency within the executive branch, DWR was required to implement the Governor’s decision to shift from two tunnels to one, that did not mean that there was no connection between the lawsuits and the rescission of the WaterFix approvals and decertification of the EIR. Instead, the trial court should have asked whether the litigation was “a substantial factor” in the Governor’s decision.

The court suggested plaintiffs had presented evidence that the Governor’s decision was at least in part influenced by their lawsuits, such as his November 2018 statement that “‘I think if we walk down the path of two tunnels, we’re in litigation and no project.’” Plaintiffs also presented statements made by DWR’s director that the previous proposal might not have fully acknowledged and mitigated for impacts. The court of appeal held that, regardless of whether this evidence was sufficient to establish a causal relationship between the litigation and the Governor’s opposition to the WaterFix project, the trial court erred in refusing to consider this evidence.

The court of appeal also found error in the trial court’s refusal to consider plaintiffs’ argument that the chronology of events could raise an inference of causation, which it had rejected because EIR decertification was “expected.” The appellate court explained that even if the underlying project is abandoned or withdrawn, nothing in CEQA requires the lead agency to decertify that project’s EIR. Only when the previous environmental document is “wholly irrelevant” must the agency start anew. Further, nothing in the Governor’s Executive Order compelled DWR’s decertification and rescission, as it merely directed the agency to “inventory and assess”  the current plan “to modernize conveyance through the Bay Delta with a new single tunnel project.” Finally, in the wake of the Governor’s announced opposition, DWR’s attorneys advised the court that DWR could still proceed under CEQA using a supplemental or subsequent EIR—obviously contrary to the contention of inevitable decertification. Thus, because DWR’s decision to abandon the project was independently made, there was “a legitimate question as to why it made that choice.” And because the plaintiffs had properly relied on the chronology of events to raise an inference that the lawsuits had substantially motivated DWR’s decision, the burden had shifted to DWR to rebut that inference. The trial court’s refusal to consider plaintiff’s evidence was thus a prejudicial abuse of discretion.

—Griffin Williams