December 27, 2018

37th Water Law Conference

Roger Sims

For 37 years the American Bar Association’s Section of Environment, Energy, and Resources’ annual Water Law Conference has provided unmatched continuing education and networking opportunities for water law practitioners. Consistently drawing the top government, nonprofit, and private practitioners to speak on hot topics affecting the practice today, the annual Water Law Conference is not to be missed.

The 37th Water Law Conference, which will be held on March 25–27, 2019 in Denver, will take a fresh look at long-standing water law topics, and emerging topics of special concern to practitioners in all stages of their career in an exciting day-and-a half of CLE programming.

Sessions will include:

  • East, West, Colorado, and the Colorado River: 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.
  •  Impacts to Freshwater Resources from Drought and Sea Level Rise: 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 session will address such issues as the scientific concerns surrounding lateral salt water intrusion and the upwelling of deeper water with brackish characteristics, as well as reduction in freshwater recharge due to drought. 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 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 NJC and its Dividing the Waters program allows the Section to offer this resource to conference attendees.)
  • Walker River/Walker Lake Litigation: The Public Trust Doctrine in Nevada: This panel will explore the severe reduction of surface water area in Walker Lake and the competing theories of cause, as well as legal implications. The Public Trust Doctrine is a key provision in the debate surrounding the lake and the Walker River, even though Nevada is a prior appropriations jurisdiction for most purposes.
  • Litigating, Negotiating, and Implementing Tribal Water Settlements in the United States: 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. In addition to discussing the consequences of this landmark case, the panel will provide an update on ongoing efforts to establish and quantify tribal water rights through litigation and settlement efforts.
  • The Culverts Case—Interference with Tribal Fishing Rights by Government Storm Water Diversion and Treatment Systems: 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 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.
  • ETHICS: The Attorney-Client Privilege in the Twitter Era: Communications have become easier and easier, to the point that a “tweet” (short message) seems ordinary and very informal. However, once in writing, a tweet can become evidence and constitute a disclosure of client-confidential information. This panel will take a close look at this issue and related problems that arise when communication of client information is not carefully managed.
  • Interstate Disputes/U.S. Supreme Court Case Update: While interstate disputes 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. This panel will explore 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. The panel will also discuss how these cases may result in regulation or further litigation important to all water practitioners.
  • NPDES Permits for Discharges Carried by Groundwater: Is That a Thing?: The Clean Water Act regulates “Waters of the United States” 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.   

As you can see, this year’s Water Law Conference will be substantive and valuable to any water law practitioner. This year’s program will take place at the Grand Hyatt Denver, conveniently located in the heart of Denver with easy access to the city’s best of dining and entertainment. Join us March 25–27, 2019, for unbeatable networking opportunities, to participate in a joint public service project with attendees of the 48th Spring Conference, and to take advantage of everything the Mile High City offers.

Please make your reservations now and join us in Denver!

Roger Sims

Roger Sims is a partner in Holland & Knight’s Orlando, Florida, office. Mr. Sims chairs the firm’s Water Resources Team and practices in the areas of water resources, environmental, and land use law. He deals with many governmental agencies on a regular basis, including the state’s Water Management Districts. He has practiced before water regulators for more than 40 years and has experience with rule development, permitting, and third-party challenges. Mr. Sims is the planning chair for the 37th Water Law Conference.