30th Annual. Water Law Conference. Exploring the Future of Water Law. February 22-24, 2012 Westin San Diego San Diego, CA

Transcription

1 30th Annual Water Law Conference Exploring the Future of Water Law February 22-24, 2012 Westin San Diego San Diego, CA

2 30th Annual Water Law Conference Exploring the Future of Water Law The Annual Water Law Conference turns 30! Our two-day program will address emerging national and international water issues against the backdrop of 30 years of water law. Leading academics, in-house counsel, NGO and government representatives, and practitioners will discuss the pressing water issues of our time. Is there a right to water, and, if so, how should it be considered in the law? How do we address aging water infrastructure and also finance new growth? How do the western and eastern U.S. water law issues converge and how can each region learn from the other? Additional program topics include tribal marketing of reserved water rights to nontribal entities, water management challenges when traditional climate models are no longer dependable, hydrofracturing, interstate water litigation over Georgia s Lake Lanier, disputes surrounding the Republican River, and the clash between Montana and Wyoming arising from a shift to more efficient irrigation systems, plus the Endangered Species Act and water, and ethics for water law practitioners. Conference Planning Co-Chairs: Kathy Robb Hunton & Williams LLP New York, NY Jonathan R. Schutz Mabey Wright & James PLLC Salt Lake City, UT Annual Section Sponsor Platinum Sponsor Conference Co-Sponsors: Chesapeake Bay Foundation Conference of Western Attorneys General Defenders of Wildlife National Wildlife Federation Native American Rights Fund Natural Resources Defense Council Trout Unlimited Western States Water Council About the ABA Section of Environment, Energy, and Resources The Section of Environment, Energy, and Resources is the premier forum for lawyers working in areas related to environmental law, natural resources law, and energy law. It represents more than 10,000 members with a wide range of professional interests. The Section is committed to providing members with opportunities to enhance professional skills, stay on top of current developments, and dialogue in these substantive areas. To learn more about Section committees and membership, visit

3 Schedule Wednesday, February 22, :00 p.m. 4:00 p.m. Public Service Project: Tree-planting in Balboa Park We will plant trees in Balboa Park, North America s largest urban park and located minutes from downtown San Diego. The park was ranked among the Best Parks in the World by the Project for Public Places in 2003 for its mixture of horticulture, art, and culture. Attendees are invited to join in this urban tree planting event as part of the management and maintenance of the park. Whether you are new to planting or have a green thumb, this event is an opportunity to contribute to the Section s One Million Trees Project. For more information on the Section s One Million Trees Project, visit To volunteer, please note your participation on the registration form. For more information, contact Julie Connell, Program Assistant, at Julie. Connell@americanbar.org. 6:00 p.m. 7:30 p.m. 9:15 a.m. 10:30 a.m. Plenary Session 1: The Human Right to Water in the United States Over 850 million people worldwide lack access to safe drinking water and 2.6 billion lack access to basic sanitation. In response, the United Nations (U.N.) General Assembly adopted a resolution in 2010, calling on member States of the U.N. and international organizations to provide financial resources, build capacity, and transfer technology, particularly to developing countries, to provide safe, clean, accessible and affordable drinking water and sanitation for all. This panel will debate whether a legally recognized Human Right to Water is necessary in the U.S. by exploring: What purpose would such a right serve in the U.S? How would its adoption mesh with current U.S. water law? Who would pay for the delivery costs and what is the extent of the delivery obligation? Finally, would the adoption of a Human Right to Water simply dilute environmental and ecological efforts? Registration and Welcome Reception (cash bar) Dena Marshall, Principal, Marshall Mediation, Portland, OR Thursday, February 23, 2012 Whitnie Henderson, Association of CaliforniaWater Agencies, Sacramento, CA 7:30 a.m. Registration and Continental Breakfast 7:45 a.m. 8:45 a.m. Hydrology 101: The Mystery of Water Flow Unmasked: Where Does the Water Go, and How Does it Get There? An explanation of basic hydrological principles that every water lawyer should know. Hydrology is the scientific study of the properties, distribution, and effects of water on the earth s surface, in the soil and underlying rocks, and in the atmosphere. Understanding basic hydrology and its legal implications is a core requirement for any water lawyer. It s one thing to know the law, but not knowing how water moves on the surface and through the ground leaves the practitioner without the ability to tie the law to a specific situation. Knowing the underlying hydrology principles affords practitioners an opportunity to understand increasingly complex models that may lead to acceptance, rejection, or modification of determinations affecting clients. Steven L. Hoch, Brownstein, Hyatt, Farber, and Schreck LLP, Los Angeles, CA Bruce A. Lytle, President, Lytle Water Solutions, LLC, Highlands Ranch, CO Martin Spongberg, PhD, Senior Engineer, AMEC Environment & Infrastructure, Fresno, CA 9:00 a.m. 9:15 a.m. Welcome and Opening Remarks Kathy Robb, Hunton & Williams LLP, New York, NY Jonathan R. Schutz, Mabey Wright & James PLLC, Salt Lake City, UT Juana Sotomayor, Human Rights Officer, Human Rights and Economic and Social Issues Section, Office of the United Nations High Commissioner for Human Rights, New York, NY 10:30 a.m. 10:45 a.m. Networking Break 10:45 a.m. 11:15 a.m. Plenary Session 2: Part 1 Thirty Years in Thirty Minutes Rod E. Walston, a co-founder of the Annual Water Law Conference, will kick off the plenary session by regaling attendees with his retrospective of the last thirty years of water law and the Annual Water Law Conference in 30 minutes a minute a year. Speaker: Rod E. Walston, Best Best & Krieger LLP, Walnut Creek, CA 11:15 a.m. 12:00 p.m. Part 2 East Meets West: Lessons to Be Learned Historically, eastern and western issues were considered distinct and, presumably, eastern and western practitioners had little to learn from one another. Eastern law is based on riparian rights and western law on the prior appropriation doctrine. Now eastern states are regulating the use of water, often requiring a documented water right. Conversely, western states must modify their appropriation-based laws to address changing societal values, including water conservation and ecosystem protection. A significant trend in the practice is the convergence of eastern and western issues. This panel will consider: what the east can learn from the western history of allocation, what the west can learn from the east regarding the role of water quality in resource allocation, what each region has learned regarding federal regulation, and what each has to offer regarding water conservation.

4 Robert (Bo) H. Abrams, Professor, Florida A&M University, College of Law, Orlando, FL William (Bill) A. Paddock, Carlson, Hammond & Paddock, L.L.C, Denver, CO R. Timothy Weston, K&L Gates, Harrisburg, PA 12:00 p.m. 12:30 p.m. Luncheon (ticketed) 12:30 p.m. 1:30 p.m. Keynote Address: The Future of Water Law and Science Dr. Peter H. Gleick, Pacific Institute for Studies in Development, Environment, and Security, Oakland, CA 1:30 p.m. 3:00 p.m. Breakout Session 1A: Where s the Money? Water Infrastructure Financing in a Whole New World Across the nation, investment in water facility construction and maintenance confronts serious financing challenges. Infrastructure investments lag behind requirements for facility restoration, expansions and sustainable operations. Federal budget constraints portend sharp curtailment of federal investments and subsidies. A lingering recession impacts the ability of state and local governments to fund operating budgets, while access to traditional bond market financing is constrained by real and perceived weakness in the fiscal health of municipalities, higher underwriting standards, and stiffer terms. Taken together, these factors compel review of how water facility sponsors pursue financing, and evaluation of potential alternatives for funding water projects and programs. Our panel will focus on the tools in the tool kit that each water lawyer has to assist their clients taking a look at (1) the current status and challenges of water financing, (2) some of the alternatives available (such as infrastructure banks, public-private partnerships, and movement toward full-cost pricing), and (3) innovative state and local initiatives. Kevin M. Civale, Stradling Yocca Carlson & Rauth, Sacramento, CA Ellen Hanak, Public Policy Institute of California, San Francisco, CA John Fredell, Colorado Springs Utilities, Colorado Springs, CO John Rhow, Barclays Capital, Los Angeles, CA 1:30 p.m. 3:00 p.m. Breakout Session 1B: To Act or Not to Act Federal Endangered Species Act and Water Management Discretion The ESA consultation provisions apply to federal actions that are discretionary. But where the line of discretion begins and ends is a subject of continuing debate and litigation. What does a federal agency do when confronted with a seemingly plain mandate in a biological opinion to give up project water for fish, when that mandate conflicts with the agency s written commitments to its contractors? To what extent may activities be carved out of a consultation because they are not subject to discretionary federal management or control? Current law on this subject is now in flux, and several important cases bear close watching. The outcome could help more precisely define the contours of ESA consultation authority. The question also has important implications for the applicability of remedies such as breach of contract and inverse condemnation (takings claims), as well as defenses such as the sovereign acts doctrine. Oliver W. Wanger, Wanger Jones Helsley PC, Fresno, CA Andy Hitchings, Somach, Simmons & Dunn, Sacramento, CA Bruce Wasinger, General Counsel, Guadalupe-Blanco River Authority (GBRA), Seguin, TX 3:00 p.m. 3:15 p.m. Networking Break 3:15 p.m. 4:45 p.m. Breakout Session 2A: Legal Issues Across Interstate Boundaries Litigation persists over interstate waters because of competing demands due to municipal growth, energy development, and intensified agricultural use. Increasingly, these disputes engage federalism and state sovereignty issues. To be discussed will be the fight over Lake Lanier involving Georgia, Alabama, Florida, and the Corps of Engineers. The 11th Circuit s 2011 decision has transformed the Lake Lanier litigation, requiring the Corps to reconsider allocating water supplies within the federal storage system and to consider Atlanta s water needs within that system. The Supreme Court s acceptance in 2011 of Kansas s suit to enforce the 2003 Republican River Compact Decree against Nebraska will also be reviewed. This litigation raises fundamental issues, including federal aspects to compact compliance and the relationships between groundwater and surface water systems. Finally, Texas s efforts to obtain Oklahoma water supplies will be addressed. Fort Worth has fast-growing metropolitan water demands, and its Tarrant Regional Water District challenged Oklahoma s anti-export statute. Separately, Native American Tribes in Oklahoma have challenged Oklahoma s ability to transfer water outside treaty territory. John E. Thorson, Attorney-at-Law, Plains, MT Linda Christie, Tarrant Regional Water District, Fort Worth, TX Burke W. Griggs, Division of Water Resources, Kansas Department of Agriculture, Topeka, KS Lewis B. Jones, King & Spaulding, Atlanta, GA

5 3:15 p.m. 4:45 p.m. Breakout Session 2B: The Climate Has Changed, Now What? Water managers face multiple new challenges posed by the uncertainties of climate change. Leading water agencies federal, state and local have already begun adapting to these uncertainties. The nation s largest drinking water utilities created the Water Utility Climate Alliance. Rejecting a century of practice for water project analysis, California adopted a new state funding requirement for State funding that bars environmental analysis of an alternative that assumes future hydrology will be similar to past hydrology. Federal agencies from EPA to Department of the Interior and Corps of Engineers have also developed strategies for responding to the climate change threat. But these strategies leave open many questions about current law and the competing claims of individuals and groups to water. The panel will examine a selection of climate change strategies, how they affect water law, and their implications for water agencies and water users. Jon B. Freedman, Government Relations Leader, GE Water & Process Technologies, Washington, DC Carly Jerla, Colorado River Basin Study, Co-Study Manager, Bureau of Reclamation Lower Colorado Region, Duty Station: The Center for Advanced Decision Support for Water and Environmental Systems (CADSWES) University of Colorado, Boulder, CO Robin M. Levine, General Counsel, Bureau of Legal Affairs, City of New York Department of Environmental Protection, Flushing, NY Katherine Spanos, California Department of Water Resources, Sacramento, CA 5:00 p.m. 6:00 p.m. Reception (Cash Bar) Friday, February 24, :30 a.m. Continental Breakfast 8:00 a.m. 9:30 a.m. Water Lawyers and Ethics: Hypothetical Scenarios Taken from Practice The complex substantive issues we all face in water law practice can raise equally complex ethical questions for lawyers. Two experienced practitioners, Wendy Crowther and Rick Glick, will explore ethical issues that arise in every water lawyer s practice: multiparty representation, conflicts of interest, special conflicts of interest rules for former and current government officials, terminating representation, working with experts, attorney-client relationship and confidentiality, and what to do if questionable practices or noncompliance are revealed on client site visits. Hypothetical practical scenarios illustrating these issues will be explored with attendees, and answered by applying the ABA Model Rules and relevant case law. Wendy B. Crowther, Clyde Snow & Sessions, PC Salt Lake City, UT Richard M. Glick, Davis Wright Tremaine LLP, Portland, OR 9:30 a.m. 10:30 a.m. Plenary Session 3: Tribal Water Rights Off-Reservation Water Marketing by Tribal Governments: Can Tribes Sell Settlement Water? What are the legal constraints and mechanisms for reallocating tribal settlement water to non-tribal entities? The Commerce Clause allows water to cross state lines like other commodities, but states often have other ideas about whether water should be exported how do these legal issues affect water marketing by tribes? The panel will examine examples of such marketing efforts by tribes in Arizona, New Mexico, and other states and how existing law addresses such efforts. Ramsey Kropf, Patrick, Miller & Kropf, Aspen, CO Denise Fort, University of Mexico, School of Law, Albuquerque, NM Douglas K. Miller, Former General Counsel, Central Arizona Project, Paradise Valley, AZ Stanley M. Pollack, Assistant Attorney General, Water Rights Unit, Navajo Nation Department of Justice, Window Rock, AZ 10:30 a.m. 11:00 a.m. Networking Break 11:00 a.m. 12:00 p.m. Hot Water Topic: Water and Shale Gas Development Extensive shale gas reserves have been confirmed throughout the United States and internationally. They represent a new, clean source of low greenhouse gas (GHG) fossil fuels that could supplant coal as the primary fuel for electric power generation, home/industrial heating and mobile transportation. Hydraulic fracturing, the technology for releasing natural gas from these hard geologic formations, uses significant quantities of water and generates substantial volumes of high-total dissolved solids flow back brines. Concerns have been raised that shale gas development may threaten ground and surface water supplies and quality, and that potential impacts have not been adequately studied or regulated. Federal agencies (EPA, DOE) are studying the issues, although the scope of federal regulatory jurisdiction is limited or uncertain. Highly publicized events (well control, surface spills, gas migration) and generally widespread media coverage have drawn increasing public and political scrutiny to the debate. This panel will address how existing law addresses these fracturing issues. David Overstreet, K&L Gates, Pittsburgh, PA Michael Brownell, Senior Director, Environmental and Regulatory Affairs, Chesapeake Energy Corporation, Harrisburg, PA Kristen Mosley, Porzak Browning & Bushong, Boulder, CO Close of conference

6 Registration information Location and Lodging The 30th Annual Water Law Conference will take place at the Westin San Diego, 400 W. Broadway, San Diego, CA. To reserve a room, visit our program page, EnvironWL for a direct link to reserve a room. Or call the hotel directly at (888) or (619) A block of rooms has been reserved at the discounted rate of $219 standard single/double occupancy. A limited number of rooms are available to government employees at the rate of $137. Government identification is required for the reduced rate. The cut-off for room reservations at the discounted rate is Wednesday, February 1, After that date, rooms can be reserved on a space-available basis. Be sure to mention the ABA Water Law Conference to receive the special rate. Program Course Materials Course materials and related background information will be provided to attendees online prior to the conference and distributed on a USB-drive onsite. You may wish to bring a laptop, netbook, or tablet to view the materials onsite as complimentary Wi-Fi access will be available. A hard copy of the course materials is available for $80 for pickup onsite, but must be pre-ordered. Please indicate if you would like a hard copy when registering. Advance Registration We encourage you to take advantage of online registration at You can also complete the attached registration form and mail it with your check (payable to the American Bar Association) or credit card information to: ABA Section of Environment, Energy, and Resources, Attn: Program Assistant, 321 N. Clark St., Chicago, IL All attendees must be registered for this meeting to participate. The deadline to receive the early registration rate is Wednesday, January 18, All registrations postmarked after January 18, 2012, must include an additional $50 for processing. The final cut off date for advance registrations is Thursday, February 9, After this date, registrations will need to include an additional $25 for processing. Onsite Registration Onsite registration will be available beginning at 6:00 p.m. on Wednesday, February 22, and then again at 7:30 a.m., Thursday, February 23. If you plan to register onsite, you must call (312) at least 72 hours before the conference to confirm that space is still available. Failure to call in advance may result in not being admitted due to a sold-out program. Onsite registrations will be accepted with an administrative fee of $25. Please note, onsite payment is not accepted during our Section conferences you will receive an invoice after the conference for the amount due. Registration Confirmation In order to be included in the registration roster distributed at the conference, your registration must be received by Thursday, February 9, If you have not received a written confirmation by this date, please call (312) to verify that your registration form and payment were received. Registration Fee Information The registration fee for the 30th Annual Water Law Conference includes tuition and course materials (provided on a USB drive and online) developed especially for this conference. In addition, your fee covers Wednesday s public service project and welcome reception, and Thursday s luncheon and reception. Breakfast and networking breaks will be available on Thursday and Friday. Thursday s luncheon is ticketed and requires advanced sign-up to participate. Law Student Scholarship Opportunity A limited number of scholarships are available to law students interested in attending the entire meeting. To be considered, you must be a member of the ABA Section of Environment, Energy, and Resources. You must also submit by Tuesday, January 17, 2012, a 2-3 paragraph letter indicating your interest in water law and why you wish to attend the meeting. The letters will be reviewed and scholars will be selected and notified no later than Friday, January 20, Send all letters to Yumeka Brown, via to Yumeka.Brown@americanbar.org, fax: (312) , or by mail to American Bar Association, Section of Environment, Energy, and Resources, Attn: Yumeka Brown, 321 N. Clark St., Chicago, IL Tuition and Travel Assistance A limited number of registrations and travel assistance are available for government employees, public interest lawyers employed with nonprofit organizations, and academics. Travel assistance has been made possible through contributions by the Section s Water Resources Committee. To apply, send a letter outlining the basis for your registration and/or travel fee request to Julie Connell, Program Assistant at, Julie.Connell@americanbar.org or mail to, Attn: Program Assistant, 30th Annual Water Law Conference c/o ABA Section of Environment, Energy, and Resources, 321 N. Clark St., Chicago, IL All requests must be received by Tuesday, January 17, Cancellation Policy Registrants who are unable to attend the conference will receive a refund less a $50 administrative fee if written notice of cancellation is received by Thursday, February 9, Cancellations may be faxed to (312) , attn.: Program Assistant. No refunds will be granted after Thursday, February 9. Registration fees are not transferable to other Section or ABA programs. Substitutions for the program are acceptable. The ABA reserves the right to cancel any program and assumes no responsibility for personal expense. CLE Credit ABA programs ordinarily receive CLE credit in AK, AL, AR, AZ, CA, CO, DE, FL, GA, GU, HI, IA, ID, IL, IN, KS, KY, LA, ME, MN, MS, MO, MT, NH, NM, NV, NY, NC, ND, OH, OK, OR, PA, RI, SC, TN, TX, UT, VT, VA, VI, WA, WI, WV, and WY. These states sometimes do not approve a program for credit before the program occurs. For more information about CLE accreditation for this program and in your state, visit For questions, please contact Yumeka Brown at Yumeka. Brown@americanbar.org or (312) Dietary Restrictions If you have any dietary restrictions, please so indicate on the attached registration form or by to Julie Connell at Julie.Connell@americanbar.org by Thursday, February 9, 2012, so that your needs are noted. Americans with Disabilities Act If any special arrangements are required for a disabled individual to attend this program, please call Julie Connell at (312) by Thursday, February 9, 2012.

7 Registration Form Early Registration Deadline: Wednesday, January 18, 2012, Registration Deadline: Thursday, February 9, 2012 Register Online! Save time by registering for this conference at Attention ABA Members! If you are an ABA member but not a member of the Section of Environment, Energy, and Resources, please note that your conference registration fee ($525 before or on January 18, 2012 or $575 after January 18, 2012) includes Section membership. Please check the box below to indicate that you would like to take advantage of this offer. o Yes, enroll me in the Section of Environment, Energy, and Resources. Free with ABA Member registration rate for ABA members only * (a $75 value) * ABA membership is a pre-requisite of Section membership. If you are not already an ABA member, please call (800) Please note: Free Section membership offer only applies to individuals who have not been a member of the Section in the past two years. Please print or type legibly. Name (Last, First, Middle Initial) Name you would like to appear on badge ABA Membership # Firm or Agency Address City, State, Zip Telephone Registrant Information o I cannot attend this program. Please send me the course materials after this meeting at the price of $45 for USB-drive or $80 for hard copy, which includes postage and handling. o $45 USB-drive o $80 hard copy FEES AND PAYMENT INFORMATION Registration Fees: (Payment and/or P.O. must accompany registration or registration form will not be accepted) Before 1/18/12 After 1/18/12 o Section Members/Cosponsors $450 $500 o Other ABA Members $525 $575 o General Attendees $555 $605 o Government, Public Interest, Academic $290 $340 o Young Lawyers* $290 $340 o Hard Copy Course Materials $80 $80 * Qualifying young lawyers are under 36 years old or admitted to practice for five years or less. Registration - Law Students o Section Member $30 o ABA Member* $45 o General Attendee** $60 * As an ABA member, registration will include membership in the Section of Environment, Energy, and Resources for one year. ** As a general attendee, this registration will include membership in the ABA and the Section of Environment, Energy, and Resources for one year. Achieving Carbon Neutrality o $20 Calculated with great care, the Section estimates that the average Annual Water Law Conference attendee s participation will generate approximately one metric ton of carbon emissions. For the first time, an attendee can offset his or her carbon footprint by adding the cost of a one ton carbon credit from NativeEnergy and help pay for tree plantings with Balboa Park to the registration fee! By adding $20 to your registration fee, you can both offset your footprint and help a great cause. All funds raised through the carbon offset program will go to the Iowa Farm Wind Project, a verified offset project that will reduce greenhouse gases by 9,000 tons per year through the installation of two 1.65 MW wind turbines (and bring maintenance and technical jobs to the local community). Meeting attendees who sign up to make their attendance at the Annual Water Law Conference carbon-neutral will be entered into a drawing to win a copy of The Law of Clean Energy: Efficiency and Renewables, Michael B. Gerrard, editor. Total Enclosed: Payment: (check one; complete all information.) o Check enclosed, payable to the American Bar Association. o Purchase Order No. o Charge my credit card: o Visa o MasterCard o AmEx Card Number Fax Exp. Date Information provided on this registration form is published in a registration roster and disseminated to all meeting attendees: o Please DO NOT list my name or contact information in the registration roster. o Please DO NOT list my address in the registration roster. Wednesday, February 22, 2012: Public Service Project o Yes, I do plan on attending the public service project at Balboa Park. o No, I do not plan on attending the public service project at Balboa Park. Thursday, February 23, 2012: Luncheon The Thursday lunch event is included in the cost of registration. Lunch is ticketed and requires advance sign-up in order to participate. Please do not wait until you arrive at the conference to reserve a ticket, we cannot guarantee availability onsite. o Yes, I do plan on attending the lunch. o No, I will not be attending the lunch. Dietary Restrictions? Please specify: Return this registration form (including check, credit card information, or purchase order) to: Attn: Program Assistant Section of Environment, Energy, and Resources American Bar Association 321 N. Clark St., Chicago, IL Fax: (312) Signature

8 321 N. Clark Street Chicago, IL th Annual Water Law Conference Exploring the Future of Water Law February 22-24, 2012 Westin San Diego San Diego, CA Early Bird Registration Deadline: Wednesday, January 18, 2012 Housing Deadline: Wednesday, February 1, 2012 First-Class Mail U.S. Postage PAID American Bar Association