Section of Environment, Energy, and Resources 1

4.16-4.18 2018 HILTON BONNET CREEK

ORLANDO, FL

shopaba .o rg/env i ronwl

ENVIRONMENTAL, ENERGY, & RESOURCES LAW

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SPONSORS Thank you to our sponsors2018 Annual Sponsors Environment

2017–2018 Section ChairJohn E. Milner, Brunini, Grantham, Grower & Hewes, PLLC, Jackson, MS

Program Planning ChairLewis B. Jones, King & Spalding LLP, Atlanta, GA

Planning CommitteeRobert H. Abrams, Florida A& M University College of Law, Orlando, FLDavid Aladjem, Downey Brand LLP, Sacramento, CARebecca J. Baldwin, Spiegel & McDiarmid LLP, Washington, DCBennett L. Bearden, University of Alabama School of Law, Tuscaloosa, ALJohn G. Bickerman, Bickerman Dispute Resolution, PLLC, Washington, DCWinston Borkowski, Hopping Green & Sams, Tallahassee, FLNathan Bracken, Smith Hartvigsen, PLLC, Salt Lake City, UTPamela Bush, Delaware River Basin Commission, West Trenton, NJRobin K. Craig, University of Utah S.J. Quinney College of Law, Salt Lake City, UTAlan Curtis, White & Jankowski LLP, Denver, COJohn E. Echohawk, Native American Rights Fund, Boulder, COElizabeth Ewens, 2019 Planning Chair, Ellison, Schneider & Harris LLP, Sacramento, CAKathryn Firsching, Attorney at Law, Enterprise Atlanta, GABurke W. Griggs, Washburn University, Topeka, KSCynthia Rose Harris, Environmental Law Institute, Washington, DCStephen McCullers, King & Spalding LLP, Little Rock, ARMitchell Reid, External Affairs for the Nature Conservancy, Birmingham, ALKathy Robb, Sive, Paget & Riesel P.C., New York, NYRoger W. Sims, Holland & Knight LLP, Orlando, FL

Please join us in Orlando, Florida, from April 16–18, 2018 for the Section of Environment, Energy, and Resources’ 36th Water Law Conference. Every lawyer with an interest in water should attend this conference. Our presenters and registrants include many of the nation’s most

esteemed regulators, practitioners, and academics. The panels are stimulating, the networking is productive, and Orlando is … Orlando! Our CLE programming covers many recent and exciting developments in water law. Topics will include ethics in water law, federal reserved water rights in groundwater, developments in endangered species law, instream flows, and water reuse. Additionally, there will be a fascinating and timely interactive discussion of the federal government’s role in interstate water disputes. Panelists will discuss these topics and more while providing illuminating insights into water law developments and trends. The world-famous activities and theme parks in Orlando provide an excellent backdrop to the unparalleled learning and networking experience offered at the 36th Water Law Conference. The conference begins on Tuesday, April 17 with a full day of CLE sessions followed by a networking reception. On Wednesday, April 18, the conference continues with a morning of CLE sessions, in-cluding ethics, and a public service project in the afternoon. The conference concludes Wednes-day evening with a joint reception with attendees from the Section’s 47th Spring Conference. Please join us this year in Orlando for learning, networking, and exciting activities!

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P R O G R A M S C H E D U L E

MONDAY, APRIL 16, 20186:30 p.m. – 9:30 p.m.Taste of SEER (Dine Arounds)On Monday evening, you are invited to participate in a Dutch-treat dinner (each person pays for his or her own meal). Dinner reservations have been made at several restaurants in Orlando near the conference hotel. Each dinner will be organized by a Section leader and will have a conversation theme. This is a great opportunity to meet new people, eat great food, and engage in lively conversations. Additional information about how to sign-up will be coming soon!

TUESDAY, APRIL 17, 20187:00 a.m.Registration Opens

7:00 a.m. – 8:00 a.m.Continental Breakfast

8:00 a.m. – 9:30 a.m.Water Law: East Meets WestThe conference opens with a discussion of western and eastern water law by a panel of established water law practitioners. The panel will review the basics of both riparian rights and the prior appropriation doctrine, comparing the two legal regimes and the hybrids developing from them. Panelists and attendees will consider what the east can learn from the west, what the west can learn from the east, and lessons all water law practitioners should take from legal models derived from federal regulation. New and experienced practitioners will receive a concise summary of the basics as well an informative update on the status of eastern and western water laws.

SPEAKERS:Robert H. Abrams, Professor, Florida A & M University College of Law, Orlando, FLPeter Nichols, Berg Hill Greenleaf Ruscitti LLP, Boulder, CO

9:30 a.m. – 10:00 a.m.Networking Break

10:00 a.m. – 11:30 a.m.Does a Federal Reserved Right to Surface Water Extend to Groundwater?: The Ninth Circuit’s Decision in Agua Caliente v. Coachella Valley Water DistrictThe federal reserved water rights doctrine, originating from the decision in Winters vs. United States, has been a primary tenant of U.S. water law for generations. The doctrine, addressing the reservation of water to serve federal reservation purposes, has always applied to surface water, but there has been a long simmering debate regarding the extent of the doctrine including whether it applies to groundwater. The Ninth Circuit tackled this question head-on, holding that California’s Agua Caliente Band of Indians has a federal reserved water right to groundwater. The result could be a significant expansion of the Winters doctrine and reserved water rights across the county. Panelists will review the Ninth Circuit’s decision and consider its potential impact on reserved rights. The panel and attendees will discuss how an expanded federal reserved water rights doctrine could impact state water law regimes and their clients’ rights.

MODERATOR:Letty Belin, Landreth Visiting Fellow, Stanford Water in the West Program, Oakland CA

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SPEAKERS:Elizabeth Ann Peterson, Appellate Section, Environment and Natural Resources Division, U.S. Department of Justice, Washington, DCRoderick Walston, Best Best & Krieger LLP, Walnut Creek, CA

11:30 a.m. – 12:30 p.m.Luncheon

12:30 p.m. – 2:00 p.m.Mandating “Natural Flows” in Managed Systems—Stories from East, West, and ScienceBiologists report that freshwater aquatic ecosystems are exhibiting declines in biodiversity that far outpace those of terrestrial and marine ecosystems. Recognizing that the myriad of human activities that alter natural flows have contributed to widespread degradation of freshwater habitat, more than a dozen states have adopted narrative or other minimum flow criteria for the protection of aquatic life. Learn the science behind these flow criteria from experienced practitioners including veteran water lawyers experienced with minimum flow regimes. Discover how the criteria can affect existing and prospective water rights and allocations on which clients depend, in both regulated riparian and prior appropriation contexts. The panel will also discuss how rights or permit holders can adjust, for example, by acquiring alternative sources of supply that are unlikely to be restricted at the same times.

SPEAKERS:Tom Annear, Water Management Supervisor, Wyoming Game and Fish Department, Cheyenne, WYAdam Gravley, Van Ness Feldman LLP, Seattle, WAMary Ellen Winkler, Deputy General Counsel, St. Johns River Management District, Palatka, FL

2:00 p.m. – 2:15 p.m.Networking Break

2:15 p.m. – 3:45 p.m.The ESA and Property Takings: One Fish, Two Fish, Is it Compensable?The Endangered Species Act (ESA) plays a prominent and evolving role in the allocation and management of water resources. This session focuses on dynamic trends at the intersection of the ESA and water law and the implications of those trends. Panelists will discuss whether ESA restrictions that limit the exercise of water rights might result in a Fifth Amendment taking of property. They will also examine how conflicts between the ESA and other statutes (for example, the Clean Water Act) are being resolved. The panel will address the evolution of standing to allege ESA violations, federal reclamation contract claims vs. ESA take claims, and the use of economic analyses to resolve species and water conflicts. Current law is now in flux, and several important cases bear close watching. Attendees will learn about the current state of the law from experienced panelists and consider how the ESA will impact their clients’ water rights and ability to manage water resources.

MODERATOR:Kathy Robb, Sive Paget & Riesel P.C., New York, NY

SPEAKERS:David Aladjem, Downey Brand LLP, Sacramento, CAWinston Borkowski, Hopping Green & Sams, Tallahassee, FLDavid Sunding, Professor, University of California Berkeley, Berkeley, CA

3:45 p.m. – 4:00 p.m.Networking Break

4:00 p.m. – 5:30 p.m. Hot Topics in Water Law We are in a time of rapid change in water law and regulation. This session will update attendees on important recent developments in the judicial, legislative, and administrative arenas. Panelists will provide key insights and updates on issues including developments in the Waters of the United States rule; the pending Florida v. Georgia interstate litigation addressing equitable apportionment; Ideker Farms, Inc. v. United States of America, an ESA takings case

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with strong water law implications; the ongoing impacts of drought; and trends in litigation, including increases in citizens suits and other third-party enforcement actions. Learn how these hot topics can affect your practice.

SPEAKERS:Jennifer Harder, Professor, McGeorge School of Law, University of Pacific, Sacramento, CANicholas Robinson, Professor, Elisabeth Haub School of Law, Pace University, White Plains, NY

5:30 p.m. – 7:00 p.m.Networking Reception (Cash Bar)

WEDNESDAY, APRIL 18, 20187:00 a.m.Registration Opens

7:00 a.m. – 8:00 a.m.Continental Breakfast

8:00 a.m. – 9:30 a.m.Do I Have a Conflict? Ethics for Water Law PractitionersDuty of loyalty to the client is the cornerstone of the attorney-client relationship. In water law, overlapping representations often arise—practitioners sometimes represent organizations and individual clients over long periods of time and across water districts. The panel will consider how a conflict can arise and under what circumstances a conflict can be waived. Topics will include what constitutes an effective conflict waiver, when can a firm take a new representation or withdraw from an existing one, who is “the client,” and when does a representation end. Not knowing the answers to these questions can result in disqualification, disgorgement of fees, a grievance, or even a malpractice claim. In a multi-party administrative proceeding or litigation, the answers can be complex. The panel will explore these ethics concerns and related issues applying ABA Model Rules 1.2, 1.7, 1.8, 1.9, and other applicable rules, opinions, and law using a variety of hypothetical situations.

SPEAKERS:Karen Donovan, Senior Deputy General Counsel, Metropolitan Water District of Southern California, Los Angeles, CAKeith Rizzardi, Professor, St. Thomas University School of Law, Miami, FL

9:30 a.m. – 10:00 a.m.Networking Break

10:00 a.m. – 11:30 a.m.Water Reuse: It’s Deja Vu All Over AgainThe ongoing Western drought and water supply pressures have focused much attention on reused water as a drought-proof water supply. Cities in Texas are implementing direct potable reuse. Repeated reuse to extinguishment of the resource is being discussed in Arizona. Colorado is considering allowing farmers to increase efficiencies and reuse the saved water to supplement instream flows. This panel will consider the legal and social issues associated with water reuse including public perception and the impacts on water rights in both riparian and prior appropriation states. Panelists will look at the future of direct and indirect potable reuse and how reuse is currently being addressed across the county. Reuse is an area of water law and water management in flux which will have significant impact on the future of the practice. Attendees will gain a deeper understanding of the technical, legal, and economic implications of water reuse.

MODERATOR:Barton “Buzz” Thompson, Professor, Stanford Law School and O’Melveny & Myers LLP, Stanford, CA

SPEAKERS:Laura Donaldson, Manson Bolves Donaldson Varn, PA, Tampa, FLAmy Hardberger, Associate Dean, St. Mary’s Law School, San Antonio, TXTyler Richards, Assistant Director, Gwinnett County Water Resources Department, Lawrenceville, GA

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11:30 a.m. – 1:00 p.m. The Federal Role in Interstate Disputes The U.S. Supreme Court has long described interstate water disputes as the equivalent of war between sovereigns. However, rival states share a common dependence on basin-wide federal water infrastructure and federal water management—and often, a common suspicion of federal overreach. This panel explores this tension between conflict and codependence. Panelists will examine how the United States should participate in interstate water disputes and whether the rule of federal deference to state law, as well as federal discretion to intervene in interstate litigation, help or hinder the resolution of interstate disputes. The complexities of water federalism also raise the question of whether the Court should take a greater role in encouraging the parties (and the United States) to negotiate their own remedy. While mediation is commonplace, it has come very slowly to the Court. This panel will explore alternate models of resolution as well as the issues that may impede settlement.

MODERATOR: Anne Castle, Senior Fellow, Getches-Wilkinson Center, University of Colorado, Boulder, CO

SPEAKERS:James DuBois, Environment and Natural Resources Division, U.S. Department of Justice, Denver, COKristin Linsley, Gibson, Dunn & Crutcher LLP, San Francisco, CA

12:00 p.m. – 4:00 p.m.Public Service Project This year’s public service project will be a joint effort between participants of the 36th Water Law Conference and the 47th 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. For more information, please contact Jennifer Idrovo at Jennifer.Idrovo@americanbar.org.

6:00 p.m. – 8:00 p.m.Reception (Cash Bar)The 36th Water Law Conference and the 47th Spring Conference attendees are encouraged to attend! Join us to catch up with old friends, become acquainted with new ones, and meet Section leadership.

*Speakers subject to change

R E G I S T R AT I O N I N F O R M AT I O N

The 36th Water Law Conference will take place at the Hilton Bonnet Creek, 14100 Bonnet Creek Resort Lane, Orlando, FL 32821. A block of rooms has been reserved at the discounted rate of $255 plus tax for single/double rooms. A limited number of government rate rooms are also available for $110 plus tax (or the current government rate). A valid government ID will be required upon check in.

The deadline for room reservations at the discounted rate is Monday, March 19, 2018 at 5:00 p.m. (CST). To book our contracted rate, call (888) 353-2013 or the hotel directly at (407) 597-3600 or online at https://aws.passkey.com/go/abasc2018. Be sure to mention the ABA Section of Environment, Energy, and Resources 2018 Water Law Conference.

ADVANCED REGISTRATION We encourage you to register online at www.shopaba.org/environwl. If you wish to

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register by mail, visit www.shopaba.org/environwl, to download a registration form. Please mail the form with your check (payable to the American Bar Association) or credit card information to: American Bar Association, Attn: Service Center – Meeting/Event Registrations Department, 321 N. Clark Street, Fl. 16, Chicago, IL 60654 or send to our secure fax number: (312) 988-5850. All attendees must be pre-registered for this conference to participate.

The deadline to receive the early bird registration rate for the 36th Water Law Conference is Friday, March 2, 2018. All registrations postmarked after February 12, 2018, must include an additional $50 for processing. The final cutoff date for advance registration is Friday, March 16, 2018. After this date, registrations must include an additional $25 for processing.

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 ($650 before March 2, 2018 or $700 after March 2, 2018) now includes Section membership, a $75 value! You will be automatically enrolled in the Section of Environment, Energy, and Resources. ABA Membership is a prerequisite of Section membership. If you are not already an ABA member, please call (800) 285- 2221. Please note: Free membership only applies to individuals who have not been a member of the Section during the past two years.

REGISTRATION FEE INFORMATIONThe registration fee for the 36th Water Law Conference includes tuition and online course materials developed especially for this conference. In addition, your fee covers Tuesday’s breakfast, breaks, lunch, and reception and Wednesday’s breakfast, breaks, , public service project and reception.

CANCELLATION POLICYRegistrants who are unable to attend the conference will receive a refund less a $50 administrative fee if written notice of cancellation is received by Friday, March 16, 2018. Cancellations may be e-mailed to Jennifer.Idrovo@americanbar.org or faxed to (312) 988-5572, attn.: Program Assistant. No refunds will be granted after Friday, March 16, 2018. 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.

REGISTRATION RATES Before 3/2/18 After 3/2/18

SECTION MEMBER $550 $600

SECTION MEMBER GOV’T, PUBLIC

INTEREST, ACADEMIC $425 $475

ABA MEMBER $650 $700

GENERAL ATTENDEE $725 $775

GOV’T, PUBLIC INTEREST, ACADEMIC $450 $500

YOUNG LAWYER* $450 $500*

LAW STUDENT $50 $50 * Qualifying young lawyers are under 36 years old or admitted to practice for five years or less.

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Day Rates:Day rates are available for $450 for Tuesday, April 17, 2018 and $250 for Wednesday, April 18, 2018.

Tuition AssistanceA limited number of registration fee waivers are available for government employees, public interest lawyers employed with nonprofit organizations, and academics. For programs with tuition costs over $500, qualifying attorneys will receive at least a 50 percent reduction in the course fee(s). To apply, complete the online application by visiting www.shopaba.org/environwl and clicking Registration by Monday, February 19, 2018. Questions? Contact Jennifer.Idrovo@americanbar.org.

Law Student Scholarship Opportunity A limited number of scholarships are available to law students interested in attending the entire conference. To be considered, you must be a member of the ABA Section of Environment, Energy, and Resources. Your application and resume must be submitted by Monday, February 19, 2018 to be considered. This scholarship does not include lodging or transportation. Visit www.shopaba.org/environwl for additional meeting information. Questions? Contact Allison Read at Allison.Read@americanbar.org.

Conference Course MaterialsCourse materials and related background information will be provided to attendees online prior to the conference. You may wish to bring a laptop, netbook, or tablet to view the materials on-site; complimentary Wi-Fi access will be available.

CLE CreditThe ABA directly applies for and ordinarily receives CLE credit for ABA programs in AK, AL, AR, AZ, CA, CO, CT, DE, GA, GU, HI, IA, IL, IN, KS, KY, LA, ME, MN, MS, MO, MP, MT, NH, NJ, NM, NV, NY, NC, ND, OH, OK, OR, PA, SC, TN, TX, UT, VT, VA, VI, WA, WI, and WV. These states sometimes do not approve a program for credit before the program occurs. This course is expected to qualify for 12.00 CLE credit hours (including 1.50 ethics hours) in 60-minute states, and 14.40 credit hours (including 1.80 ethics hours) in 50-minute states. This transitional program is approved for both newly admitted and experienced attorneys in NY. Attorneys may be eligible to receive CLE credit through reciprocity or attorney self-submission in other states. For more information about CLE accreditation in your state, visit www.shopaba.

org/environwl or contact Jennifer Idrovo at Jennifer.Idrovo@americanbar.org or (312) 988-5625.

Dress and WeatherSection meetings are business casual. Suggested dress includes slacks, skirts, polo-type shirts or blouses, sweaters, and comfortable shoes. The hotel will be cooler, so please pack a jacket or sweater. The average temperature in Orlando in April ranges from a high of 83 degrees to a low of 53 degrees.

Dietary RestrictionsIf you have any dietary restrictions, please indicate on the attached registration form or by e-mail to Jennifer Idrovo at Jennifer.Idrovo@americanbar.org by Monday, March 12, 2018, so that your needs are noted.

Americans with Disabilities ActIf any special arrangements are required for a disabled individual to attend this program, please call Jennifer Idrovo at (312) 988-5625 by Monday, March 12, 2018.

Walt Disney World Resort Discounts for Conference Attendees!All attendees, as well as friends and family members traveling with you are eligible for specially priced theme park tickets. The tickets are good for pre and post conference stays, too!Information available at:https://www.mydisneygroup.com/abaspring18

These Meeting & Convention tickets offer advance purchase savings of 10% on Disney Full-Multi-Day (2 days or longer) Tickets and include one (1) complimentary +1 FUN visit to an additional Disney Experience at any one (1) of the following (additional details are listed on the web site):• Disney’s Typhoon Lagoon Water Park• Disney’s Blizzard Beach Water Park• Disney’s Winter Summerland or Disney’s Fantasia Gardens Miniature Golf Courses (before 4 p.m.)• Greens Fees for one round of golf at Disney’s Oak Trail Golf Course, the 9-hole walking course

Partial-day tickets are available, also AFTER – 2:00 P.M. and AFTER 5:00 P.M., which are discounted off of the full 1-Day tickets.

Achieving Carbon NeutralityCalculated with great care, the Section estimates that the average 36th Water Law Conference attendee’s participation will generate approximately one metric ton of carbon emissions. Help offset your carbon footprint by adding the cost of a one-ton carbon credit from a verified offset project that will reduce greenhouse gases. Contributions to The Fund for Justice and Education (FJE) are tax deductible to the full extent allowed by law. Purchase your carbon offset when you register.

Conference Speaker SupportThe 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 speakers with the expense of attending conferences the Section offers a limited number of travel reimbursements. To assure that the Section can continue to offer travel assistance to such speakers please consider donating 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.

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47TH SPRING CONFERENCE

The Section’s 47th Spring Conference will take place in Orlando on April 18-20, 2018, at the Hilton Bonnet Creek right after the Water Law Conference. The Spring Conference will cover topics including, but not limited to: Trump’s first year, Supreme Court jurisprudence, Superfund reform, environmental permitting, microgrids, interstate water disputes, citizen science, and meaningful tribal consultation. For more information about the schedule and speakers, visit www.shopaba.org/environspring. If attending both conferences, it is anticipated that attendees will be eligible to receive up to 24.00 CLE credit (including 3.00 hours of ethics credit) in 60-minute states and 28.80 CLE credit (including 3.60 hours of ethics credits) in 50-minute states. Several registration options are available:

REGISTRATION RATES

ONE DAY OF WATER LAW + ALL OF WATER LAW ALL OF SPRING + ALL OF SPRING

EARLY AFTER 3/2/18SECTION MEMBER $850 $1000 $1100 SECTION MEMBER GOV’T, PUBLIC INTEREST, ACADEMIC $725 $850 $950ABA MEMBER $950 $1200 $1300GENERAL ATTENDEE $1025 $1300 $1400GOV’T, PUBLIC INTEREST, ACADEMIC $750 $900 $1000YOUNG LAWYER * $750 $900 $1000 SPEAKER AND MODERATOR $450 $450 $450LAW STUDENT $75 $100 $100

*Qualifying young lawyers are under 36 years old or admitted to practice for five years or less.

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