Downey Brand’s 75 Years of Water Law Practice: A History of Forging the Future

January/February 2003

Sacramento Lawyer

The history of the Sacramento Valley is in large measure the history of its water – harnessing it for beneficial uses and fending off its occasional fury. At each juncture in the long, arduous task of bridling this resource, water lawyers at Downey, Brand, Seymour & Rohwer LLP have played major roles, in every instance looking ahead to create both prime opportunities and essential protections.

Stephen Downey, one of the firm’s founders, laid the foundation; he was already deeply involved in water and flood control issues when the firm was founded in 1926. This period was but a few years removed from an era when planned and organized reclamation and flood control were barely thought of, and floods of incredible proportions routinely wiped out economic development. It was a time when armed landowners still patrolled their levees, such as they were, during flood season, wary of the downstream landowners who might try to create a levee “relief valve” by blasting a hole in an upstream levee.

Downey was a leader among those who first sought to bring saner measures to bear on these conditions. Tapped by the State Reclamation Board to serve as its counsel on flood control issues during the early 1920’s, Downey helped to establish the board as a genuine force in more broadly coordinated, public-interest flood control efforts. After forming Downey, Brand and Seymour in 1926 (Rohwer was to come later), Downey assisted in organizing the California Central Valley Flood Control Association in the same year. The association represented most of the reclamation and levee districts maintaining levees from Chico to Collinsville on the Sacramento River and was instrumental in promoting the completion, at last, of the federal Sacramento River Flood Control Project. This project, with the association’s support, provided the levees, weirs and bypasses that now protect the Sacramento Valley from the Sacramento River flood waters. Through the years, Stephen Downey’s firm has continued to nurture the association’s growth and progress; today the association is comprised of some 70 reclamation and levee districts, agencies and counties within the Central Valley, more than 25 of which Downey Brand has represented in its continuous involvement with flood control issues.

Stephen Downey and Harry Seymour, another of the firm’s original partners, worked during the depression years of the 1920’s and 1930’s with water and irrigation districts throughout the Sacramento and San Joaquin Valleys unable to meet bond obligations that many of those districts had undertaken to develop their irrigation systems. In another critical undertaking for Sacramento’s future, Downey, along with engineer Joseph Spink, organized the American River Flood Control District in 1929 to complete the construction of levees of the American River through the City of Sacramento, and to provide for their ongoing maintenance.

In establishing the foundation of Downey Brand’s water and natural resources practices, Stephen Downey was a leader on many fronts. His efforts aided in the promotion and authorization of Folsom Dam, and he spoke at its dedication. Downey was also very much involved in the promotion of the Oroville Dam by the State Water Project. He was instrumental, too, in the organization of the Sacramento Municipal Utility District, and represented SMUD in its successful action to acquire the PG&E facilities within the Sacramento area, and in the development of SMUD’s water rights.

The firm’s early achievements shaped and guided the development of the Sacramento Valley as water was captured and tamed. New challenges emerged as the federal Central Valley Project and, later, the State Water Project, came on line and effectively revolutionized the way water was distributed and, in several important ways, how water rights were conceived and allocated. In the 1950’s the firm represented the Sacramento River and Delta Water Association, which was formed in that decade to represent major water users on the Sacramento River from Colusa to Rio Vista in their negotiations with the U.S. Bureau of Reclamation for water rights settlement contracts. These contracts provided recognition by the United States of the prior rights of Sacramento River diverters and identified that portion of the water stored by the federal project which would be available to supplement those rights to the extent needed. These negotiations stabilized the available water supplies from the Sacramento River for four decades. George Basye, now counsel to the firm, negotiated many of these contracts and ultimately attended the final settlement of the contract dispute in the office of Interior Secretary Stewart Udail in 1963. Those water right settlement contracts are now up for renewal, and Downey Brand represents those same major water users in their continued efforts to protect the water rights on the Sacramento River, in the face of significant new competition for the resource and the ever-shifting concerns and priorities of the Federal government.

During the 60’s and 70’s, Downey Brand continued to force new alliances to secure water supply reliability for interests throughout the Valley. In the 1960’s, Downey Brand helped to organize the Delta Water Agency, originally formed to negotiate on behalf of Delta water users for a contract similar to the Sacramento River settlement contracts for the protection of Delta water users. In 1973, the Agency was replaced by three Delta water agencies: the North Delta Water Agency, South Delta Water Agency and the Central Delta Water Agency. Downey Brand formed the North Delta Water Agency, and continues to represent that agency, which includes the northerly 300,000 acres of the Delta. In 1981, Basye negotiated a contract between the North Delta Water Agency and the Department of Water Resources that assures water quality and quantity to all of the land within the north half of the Sacramento-San Joaquin Delta. This contract is quite literally unmatched anywhere, and over more than twenty years of changing State priorities and increasingly bitter competition for Delta water supplies the contract has, through negotiation and despite significant litigation, continued to assure the water supply for some of the most productive farm land in California.

The legacy of Stephen Downey and Harry Seymour’s achievements has been carried on and built upon by others, but especially George Basye. Basye has assumed the firm’s mantle of accomplishment in flood control and water rights law for 40 years. In the firm’s tradition of uniting interests and forming the vehicles for parties to accomplish common ends, Basye has organized 16 water districts, reclamation districts, and mutual water companies within the Sacramento Valley and Delta. On behalf of the American River Flood Control District and Reclamation District 1000, George, along with partner James Day, assisted in the development of the Sacramento Area Flood Control Agency, which includes these two districts along with Sacramento and Sutter Counties and the City of Sacramento. This agency has established a solid record of promoting flood protection for the Sacramento area, in the face of some unfortunate political obstacles that have hopefully only delayed but not prevented additional protection for Sacramento against the very serious threat of flooding from the American River.

Downey Brand continues to represent many dozens of reclamation, levee, water and irrigation districts, as well as mutual water companies, within the Sacramento Valley and Delta. In recent years, the firm has taken significant steps beyond the Sacramento region, along paths forged largely by David Lindgren (focusing on Colorado River issues and water transactions) and Kevin O’Brien (see accompanying article about O’Brien in this issue), and now represents major water interests, public and private, in the southern San Joaquin, along the Central Coast, in Southern California, in Nevada, and on the Colorado River. And the firm’s tradition continues with other partners in the water group, including Steven Saxton, who focuses on water and land use litigation, David Aladjem, specializing in groundwater as well as district and endangered species issues, and Scott Shapiro, who concentrates on federal water projects and water for development. Stephen Downey’s incomparable foundation continues to support a proud structure of expanding achievement in water law.