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Water Rights Litigation
When litigation is the best course, our water litigators combine decades of experience representing our clients before State and Federal courts and administrative boards to achieve success.
Beyond their litigation skills, our attorneys understand water – they are equally comfortable exploring a computer model depicting a groundwater basin’s cones of depression and deposing a biologist on critical species habitat. Our litigators know the financial and political costs and risks of litigation, as well, and can realistically counsel clients about strategic alternatives when litigation may not make sense.
Water litigation nearly always entails more than purely water rights. It also requires in-depth expertise in areas as diverse and intricate as the Endangered Species Act, the National Environmental Policy Act, the California Environmental Quality Act, the Administrative Procedures Act, and any number of other areas, such as Proposition 218 assessments. Our litigators have extensive experience in these areas, often at both the trial and appellate levels.
Selected Experience
- Delaware Tetra Technologies, Inc. v. County of San Bernardino; Center for Biological Diversity v. County of San Bernardino. Downey Brand attorneys serve as lead counsel for the County in defense of six coordinated actions challenging the Cadiz Groundwater Conservation, Recovery and Storage Project under CEQA and the county’s Desert Groundwater Management Ordinance.
- San Francisco Baykeeper v. California State Lands Commission. Our water litigators represent leaseholders in an action challenging the EIR for sand mining operations in San Francisco Bay, Suisun Bay, and the western Delta. This action alleges claims under CEQA and the common law public trust doctrine.
- Pacific Coast Federation of Fishermen’s Associations (PCFFA) v. Gutierrez, et al. Downey Brand served as trial counsel to the Tehama-Colusa Canal Authority in a successful defense against Endangered Species Act challenges to TCCA’s Central Valley Project water diversions.
- Delaware Tetra Technologies, Inc. v. County of San Bernardino; Center for Biological Diversity v. County of San Bernardino. Downey Brand attorneys serve as lead counsel for the County in defense of six coordinated actions challenging the Cadiz Groundwater Conservation, Recovery and Storage Project under CEQA and the county’s Desert Groundwater Management Ordinance.
- San Francisco Baykeeper v. California State Lands Commission. Our water litigators represent leaseholders in an action challenging the EIR for sand mining operations in San Francisco Bay, Suisun Bay, and the western Delta. This action alleges claims under CEQA and the common law public trust doctrine.
- Pacific Coast Federation of Fishermen’s Associations (PCFFA) v. Gutierrez, et al. Downey Brand served as trial counsel to the Tehama-Colusa Canal Authority in a successful defense against Endangered Species Act challenges to TCCA’s Central Valley Project water diversions.
- Natural Resources Defense Council (NRDC) v. Salazar. The firm served as trial counsel and currently serves as appellate counsel to a major group of Sacramento River Water Rights Settlement Contractors against Endangered Species Act challenges to the Contractors’ CVP renewal contracts and their historic water rights.
- City of Chowchilla v. California Department of Corrections and Rehabilitation. Downey Brand’s water attorneys successfully defended the Department against a CEQA challenge to its prison conversion plan.
- Santa Maria Valley Water Conservation District v. City of Santa Maria, et al. Downey Brand served as litigation counsel for a water conservation district in a basin adjudication involving claims of prescriptive rights and basin management and water storage issues arising out of importation of State Water Project water.
- City of Santee v. County of San Diego. The firm served as counsel to the California Department of Corrections and Rehabilitation in the first case to successfully defend preliminary planning efforts against a CEQA challenge in the wake of the California Supreme Court’s decision in Save Tara v. City of West Hollywood.
- P.G.& E. v. SMUD. The firm served as lead CEQA litigation counsel for the Sacramento Municipal Utility District, successfully defending PG&E’s challenge to SMUD’s Yolo County annexation.
- Orradre Ranch v. Monterey County Water Resources Agency. Downey Brand served as litigation counsel for the county water agency in defense of claims relating to basin and facilities management issues and related Prop. 218 assessment issues.
- San Benito County Water District v. Del Piero. The firm represented a developer in this action brought by a county water district to enjoin pumping and export of water from groundwater basin alleged to be in overdraft. The case was argued before Second District Court of Appeal.
- In re Adjudication of Waters of Putah Creek Stream System. Downey Brand represented a group of 35 agricultural landowners in this action to adjudicate rights to a stream system and hydraulically connected groundwater basin.
- Big Bear Municipal Water District v. North Fork Water Company, et al. The firm represented a municipal water district in this action to modify a stipulated judgment adjudicating water rights in the upper Santa Ana River watershed and associated groundwater basin.
- Malacha Power Project, Inc. v. P.G.& E. Downey Brand served as litigation counsel for a private hydroelectric developer in an action against P.G.& E. involving “Standard Offer 4” power purchase agreement rights and related water rights disputes.
11 Attorneys
Christian L. Marsh
Christian L. Marsh
Partner / Executive Committee Member
Public agencies and private companies turn to Christian Marsh for advice on regulatory and land use entitlement issues governing real estate developments, ground and surface water supply projects, renewable and non-renewable energy facilities, mining operations and processing plants, and port and waterfront developments.
San Francisco 415.848.4830
Partner
San Francisco 415.848.4830
Rebecca R. A. Smith
Partner
Sacramento 916.520.5281
Announcements
10 related items-
October 29, 2021Rebecca Smith Named 40 Under 40 by Sacramento Business Journal
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August 20, 2021Downey Brand Partner Christian Marsh Named Best Lawyers® 2022 “Lawyer of the Year” for Natural Resources Law in San Francisco
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February 12, 2021Dave Cameron Selected to Water Leaders Class of 2021
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January 15, 2020Downey Brand Names Two New Partners
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November 15, 2019Meredith Nikkel Named 40 Under 40 by Sacramento Business Journal
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March 1, 2019Rebecca Smith Joins Board of Directors at Water Education Foundation
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January 1, 2019Downey Brand’s Sacramento Office Welcomes Brian E. Hamilton
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March 7, 2018Jay-Allen Eisen Receives the 2017 Anne K. Meline Award
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December 20, 2017Downey Brand Promotes Four New Counsel
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December 12, 2017Downey Brand Names Six New Partners
In the News
5 related items-
February 14, 2024PG&E’s Hesitation Casts Shadow on Eel-Russian River Diversion Plan
Mendocino County News -
March 19, 2023Who deserves a levee? The fight to save California communities from flooding
The Mercury News -
August 2019Litigation Logic: Interview with Attorney Melissa Thorme
The Rain Events Newsletter -
June 15, 2015Court Battles Loom Over California’s Senior Water Rights
KQED -
March 13, 2013Legal Battles Over California Water Supplies Set to Escalate With Final Bay-Delta Plan
Bloomberg BNA, Water Law & Policy Monitor
Speaking Engagements / Events
39 related items-
November 29, 2023Protecting Local Ratemaking Authority
ACWA 2023 Fall Conference & Exhibition -
November 2-3, 20232023 Water Law Institute
The Foundation for Natural Resources and Energy Law -
June 8-9. 2023California Water Law, Policy, and Management in This Time of Extremes
Argent Communications 37th Annual California Water Law & Policy Conference -
November 4-5, 20222022 Water Law Institute
Program Committee and Moderator, The Foundation for Natural Resources and Energy Law's 2022 Water Law Institute -
October 19, 2022Engineering with Nature: Role of Nature-Based Solutions in Flood Protection
Moderator, California Central Valley Flood Control Association's 2022 Flood Forum -
August 9-11, 2022Waves of Change: Water Resource Management and Infrastructure at the Turning Point
Speaker, National Association of Flood & Stormwater Management Agencies' Annual Meeting -
May 17 & 19, 2022California Water Management, Policy, and Regulation in This Time of Extremes
Argent Communications 36th Annual California Water Law & Policy Virtual Conference -
April 25, 2022California Water Rights, Supply and Quality Webinar
Speaker, HalfMoon Education Live Webinars -
April 21, 2022Waterside Chat
Panelist, Center for Land-Based Learning Event -
April 8, 2022Water 101 Workshop: The Basics and Beyond
Presenter, Water Education Foundation Workshop -
December 2, 2021AB 1234 Ethics Training
Presenter, ACWA 2021 Fall Conference -
May 5, 2021Riverflow and Instream Rights: Professor Paul Kibel in Conversation with Professor Karrigan Bork
Sacramento County Bar Association, Environmental Law Section -
April 19 & 21, 2021Water Rights, Policy, Regulation, and the Future under the New Administration
Argent Communications 35th Annual California Water Law & Policy Virtual Conference -
March 8, 2021Ethics of Water Law for Practitioners
Lorman Education Services Live Webinar -
January 30, 2021Innovations in Water Storage As A Response To Climate Change
2021 California Water Law Symposium, Climate Change: Adapting to a Warming Climate -
February 20, 2020Legal and Institutional Management Framework
Presenter, Water Education Foundation Water 101 Workshop -
December 3, 2019The New Rules of Professional Conduct: What Water Lawyers Need to Know
Speaker, ACWA Legal Briefing and CLE Workshop -
December 3, 2019Government Code Section 1090: How to Stay Out of the Headlines (and Out of Jail)
Moderator, ACWA Legal Briefing and CLE Workshop -
October 17-20, 201928th Annual Environmental Law Conference at Yosemite®
Presented by the California Lawyers Association -
September 5, 2019Floodplain Management and Endangered Species
Panelist, Floodplain Management Association's 2019 Annual Conference -
July 25-26, 2019SMGA and Groundwater Adjudications
Presenter, LSI Conference on Sustainable Groundwater Planning in California -
June 20-21, 2019Developments in Water Supply Regulation, Reporting, and Legislation
Argent Communications 34th Annual California Water Law & Policy Conference -
May 7-10, 2019An Introduction to the Laws Governing the Bay-Delta: All the Acronyms You Need to Know, and What They Mean
Co-panelist, ACWA 2019 Spring Conference & Exhibition -
February 13, 2019Groundwater Law and Hydrology
Co-Instructor, UC Davis Extension -
December 6, 2018Water Pressures, USA Rice’s Sustainability Theater
Co-Presenter, 2018 USA Rice Outlook Conference -
June 11-12, 2018Water Projects, Rights and Management in the Era of Changing Supply
Co-Chair and Presenter, Argent Communications 33rd Annual California Water Law & Policy Conference -
May 8, 2018Water Rights and the ESA: How Do ESA-imposed Restrictions on Water Management Affect the Exercise of a State Water Right?
Moderator, ACWA's 2018 Legal Affairs Committee CLE Workshop -
October 26-27, 2017Too Much Water Too Fast: Conjunctive Management of Ground and Surface Water in Wet Periods
Presenter, Law Seminars International 5th Annual Conference on Tribal Water Law in California -
October 3, 2017Groundwater Rights: Management, Regulation, and Exercise
Presenter, HalfMoon Education Seminar on California Water Laws, Regulations and Recent Developments -
September 22, 2017Sustainable Groundwater Management Act (SGMA) Update
Moderator, Bay Planning Coalition Annual Energy and Water Nexus -
June 12-13, 2017California’s Water Law, Policy and Regulation: Coping with Drought, Floods and the New Federal Administration
Argent Communications 32nd Annual California Water Law & Policy Conference -
June 12, 2017A Local Perspective on Aging Flood Control Infrastructure
Presenter, Argent Communications 32nd Annual California Water Law & Policy Conference -
June 12, 2017California WaterFix: An Adventure in Administrative Law
Presenter, Argent Communications 32nd Annual California Water Law & Policy Conference -
June 12, 2017Financing SMGA Implementation: Navigating the Prop. 218 Minefield
Presenter, Argent Communications 32nd Annual California Water Law & Policy Conference -
February 9-10, 2017Cal WaterFix and Proposed Delta Tunnels
Presenter, CLE International Western Water Law Conference: Doctrine & Practice - Drought & Deals -
February 8-10, 2017Sustainable Groundwater Management Act Update
Panelist, Urban Water Institute's Spring Water Conference -
February 2-3, 2017Legal and Institutional Management Framework
Presenter, Water Education Foundation Water 101 Workshop -
September 15-16, 2016Ethical Considerations for Water Agency Attorneys in SGMA’s Brave New World
Co-presenter, ACWA 2016 CLE Conference -
November 15-18, 2015Recent Developments in the Regulation of Streams and Surrounding Resources
Presenter, CalCIMA 2015 Education Conference
Legal Alerts
11 related items-
August 31, 2022U.S. EPA Pushing Ahead to Designate PFOA and PFOS as Superfund Hazardous Substances
Environmental Law -
June 29, 2022Can PFAS Chemicals in Tenths or Even Hundredths Parts Per Trillion Present a Health Risk?
Environmental Law -
May 4, 2020Twenty-Two Environmental Groups and Nineteen Jurisdictions File Suit in Three District Courts Challenging The 2020 WOTUS Rule
Environmental Law -
April 23, 2020After Months of Delay The 2020 WOTUS Rule is Finally Published, Ensuring the California Regulated Community Receives No Relief Associated with the Rule’s Bright Lines and Clarifications
Environmental Law -
December 4, 2017California Supreme Court Confirms Certain Groundwater Pumping Charges are Outside Scope of Prop 218
Water Law -
July 24, 2017WaterFix EIR Certification and NOD Client Alert
Water Law -
July 15, 2014Sacramento River Settlement Contractors Ask U.S. Supreme Court to Review Scope of Endangered Species Act
Water Law -
August 2013Ninth Circuit Issues New Ruling in LA County Flood Control Case Contradictory To Its Own Earlier Rulings, Resulting in Compliance Uncertainty
Environmental Law -
August 2013State Water Board Solicits Comments on “Final Draft” Industrial Storm Water General Permit
Environmental Law -
January 9, 2013U.S. Supreme Court Reverses Ninth Circuit and Reaffirms Water Transfer Precedent in Los Angeles County MS4 Clean Water Act Case
Environmental Law -
October 2012U.S. Fish and Wildlife Service Proposes Delisting Valley Elderberry Beetle
Water Law
Publications
50 related items-
November 2023U.S. District Court Dismisses Constitutional Challenges to Curtailments on Deer Creek and Mill Creek, but Allows Related Challenges Against California Department of Fish and Wildlife to Proceed
California Water Law & Policy Reporter, Volume 34, Number 2 -
November 2023EPA Issues New Clean Water Act Section 401 Water Quality Certification Rules to Expand Authority of States and Tribes and Clarify Certification Procedures
Environmental, Energy, & Climate Change Law and Regulation Reporter, Vol. 4, Number 2 -
June 2, 2023Hurdles Remain for Colorado River Agreement
Daily Journal -
May 2023California Court of Appeal Upholds State Water Resources Control Board’s General Waste Discharge Requirements in WQO 2018-0002
California Water Law and Policy Reporter, Volume 33, Number 8 -
February 2023California Tribes and Environmental Organizations File Civil Rights Complaint and Petition for Rulemaking with EPA for Bay-Delta Water Quality Standards
California Water Law & Policy Reporter, Volume 33, Number 5 -
November 2022Ninth Circuit Finds no Waiver of California’s Water Board’s Section 401 Certification Authority–The Latest in the Battle of Authority to Regulate Federal Hydropower Projects
Western Water Law & Policy Reporter, Volume 27, Number 1 -
September 2022Environmental Organizations File Lawsuit Challenging the National Marine Fisheries Service’s Approvals of Enhancement of Survival Permits for Shasta River Landowners
Environmental, Energy & Climate Change Law and Regulation Reporter, Volume 2, Number 11 -
July 2022U.S. Senators Introduce Financial Assistance Bill to Provide Additional Funding for Water Projects in the West
California Water Law & Policy Reporter, Volume 32, Number 10 -
June 2022California Department of Water Resources Releases Draft Update Central Valley Flood Protection Plan
California Water Law & Policy Reporter, Volume 32, Number 9 -
June 2022State Water Resources Control Board Conducts Public Workshop on Potential Impacts of Forthcoming Efficiency Standards on Local Wastewater Management
California Water Law & Policy Reporter, Volume 32, Number 9 -
May 2022Environmental Interest Groups Challenge Groundwater Sustainability Plans for the Butte, Colusa, and Vina Subbasins
California Water Law & Policy Reporter, Volume 32, Number 8 -
May 2022State Water Resources Control Board Approves Temporary Urgency Change Petition for State Water Project and Central Valley Project
California Water Law & Policy Reporter, Volume 32, Number 8 -
November 2021Water Agencies File Lawsuits Challenging State Water Board’s Sacramento-San Joaquin Curtailment Order
California Water Law & Policy Reporter, Volume 32, Number 2 -
October 2020The California Supreme Court Decides ‘Protecting Our Water and Environmental Resources v. County of Stanislaus,’ Finding Groundwater Well Permits are Discretionary, Now and Then
California Water Law & Policy Reporter, Volume 31, Number 1 -
September 7, 2020FERC Order Requires PacifiCorp to Remain on for Klamath Dam Removals
Argent Communications Group -
September 7, 2020Council on Environmental Quality Publishes Final Rule Updating NEPA’s Implementing Regulations
Argent Communications Group -
July 2020Reclamation Releases Environmental Document for Repair of Friant-Kern Canal
California Water Law & Policy Reporter, Volume 30, Number 10 -
July 2020Court Finds Delta Plan Valid Despite Lack of Enforceable Numeric Compliance Targets
California Water Law & Policy Reporter, Volume 30, Number 10 -
June 2020U.S. Supreme Court’s New Discharge to Groundwater Decision is County of Maui Raises More Questions than it Answers
California Water Law & Policy Reporter, Volume 30, Number 9 -
May 6, 2020California Department of Fish and Wildlife Issues Incidental Take Permit for Long-Term Operations of the State Water Project
Argent Communications Group -
May 2020James Irrigation District Sues Westlands Water District Over Mendota Pool Group 20-Year Exchange Program
California Water Law & Policy Reporter, Volume 30, Number 8 -
April 2020Class Action Challenges Public Agencies’ Retail Water Rates Under Proposition 218
California Water Law & Policy Reporter, Volume 30, Number 7 -
April 2020Fifth Appellate District Holds Kern County Oil and Gas Activity Ordinance Invalid
California Water Law & Policy Reporter, Volume 30, Number 7 -
March 2020Tenth Circuit Affirms U.S. Army Corps of Engineers’ Lack of Discretionary Authority to Operate Dams Along the Rio Grande Under the Endangered Species Act
California Water Law & Policy Reporter, Volume 30, Number 6 -
March 2020U.S. EPA and the Corps Release Waters of the United States Rule that Closely Adheres to Justice Scalia’s Rapanos Opinion—But Due to California’s New Wetlands Program, Provides Little Relief to the State Regulated Community
California Water Law & Policy Reporter, Volume 30, Number 6 -
February 2020Court Declines to Address Issue of Future Prescription in Appeal to Santa Maria Groundwater Adjudication
California Water Law & Policy Reporter, Volume 30, Number 5 -
February 2020Environmental and Fishing Organizations Challenge Approval of Grasslands Bypass Project Under State and Federal Law
California Water Law & Policy Reporter, Volume 30, Number 5 -
January 2020District Court Holds U.S. Army Corps is Not Obligated Under the Clean Water Act or Other Laws to Dredge Channels on Annual Basis
California Water Law & Policy Reporter, Volume 30, Number 4 -
January 2020Federal Circuit Determines CVP Restoration Fund Payments Must Be Proportionately Assessed to Water and Power Customers
California Water Law & Policy Reporter, Volume 30, Number 4 -
February 1, 2019California’s Public Trust Doctrine Draws Attention in the Courts
Legal Notes, Western City -
October 1, 2018Federal Government and Center For Biological Diversity Reach Settlement over ‘Wild And Scenic’ Rivers
Argent Communications Group -
July 2018Adjudicating Groundwater: A Judge’s Guide to Understanding Groundwater and Modeling
The National Judicial College, Dividing the Waters -
Spring 2017California WaterFix: A Snapshot of the SWRCB Water Rights Change Hearings
Environmental Law News, Vol. 26, No. 1 -
March 2017Preparing for Sustainable Groundwater Management: A Review of Groundwater Recharge
California Water Law & Policy Reporter, Volume 27, Number 6 -
February 2017Let’s Get Physical—Water Rights, Takings, and the Endangered Species Act
California Water Law & Policy Reporter, Volume 27, Number 5 -
December 2016A Compendium of California’s Sustainable Groundwater Management Act
Provided by Downey Brand's Water Law Practice -
Fall 2016California Groundwater Management: Laboratories of Local Implementation or State Command and Control?
Environmental Law News, Vol. 25, No. 2 -
November 2016Governor Brown Approves Assembly Bill 2551, Which Broadens Public Contracting Options for Surface Water Storage Projects
California Water Law & Policy Reporter, Volume 27, Number 2 -
May 2016Still Waiting for a Federal Response to the Drought: A Legislative Update
California Water Law & Policy Reporter, Volume 26, Number 8 -
December 2015Does Every Drop Really Count? An Inconsistent Accounting of California’s Water Supply
California Water Law & Policy Reporter, Volume 26, Number 3 -
November 2015Union of Concerned Scientists Proposes Best Practices to Achieve Goals of the Sustainable Groundwater Management Act
California Water Law & Policy Reporter, Volume 26, Number 2 -
August 5, 2015Calif. Drought Prompts Bout Among Regulators And Farmers
Law360 -
August/September 2015A Federal Response to the Drought – Three Bills Pending in Congress
California Water Law & Policy Reporter, Volume 25, Number 11 -
June 2015Environmental Groups File Suit Against San Francisco Challenging Hetch Hetchy Reservoir
California Water Law & Policy Reporter, Volume 25, Number 9 -
April 2015U.S. Bureau of Reclamation Finds No Significant Impact for Trap and Haul Operation in Conjunction with San Joaquin River Settlement Agreement
California Water Law & Policy Reporter, Volume 25, Number 7 -
March 2015State Water Resources Control Board Partially Approves Temporary Changes to the State Water Project and Central Valley Project Water Rights Permits
California Water Law & Policy Reporter, Volume 25, Number 6 -
February 2015Ninth Circuit Upholds Biological Opinion Regarding Impacts of Central Valley Project and State Water Project Operations on Salmonid Species
California Water Law & Policy Reporter, Volume 25, Number 5 -
April 15, 2013When All You Have is a Hammer: Scientific Uncertainty and Bay-Delta Policy, 1995 to Present
ABA Natural Resources & Environment, Vol. 27, No. 4 -
January 2010The Looming Conflict Between Low Impact Development and the Water Rights System
ABA Trends, Vol. 41, Issue 3 -
April 2004Will New Flood Case Mean a Flood of Damages Paid to a Flood of Plaintiffs? Supreme Court Denies Review of Paterno Decision
California Water Law & Policy Reporter, Volume 14, Number 7