37th Water Law Conference

Description:

You are invited to join old and new friends for a dutch-treat dinner. Reservation have been made at several restaurants in the downtown Denver area, near the conference hotel. Each dinner will be organized by a Section leader. This is a great opportunity to meet new people, eat great food, and have lively discussions. More information to come on how to register.

Description:

Don’t miss this discussion on the foundations of water law, with insights for both new and experienced practitioners. This session will summarize the basics as well as provide informative updates on topics with potentially broad applicability in the era of increasing water demand and less reliable water supplies. Panelists will consider the law governing the Colorado River and features of Colorado’s unique form of prior appropriation that provides a valuable model on several issues facing all prior appropriation states and states struggling with groundwater and stream water interactions.

Moderator:
Bennett L. Bearden, Chief of Staff, Special Assistant to the State Geologist, Geological Survey of Alabama, and Associate Research Professor, The University of Alabama, Tuscaloosa, AL

Speakers:
Robert Abrams, Professor of Law, Florida A&M University College of Law, Orlando, FL
Jennifer Crandell, Special Counsel Attorney General of Nevada, Colorado River Commission of Nevada, Las Vegas, NV
Sarah Klahn, Somach, Simmons, and Dunn, Denver, CO

Description:

Every water practitioner needs to understand the principles of interstate water apportionment, including equitable apportionment and enforcement by the U.S. Supreme Court, compacts, and apportionment by Congress. Over the past decade, the Supreme Court has accepted an increasing number of interstate lawsuits under the Court’s original and exclusive jurisdiction. While these cases pit one state against another, they take place within a wider context of state and federal regulation and litigation, including state administration and federal water-supply management. The panel will analyze that context in connection with three pending Supreme Court cases: Florida v. Georgia, an equitable apportionment case over surface water, Mississippi v. Tennessee, an equitable apportionment case over groundwater, and Texas v. New Mexico & Colorado, a case to enforce the Rio Grande Compact. Attendees will hear how these cases may result in regulation initiatives or further litigation.

Moderator:     
Greg Hobbs, Senior Water Judge, Colorado Courts, Denver, CO

Speakers:
Heather Elliott, Professor of Law, University of Alabama School of Law, Tuscaloosa, AL
Sandra Zellmer, Professor of Law, University of Montana School of Law, Missoula, MT

Description:

The Stevens Treaties, signed by several Pacific Northwest tribes in the mid-1850s, reserved tribal rights to fish “at all usual and accustomed grounds” in common with settlers. Interpretation of this provision has been subjected to litigation for over a century, including the 1905 U.S. Supreme Court case, United States v. Winans, and the Court’s affirmation of 1974’s Boldt Decision (United States v. Washington), which guaranteed tribes up to 50 percent of the region’s fisheries. The “Culverts Case” is the most recent sub-proceeding of United States v. Washington to reach the Supreme Court, affirming a federal court injunction requiring the State of Washington to remove or retrofit hundreds of road culverts blocking critical fish runs. Panelists and attendees will explore how the Culverts Case applies federal Indian law concepts to water quality and habitat protection—and consider how tribes might leverage off-reservation fishing and other treaty rights for greater water quality protection. Attendees will learn to apply concepts of federal Indian law and treaty interpretation to the broader context of matters in water quality and habitat protection.

Moderator:     
Ilene Munk, Foley & Mansfield, Portland, OR

Speakers:
Jay Geck, Deputy Solicitor General, Washington, Office of the Attorney General, Olympia, WA
Cassie Phillips, Director, Private Environmental Governance Initiative, Environmental Law Institute, Washington, DC
Ann E. Tweedy, Attorney, Muckleshoot Indian Tribe Legal Department, Auburn, WA

Description:

Sea level rise and drought are becoming major concerns to those dependent on groundwater or other freshwater resources. This panel will review the scientific issues and discuss the legal implications of dealing with gradual encroachment of saline water into aquifers providing fresh water for potable, agricultural, and other uses vital to the public health, safety, and welfare. This novel and important session will address such issues as the scientific concerns surrounding salt water intrusion and the upwelling of deeper water with brackish characteristics. Legal issues will be explored and planning for alternatives to the traditional sources now at risk will be discussed. This panel will offer attendees a unique new tool for judges and litigants to make sense of groundwater science in litigation—the National Judicial College’s new Adjudicating Groundwater bench book. The Section’s collaboration with the National Judicial College and its Dividing the Waters program allows the Section to offer this resource to conference attendees.

Moderator:
Robin K. Craig, James I. Farr Presidential Endowed Professor of Law, University of Utah S.J. Quinney College of Law, Salt Lake City, UT

Speakers:

Greg Bengtson, Clark, Mize & Linville, Chtd, Salina, KS

Michael Sklash, Senior Hydrogeologist, Dragun Corporation, Farmington Hills, MI

Description:

Walker Lake in Nevada has decreased in size by more than 50 percent and volume by more than 70 percent principally due to appropriation and use in Nevada. A lawsuit by Nevada stakeholder’s dependent on Walker Lake asserts that the state’s public trust doctrine requires limitation of the rights of the appropriators. This case appears to reprise several key issues addressed in California’s well - known National Audubon (Mono Lake) case. In May 2018, the U.S. Court of Appeals for the Ninth Circuit certified the following question to the Nevada Supreme Court: “Does the public trust doctrine apply to rights already adjudicated and settled under the doctrine of prior appropriation and, if so, to what extent?” This panel will explore the Walker River/Walker Lake litigation and the issues it poses for the public trust doctrine in Nevada and the extent to which the outcome is likely to influence doctrine in other prior appropriation states. Based on the examples provided and an in-depth discussion, attendees will be equipped to critically analyze instances of appropriation and the effect of the public doctrine.

Moderator:
Barbara Cosens, Professor of Law, University of Idaho College of Law, Moscow, ID  

Speakers:
Gordon DePaoli, Woodburn & Wedge, Reno, NV
*Lisa Heki, U.S. Fish & Wildlife Service, Gardnerville, NV
Simeon Herskovits, Advocates for Community & Environment, Taos, NM

Description:

The U.S. Supreme Court’s November 2017 cert denial in Coachella Valley Water District v. Agua Caliente Band of Cahuilla Indians will have significant implications for both tribes and non-Indian stakeholders in groundwater-dependent basins throughout the United States. Outlining some of these potential impacts, an August 2018 article in Science estimated that more than 200 Indian tribes in the West have unresolved claims to groundwater, some of which involve lands in areas with significant concerns about groundwater quality. In addition to discussing the consequences of this landmark case, this panel will provide an update on ongoing efforts to establish and quantify tribal water rights through litigation and settlement efforts. Attendees will gain insight and understanding into issues of significance to tribes, as well as the challenges faced when implementing and enforcing both tribal water rights settlements and adjudicated tribal water rights.

Moderator:
Jeanne Whiteing, Attorney, Whiteing Law, Boulder, CO  

Speakers:
*M. Alexander Pearl, Director, Center for Water Law and Policy, Lubbock, TX
Stanley Pollack, Contract Attorney, Water Rights Unit, Navajo Nation Department of Justice, Window Rock, AZ
Vanessa Ray-Hodge, Sonosky, Chambers, Sachse, Mielke & Brownell, LLP, Albuquerque, NM

Description:

The Clean Water Act (CWA) regulates “Waters of the United States” (WOTUS) which by definition does not include groundwater. In 2018, two federal appeals courts held that discharges through groundwater hydrologically connected to WOTUS are subject to regulation under the CWA. The Ninth Circuit concluded that treated wastewater injected into wells and carried by groundwater to the Pacific Ocean after 84 days was “fairly traceable” to WOTUS. The Fourth Circuit found that a gasoline spill that continued to migrate from a repaired underground pipe break resulted in a “discharge” through soil and groundwater into adjacent wetlands and creeks. Both courts held that CWA groundwater jurisdiction is not limited to discharges of pollutants “directly” from point sources to WOTUS. These cases leave regulation ambiguous and pose substantial technical and regulatory challenges. This panel, from diverse perspectives, will discuss the current status of regulation and the challenges in implementing the case law while equipping attendees with practical knowledge to assist stakeholders.

Moderator:

Marcia Greenblatt, Principal, Integral Consulting, Inc., Louisville, CO

Speakers:

*John Fognani, Hayes and Boone, LLP, Denver, CO
Frank Holleman, Southern Environmental Law Center, Chapel Hill, NC

Description:

A panel of attorneys knowledgeable of the many ambiguities present in social media will tackle the difficult ethical challenges faced daily by attorneys. Whether working in private practice, as in-house counsel, in academia, government, or non-profit organizations, today’s attorneys face an expanding and myriad number of ways in which they can knowingly, and unknowingly, violate the ethical rules, simply by using social media. Panelists will reinforce safe practices and procedures to ensure ethical rules are not sacrificed during social media use.

Speakers:
Kevin Kinnear, Porzak Browning & Bushong LLP, Boulder, CO
Sylvia Quast, U.S. Environmental Protection Agency, Region 9, San Francisco, CA
Heather Welles, O'Melveny & Myers LLP, Los Angeles, CA

Description:

This year’s public service project will be a joint effort between participants of the 37th Water Law Conference and the 48th Spring Conference. A boxed lunch will be provided for all participants from 12:00 p.m. – 1:00 p.m. Transportation will be provided, departing the hotel promptly at 1:00 p.m. To volunteer for the public service project, sign up while registering.

Description:

Join us to catch up with old friends, become acquainted with new ones. This unique networking opportunity will include attendees of the 48th Spring Conference attendees.

Description:
Calculated with great care, the Section estimates that the average attendee’s participation will generate approximately one metric ton of carbon emissions. You can offset your carbon footprint by adding $20 to the registration fee. This will cover the cost of a one-ton carbon credit and help pay for tree plantings and public service projects! Contributions are tax deductible to the full extent allowed by law.

Description:
The Section strives to provide programming representing a unique depth of perspectives on all issues. We consistently work to include speakers on panels that represent tribal interests, NGO’s, and academics. To assist these speaker with the expense of attending conferences the Section offers a limitednumber of travel reimbursements. To assurethat the Section can continue to offer travel assistance to such speakers please considerdonating to our Program Support Fund. Donations are tax deductible to the full extent allowed by law. Make your donation of $25 (or more) when you register.