Creating the Current in California Water Law: Downey Brand’s Kevin O’Brien

January/February 2003

Sacramento Lawyer

Like all legal specialties, water law looks to the uninitiated like an esoteric jumble. But unlike most other practices, water law looks an awful lot the same to its practitioners: an array of complex factual problems orbiting a nucleus of unanswerable legal questions. Law clerks and new lawyers at our firm quickly learn to shun the dark mystery dimension of concepts like “usalructuary rights” and head the other way when they see a water lawyer coming.

If you see Kevin O’Brien coming you might not suspect him of being so accomplished a practitioner of what, by ordinary lawyering standards, amounts to an occult art. After all, he seems normal enough. But without question O’Brien is in the vanguard of California water lawyers who in effect shape a strange body of law, one at the same time more rooted in medieval tradition and yet evolving faster and more significantly than any other. And this evolution, in turn, is a tightly woven strand in the nexus of forces pulling California into its future. What sort of stuff does it take to thrive in such a practice?

Any number of unique features distinguish water law and challenge its practitioners, but water law combines disciplines in a way that especially sets it apart. “Practicing water law in California is one-third law, one-third science and one-third politics,” O’Brien said. “A large part of what we do is try to move large bureaucracies in one policy direction or another. The top water lawyers in California are equally adept at both litigation and the political side of the equation.”

Politics and policy – in particular, the politics of growth – dictate the rapid evolution of water practice as it sprints to keep pace with social and demographic changes. Just ask O’Brien about water transfers.

“When I left Denver and began practicing in California in 1984, anyone who suggested the idea of a water transfer to a water district board was likely to be strung up to the nearest tree. Seventeen years later most water districts and farmers in the Sacramento Valley view water transfers as an important element of their business – a way to supplement revenues for a farm economy that has lagged in recent years.”

Working at the forefront of the burgeoning water transfer area, O’Brien not only writes and lectures on the subject, but has been instrumental in negotiating important transfers of Northern California water to the lower San Joaquin valley, including sales of “conserved” water – supplies that result from improved techniques for managing agricultural water uses. These transactions foreshadowed deals of such momentous proportions as the pending transfer of conserved water by Imperial Irrigation District to the City of San Diego, a means of preserving the future of an entire metropolis that would have been unimaginable only a few years ago.

“The key is to structure these deals so that both regions–the transferor and the transferee–benefit.” O’Brien said, “The buyers are smart enough to recognize that they cannot propose a water transfer deal that in any way resembles the Owens Valley scenario, in which the City of Los Angeles stripped the land of its water rights for wholesale export to L.A.”

In many ways, this “win-win” approach signals a relaxation of the long-standing competition among various interests well-known as California’s “Water Wars.” Increasing public awareness of water issues and the CalFed program of cooperation among the numerous water-regulating public agencies are two developments that have created financial resources (such as the recently passed Proposition 50 which authorized the sale of bonds for water projects) and water management tools that help parties to negotiate, rather than litigate, water issues. In addition, many of the Bay-Delta water rights issues addressed by the State Water Resources Control Board’s Decision-1641 (which establishes in-stream flows to preserve Bay-Delta resources) have been negotiated to resolution rather than litigated – a staggering achievement, one in which O’Brien has played a significant part on behalf of Sacramento Valley interests, considering the magnitude of the issues and the huge cost of the litigation alternative.

Yet, as his practice illustrates, the very means of achieving solutions on some fronts seem to contain the seeds of future conflict in other areas. For instance, as the new commerce of “moving” water increasingly captures California’s entrepreneurial imagination, new challenges arise. For this reason, O’Brien has also litigated on behalf of water rights holders who seek to preserve the future of their water supplies against what some see as an increasing threat of unmanaged water exportation. This sort of threat, along with the acute tension between California’s growing population and limited water resources, portend a resurgence of conflict in California’s water future – conflict that typifies water law as an area without reliable answers to very critical questions.

“I think we are going to see a lot more groundwater adjudications, a good example of the law of unintended consequences at work,” he said. “The Kuehl Bill (SB 221), which took effect this year, requires developers to demonstrate an adequate water supply for large new residential projects. This is a very difficult requirement to satisfy from groundwater resources because groundwater rights are (absent a court adjudication) unquantified and amorphous. I have had lawyers who represent municipal water suppliers in large, growing areas tell me their strategy for Kuehl Bill compliance is adjudication!”

Not good news – O’Brien and Downey Brand play a major role in one of the two groundwater adjudications pending in California, the Santa Maria Valley adjudication involving more than 600 parties. These are conflicts that truly open into the “mystery dimension” of water law and demonstrate the timeless principle that absolute litigation – the kind that involves everybody who could possibly be involved – confuses absolutely.

“I liken a groundwater adjudication to my experience coaching 13 year-old boys in soccer–it is chaotic, uncontrollable and has a definite hormonal element,” O’Brien said.

Apparently, the coaching has paid off, because Kevin is undoubtedly up to the task. “I’ve seen it happen time and time again,” says a Downey Brand colleague, “Kevin sits quietly and lets everyone wear themselves out arguing, then he speaks up and says something so profoundly on point everybody just shuts up and nods.” Another colleague remarks, “Kevin has a rare ability to say a lot by sometimes saying very little.”

Leaders in the field concur. “Kevin never takes an approach that tends to antagonize other parties’ representatives or to personalize any aspect of a problem,” says Bob Maddow of the Walnut Creek firm, Bold, Poltsner, Maddow, Nelson & Judson. “His focus is on the issues at the core of the matter, and then on the interests of the parties.”

O’Brien draws the same praise from other top-notch opponents. Best, Best and Krieger’s Greg Wilkinson, of Riverside, observes, “Kevin is inclined to look for a solution to problem, first, and to litigate, second – something that more attorneys would do well to emulate. He advocates principled positions that reflect the law and are intended to achieve a solution for ALL the parties – not just his clients.”

“If I could pick anyone to be on the ‘other side’ of an issue, I would choose Kevin,” said Anne Schneider, of Sacramento’s Ellison and Schneider. “I trust his judgment, his thoroughness, and his commitment to reaching fair and practical results. He is a good friend.”

It takes a rare perspective on lawyering to achieve this kind of respect. “There’s a growing awareness of the value of water in California, people are willing to fight over the resources,” O’Brien said. Obviously, lawyers can help people fight – but there’s an alternative! “I like to think that at Downey Brand we are problem solvers, and I attribute that to the culture that was established within our firm by people like (founder) Stephen Downey and (of counsel) George Basye.”

But this perspective takes more than riding a tradition, however noble. It relates to the deeper understanding good lawyers develop that the job is never just about the law, and in water practice it is seldom just about the water. “I started out in Colorado, handling water rights hearings in little towns like Alamosa and Greeley, where water judges rank right up there in status with the local sheriff and the high school football coach.” O’Brien said. “If I hadn’t been a lawyer I would have been a roving correspondent – the guy sent to cover the hearing in water court in Alamosa, where 300 people pack the courtroom because their water represents their way of life. Great stuff!”

Indeed, the stuff it takes.