Water Law Institute

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Wednesday Morning

Registration

  1. ALEX RITCHIE

    Executive Director Rocky Mountain Mineral Law Foundation, Westminster, CO
  2. Stuart R. Butzier

    Shareholder Modrall Sperling, Santa Fe, NM
  3. WENDY BOWDEN CROWTHER

    Partner Parsons Behle & Latimer, Salt Lake City, UT
  4. CRAIG WILSON

    Managing Partner K&L Gates, Harrisburg, PA

Introductions and Opening Remarks

  1. ANNE CASTLE

    Senior Fellow University of Colorado Law School, Boulder, CO
  2. AMY HAAS

    Deputy Executive Director and General Counsel Upper Colorado River Commission, Salt Lake City, UT
  3. CHRIS HARRIS

    Executive Director State of California Colorado River Board, Glendale, CA

Colorado River Basin Management Update

The Colorado River provides a significant water supply to the seven states of Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming and provides water to nearly 40 million people for municipal use, along with supplying water to irrigate nearly 5.5 million acres of land. At least 22 federally recognized tribes, 7 National Wildlife Refuges, 4 National Recreation Areas, and 11 National Parks also rely on the River, and more than 4,200 megawatts of hydropower electrical generating capacity are used across the West. This presentation will provide a current view of the Upper Basin and Lower Basin perspectives, heading into the new negotiations to update the 2007 Interim Guidelines and Drought Contingency Plans.

Hosted Refreshment Break

  1. HILARY C. TOMPKINS

    Partner Hogan Lovells, Washington, DC

Tribal Water and How It Looks in the Future

As Indian Tribes adjudicate and firm up their Winters water rights in the West, the value of those rights is apparent to those looking for additional supplies in dry years and for drought planning. As the West faces climate change, how tribal water sources may be part of drought resilience is a topic playing out in several watersheds. This presentation will explore how tribal water rights have been in play, and what the future may bring.

  1. PAUL REIG

    Former Director Aqueduct Water Risk Atlas and Corporate Water Stewardship, World Resources Institute, Washington DC

Global Water Stress

Data released by the World Resources Institutes in 2019 ranks countries by the likelihood that they will drain their annual water stores in a typical year. About a quarter of the world’s populations lives within 17 nations ranked as “extremely stressed” in this analysis, meaning that in a “typical” year, these countries use most of the water they have. The humanitarian and economic implications of global water stress are great. This presentation will consider water as a business and financial risk.

Lunch – On Your Own

Wednesday Afternoon

  1. TINA CANNON LEAHY

    Attorney State Water Resources Control Board, Sacramento, CA

Integrated Water Management

Management and use of water resources are becoming increasingly complex. Where in the past the available quantity of water was the critical issue for water rights holders, consumptive water users now are facing many competing demands on the resource such as maintaining water quality, providing non-consumptive uses of water to support ecosystems and aquatic life, and meeting other societally recognized beneficial uses of water. This presentation will explore this brave new world of water use and management and exciting projects underway in different states, and address the question whether traditional, quantity-based water law is a barrier to innovation or can be an opportunity to more efficiently utilize a resource that is increasingly in demand for a multiplicity of purposes.

  1. JEFF B. KRAY

    Partner Marten Law LLP, Seattle, WA

New Risks to Water Quality

New risks to water quality, some of them linked to global climate disruption, are posing challenges to drinking water supplies and leading to new sources of liability that affect manufacturers, water purveyors, and other utilities and businesses, with the prospect of new regulations affecting these entities. This presentation will offer a broad view and a deeper dive into cyanobacteria, per- and polyfluoroalkyl substances, microplastics, and wildfires, and in the process, provide background on state and federal regulation of emerging contaminants in drinking water, groundwater, and surface water.

Hosted Refreshment Break

  1. BARRY H. EPSTEIN

    Partner Allen Matkins Leck Gamble Mallory & Natsis, San Francisco, CA

Renewable Energy and Water

This presentation will provide an overview of the relationship between renewable energy generation and water supply, a specific form of the energy-water nexus. While the pursuit of renewable energy currently tends to focus on decarbonizing the electric grid, we must remember that wind, hydropower, and solar – like fossil fuels and nuclear power plants – both require water at various stages of production, and in varying amounts, and impact traditional energy production, the environment, and water resources. Renewable energy policy therefore is water policy.

Hosted Reception for Registrants, Speakers, and Guests

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Thursday Morning

  1. BURKE GRIGGS

    Associate Professor of Law Washburn University School of Law, Topeka, KS
  2. BARBARA COSENS

    Professor of Law University of Idaho College of Law, Moscow, ID
  3. MARIA O’BRIEN

    Shareholder Modrall Sperling, Albuquerque, NM

Interjurisdictional Water

Disputes often arise when sovereigns – countries, states, or tribal nations – must share water resources. This presentation examines these disputes and the legal means for resolving them, focusing primarily on negotiated agreements for the allocation and management of interjurisdictional waters. Topics include:

  •  Interstate waters and issues relating to compacts
  •  Tribal water interests and approaches to settlement
  •  International treaties and related negotiation

Hosted Refreshment Break

  1. RICHARD J. LAZARUS

    Howard and Katherine Aibel Professor of Law Harvard Law School, Cambridge, MA
  2. BARTON H. “BUZZ” THOMPSON, JR.

    Robert E. Paradise Professor of Natural Resources Law Stanford Law School, Stanford, CA

Groundwater or Not? The Eye of the Beholder

The Supreme Court, recognizing a split among circuits on the issue of what constitutes “waters of the United States,” has granted certiorari in the Maui case with the following question presented: “Whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.” This question is central to the application of the Clean Water Act and has the potential to expand the scope of the Act to all waters with a hydrologic connection to a surface water (i.e., almost all waters, surface or groundwater) or to limit the scope of the Act in a significant way. This presentation will discuss the Court’s opinion and seek to identify its implications for water practitioners.

  1. DREVET HUNT

    Senior Attorney NRDC Nature Program, San Francisco, CA

Water and the ESA

The application of the Endangered Species Act to water management and use has long been controversial, and continues to generate litigation. This presentation offers a concise update of issues involving water and the ESA, focusing primarily on recent judicial decisions and ongoing cases. These issues will include:

  •  ESA compliance for federal water project operations and water supply contracts
  •  Water right takings claims arising from ESA related restrictions on water deliveries
  •  Notable ESA developments in Congress and the agencies

Lunch – On Your Own

Thursday Afternoon

  1. DAVE OWEN

    Professor of Law, UC Hastings College of Law UC Hastings College of Law, San Francisco, CA
  2. KIM SAGER-FRADKIN

    Wildlife Biologist Lower Elwha Klallam Tribe, Port Angeles, WA

Dam Removal and Fish Recovery: What We Are Learning

In 2018, 82 dams were removed across the U.S.. Dams have been removed in states as diverse as Alaska, California, and Maine, as well as Maryland, Michigan, Oregon, and Washington. Dam removal is important both to river restoration and, often, tribal culture and legal rights. Everywhere dams come out, fish (some of them endangered species) come back – often faster than expected, revitalizing aquatic ecosystems and tribal cultures alike. This presentation will discuss the law and policy of dam removal and the species, ecosystem, and tribal improvements that are occurring as a result.

  1. KARRIGAN BÖRK

    Scientist and Attorney University of the Pacific McGeorge School of Law, Sacramento, CA; UC Davis School of Law, Davis, CA

Stream Access and Stream Bed Ownership

Disputes between property owners and recreational and commercial users of streams are on the rise. Recreational and commercial users seek to maintain or expand access to public waters while riparian property owners often seek to limit access to waterways. Such disputes are generally governed by state law. This presentation will discuss recent developments in state legislation and in case law addressing stream access and stream bed ownership with a comparison of the differing state approaches.

Hosted Refreshment Break

  1. JUGE GREGG

    Senior Corporate Counsel Amazon, Washington DC (invited)

Ethics and the Use of Experts

Litigation involving water resources, almost by its very nature, requires the intensive use of experts. This presentation will evaluate both the obligations of an expert witness and of the lawyer who has retained that witness in water litigation. Given the scientific uncertainty associated with most cases, how far can a lawyer go in suggesting testimony to an expert witness? When must an expert witness refuse to support a legal theory? Is recusal ever justified (or required)? Finally, how can an expert both recognize the scientific uncertainty that is inherent in most major cases and, at the same time, portray what is known in a way that supports the client’s position? Applicable ABA Model Rules of Professional Conduct will be addressed.

Course Adjournment