“CONFLICTS AND COOPERATION: THE PAST, PRESENT, AND FUTURE OF INTERSTATE WATER COMPACTS”

 

Denver, Colorado                          April 8, 2016

Keynote Address

Introduction

Patricia Mulroy’s keynote address urged future generations of water law attorneys and policymakers to build upon the established partnerships that made the Colorado River Basin community so effective over the past two decades.  Consistent with the theme of the conference, “Conflicts and Cooperation: The Past, Present, and Future of Interstate Water Compacts,” Ms. Mulroy emphasized the importance of cooperation in the face of increased water challenges.  She further stressed the importance of shifting the conversation about water from a discussion about water rights, to one about responsibilities.  Throughout her keynote address, Ms. Mulroy praised the Colorado River Basin participants for their ability to form partnerships and take responsibility for various challenges.

As part of her work as a Senior Fellow at the Brookings Institution and former General Manager of the Southern Nevada Water Authority, Ms. Mulroy discussed opportunities to assess international water disputes and consult with international communities.  With this background in mind, she noted that the Colorado River Basin is not without disputes, but asserted that it is the most respected and functional river community throughout the world.  While the Colorado River Basin is a positive model for other water communities, it still faces a number of obstacles in the future.

Strength in Cooperation and Partnership

In highlighting the Colorado River Basin’s accomplishments, Ms. Mulroy attributed its strength to the partnerships that the Basin has formed.  Specifically, Ms. Mulroy said that the Colorado River Basin community derives its strength from its compact.  When looking at the compact, Ms. Mulroy said she sees a document, which in its most basic form, is a partnership.  The compact emerged when the parties recognized that the pillar of Colorado water law, “first in time is first in right,” cannot work between seven states.  As a result, the Colorado River Basin, as a community, created a compact to forge a path for seven equal partners.  Ms. Mulroy argued that this partnership and the parties’ determination to find a solution to issues gave the compact the strength to succeed.

Moreover, Ms. Mulroy noted that this partnership created a culture of cooperation and partnership that allowed the Colorado water community to flourish where others have failed.   Ms. Mulroy noted however, that this partnership has only emerged in the past few decades.  From the 1950s through the 1980s, the compact was least successful because the parties “jockeyed” to obtain preferrence.  However, events such as the litigation between Arizona and California, reminded all of the parties that litigation does not result in a system of winners and losers—only losers.  This lesson sunk in during the 1990s and into this century.  Since this epiphany, the Colorado River Bain community has journeyed back to achieve the underlying purpose and reasoning that helped form the compact initially—a partnership where all seven members are equal.  Ms. Mulroy said that the seven equal partners find opportunity where others find obstacles.

Impending Strains on Future Water-Related Conversations
In recognizing some of the obstacles facing the local water community, Ms. Mulroy pointed to two issues that have catapulted water to an issue of national importance.  She cited the Flint Michigan water crisis as one triggering event.  She argued that it was not the mistake initially made, but the fact that the water utility did not say anything to the community that will negatively impact Colorado River Basin conversations about water.  This betrayal eroded the inherent trust Americans have with their water providers. This loss of trust will weave itself into urban conversations and may hinder conversations regarding water resource management.

Next, Ms. Mulroy noted that the nation currently faces the immense task of determining how to replace the infrastructure that affects the nation’s ability to conserve, manage, and transport water.  Replacing the infrastructure will invariably become an additional tax burden at a time when the general public is resistant to more taxes.  Ms. Mulroy believes that these two issues, among others, will elevate the subject of water to a larger national dialogue.

Impending Strains on the Interplay between Interstate Compacts and Federal Laws

While the nation’s focus is shifting toward water and water scarcity, Ms. Mulroy noted the interplay between federal law and interstate compacts that could result in a serious strain on the ability to form partnerships.  Specifically, Ms. Mulroy pointed to three laws Congress enacted in the 1970s—the Clean Water Act (“CWA”), Safe Water Drinking Act (“SWDA”), and the Endangered Species Act (“ESA”) (collectively “Acts”)—that have the potential to impact the Colorado River Basin system and efforts to cooperate between the main participants.  While the Acts successfully accomplished Congress’ initial goals, Ms. Mulroy suggested that it is unclear whether the Acts are flexible or adaptable enough to meet the needs of a changing climate.

Ms. Mulroy strongly advocated for change—whether it is in administering the Acts or through substantive changes to the provisions of the Acts.  She urged attendees to evaluate the Acts and ensure that each has the capacity to adapt to changing environmental and political climates.  In emphasizing the importance of flexibility, Ms. Mulroy pointed to the success of the Habitat Conservation Plan in the lower Colorado River Basin and the Species Program in the Upper Colorado River Basin as positive examples.

Ms. Mulroy cited the California Bay Delta as one example where the parties’ apparent inability to cooperate hindered water discussions.  She asserted that this inability to cooperate —something she referred to as the “just say no” syndrome—overlaid with the CWA, SDWA, or ESA, has the potential to create a perfect storm which will result in the Acts completely crumbling.  Ms. Mulroy predicts that an attitude of “just say no” will impact every basin where the parties do not form a partnership.

Looking to the Future

Having provided examples of successful and unsuccessful effective partnerships, Ms. Mulroy quoted California Governor Jerry Brown’s statement that he was going to “get shit done” as the mentality parties must adopt as society enters tough drought cycles.  For the Western water community to continue to be successful, Mulroy emphasized that conversations need to shift from a discussion about water rights, to one about responsibilities.  In the face of a changing environmental and political climate, it will only become more difficult to have rational conversations about tough problems.  The willingness to find solutions, in the face of daunting challenges, must serve to unite the West.  While every community has its own culture, infrastructure, and laws to administer, Ms. Mulroy argued that future generations must cooperate to confront common problems and avoid litigation.

Ms. Mulroy concluded her remarks by stating that her generation is handing down a legacy of partnership to the next generation.  With that legacy comes the responsibility to continue the partnership as we confront the new, more extreme stresses that will strain the compact over the next few decades.  She reminded the next generation of lawyers that the guiding principle, which has permeated conversations about water in the West, is that failure is not an option.  We need to find a way to cooperate to find a solution that works for all interested parties.  She strongly urged the next generation to venture outside its immediate communities and go see what it is like in other areas of the world, to tell a story about our journey back to being full partners, and to start thinking about the laws in their flexible fashion rather than a rigid manner.  Failure is not an option.


ETHICAL PRINCIPLES AND OBLIGATIONS FOR WATER LAWYERS

Denver, Colorado                 November 16, 2015

As one portion of its two-part workshop, the Colorado Water Congress hosted a series of presentations concerning the unique interaction between the Colorado Rules of Professional Conduct (“Rules”) and situations that often arise in the practice of water law.

Stephen H. Leonhardt, a shareholder at Burns, Figa & Will, gave the first presentation. He used James P. Owen’s book Cowboy Ethics: What Wall Street Can Learn from the Code of the West to guide a water lawyer through various situations that he or she could encounter in practice. Starting with the precept “when you make a promise, keep it,” Leonhardt compared the book’s discussion of ethics with Rule 1.2’s guidance on the attorney-client relationship. He also mentioned that proposed amendments to the Rules address issues surrounding modern technology and social media. In closing, Leonhardt presented the maxim “remember some things aren’t for sale” to stress that expert witnesses should be a tool for the water court, not a weapon for one side to wield.

The second speaker was David S. Lipson, an expert in hydrogeology and a professor at the Colorado School of Mines. Lipson frequently appears as an expert witness before water courts. He outlined some of the reasons why expert witnesses are important in water law, and clarified their ethical role. He introduced the multidisciplinary nature of water issues, noting that they often require many scientific disciplines working together in order to solve large-scale problems. He cited the recent discharge of mining waste into the Animas River as an example of interdisciplinary cooperation. In dealing with such problems, multiple scientific disciplines must collaborate to diagnose the problems’ causes and formulate solutions for cleanup or mitigation. Next, Lipson addressed the ethical guidelines that bind professional expert witnesses: (i) professional engineers’ licensing requirements, and (ii) professional societies’ voluntary codes of ethics. He went on to explain the limitations that professional societies’ codes of professional conduct place on expert witnesses’ obligation to advocate for their clients. Lipson closed by emphasizing that experts should advocate for the data or objective facts above all else, while also keeping the public health in mind.

The third speaker was Cynthia F. Covell, co-founder and shareholder at Alperstein & Covell. Her presentation focused on a frequent conflict of interest that arises in water law: when water law practitioners represent organizations and individuals for long periods of time and across different water districts. Covell emphasized that water law practitioners today need to advocate for conflict resolution that allows clients to maintain their longstanding relationships. Covell stressed that “material” conflicts are often hard to define in such a complex area of practice. She also discussed American Bar Association Opinion 93-337 and the “issue” conflicts that arise in water law when a lawyer advocates on two sides of an unsettled legal question. The opinion cautions concern over the lawyer’s credibility and that water law appeals go directly to the Colorado Supreme Court. Covell concluded her presentation by asking audience members when they think representation of a former client clearly ends for purposes of the Rules. Multiple practitioners responded to her question by warning of broad initial engagement letters sent to clients, and noting that malpractice insurers recommend sending a closure letter to clients when appropriate.

The workshop ended with a set of hypothetical problems presented by Leonhardt and Covell. These problems addressed the evolution of the Rules surrounding issues of modern technology, including rules currently proposed for adoption, as well as the Colorado Bar Association’s Opinion 127: Use of Social Media for Investigative Purposes. The first problem involved a lawyer representing an environmental non-profit organization opposing a real estate developer’s plan to build a resort in a beautiful mountain area. The problem discussed the developer’s Facebook page and to what extent the lawyer could use information the page contained. Per Opinion 127, a lawyer may always view the public portion of a person’s social media page including posts. A lawyer may not request access to a private portion of a social media profile of a person represented by counsel in a matter without first obtaining permission. A lawyer also cannot delegate these tasks to a third party. In communicating through social media, a lawyer must adhere to the same rules that govern traditional communications. Leonhardt and Covell also went through a problem addressing the “issue” conflicts Covell discussed in her earlier presentation. In this problem, a lawyer represents client C in an unsuccessful appeal against K. The lawyer continues to represent C after the appeal. Later, K asks the attorney to represent her in another matter she wishes to bring under the same theories the attorney had raised in the earlier appeal. While there is no clear answer to the dilemma, the discussion brought up issues of professional image and integrity, as well as appearing before the same judges on repeated occasions.

In sum, the presentations all offered valuable insight into the ethical practice of water law in light of new technologies and increasing complexity in the field.


Denver, Colorado                                          November 16, 2015

Retired Colorado Supreme Court Justice Gregory Hobbs provided an introduction to the history of Colorado water law at an event hosted by the Colorado Water Congress on November 16, 2015. Justice Hobbs retired this fall after nearly nineteen years on the Colorado Supreme Court. During his presentation, Justice Hobbs covered the origins of water law in the state and explained some particularities that make Colorado unique, even among other Western states.

To begin, he said, “In Colorado, water is life and politics, and it contains all the things we love about our state.” Justice Hobbs explained that Colorado water is vital not only for those within the state’s borders, but also for a large portion of the country. Waters beginning in Colorado travel downstream to eighteen states and Mexico, and it is for this reason Justice Hobbs said sometimes the state is referred to as “the Mother of Water.” In fact, Justice Hobbs discussed how out of all the water that originates in the state, Coloradans are allowed to use only a third of it; the rest is reserved for users in downstream states. Over the years, nine interstate compacts, two treaties, and three equitable apportionment decrees have determined the amount of water Colorado owes downstream.

It is no accident Colorado became the headwaters for so many major river systems, Justice Hobbs said, but rather it has to do with gold, slavery, and the Civil War. He explained how after the Kansas-Nebraska Act (which allowed white settlers in each of the territories to decide whether to allow slavery), both the South and the North looked west to see how each territory would decide. By the time the South seceded and war broke out, the area now known as Colorado had already been experiencing a major gold rush along the Front Range. Shortly after, organizers carved the Colorado Territory out of the Utah, Nebraska, and Kansas Territories, and Congress allowed it to enter on the side of the Union. The logic, Justice Hobbs pointed out, was that it would keep the region’s mineral wealth out of the hands of Confederates and help the North’s war effort. Along with the gold flowing down from the Rockies, of course, came the streams themselves, several of which formed the headwaters of the region’s most important rivers.

But any discussion of water law in Colorado doesn’t start with the territory. In fact, Justice Hobbs spent much of his presentation on water and its uses in the region before white settlers came. From 550–1276 C.E.., the Ancestral Puebloans lived in the area of Mesa Verde. As dry-land farmers, the people developed several ways of maximizing use of the sparse water in the region, including building a reservoir that is considered even today “a civil engineering marvel.” During this period, the people experienced three great droughts, the third of which was severe and drove them out of the area. At the end of the period, the conflict over water became great, and in places like Hovenweep National Monument, ancient guard towers near valuable water sources show that water protection and enforcement was extremely important to the Puebloans.

Justice Hobbs also recounted John Wesley Powell’s contributions as an explorer and as a thinker of the West’s future. Powell saw that the area west of the Hundredth Meridian was fundamentally different from the lands to the east. This was the line that demarcated where average precipitation was less than twenty inches per year. Powell knew water availability would be the crucial issue in the West, especially if the land were to be used for agriculture. Powell presented many ideas to the United States government on how best to organize the region. But contrary to public opinion today, Justice Hobbs said that Powell did not actually advocate for watershed based state formation. Instead, Powell proposed river districts that existed within a state or across state lines, where members could decide among themselves on how best to manage their resource and settle disputes. Justice Hobbs pointed out that in many ways, Colorado enacted this exact idea in creating the state’s seven water districts. Each district comprises a single major watershed and each has both its own water court to adjudicate rights and resolve disputes, as well as a division engineer to enforce those rights. In terms of water administration this is unique in the West because most states use a state agency to oversee individual water rights.

Justice Hobbs also explained that Colorado’s water law system is unique to the region and is historically interesting. Colorado, like many other Western states, employs a form of water law called the Prior Appropriation Doctrine, which he summarized as “first in time in settling, first in line in times of drought.” This system abolished the common law Riparian system, which American courts brought over from England and used throughout the eastern United States. The Riparian system allowed only those landowners abutting the stream banks to divert its water for non-consumptive uses only. In this system, downstream users also have correlative rights to those upstream. Colorado chose to reject this system because of the aridity of the West and the fact that few homesteaders lived along streams. Justice Hobbs explained the rejection came from the fear that corporations could buy up the land along a water source and control its use. In his opinion, the Prior Appropriation system represents a “radical agrarian anti-monopoly doctrine based on agricultural use.”

Another significant point in the history of Colorado water law that Justice Hobbs discussed came in 1922 with the Colorado River Compact. The deal divided the waters of the Colorado between the seven states laying claim to its waters. Specifically, the compact divided the water between the Upper Basin and the Lower Basin, allocating 75 million acre-feet to the Lower Basin over an averaged ten-year period, 1.5 million acre-feet to Mexico, and the rest for use by the Upper Basin states. Colorado and the other Upper Basin states subsequently decided how to split up their allotment in 1948 with the Upper Colorado River Compact. Colorado secured fifty-one percent of the Upper Basin allocation. Justice Hobbs noted that in 1922 the states were assuming a yearly flow of more than 16 million acre-feet. The problem, he said, was that this amount overestimated water availability, especially in drought years. In fact, as recently as 1902, there were only 9.5 million acre-feet of water in the basin, something that the Upper Colorado River Compact drafters knew. This deal, therefore paved the way for storage to be an integral part of water in the West—a trend that continues today.

Justice Hobbs concluded his presentation by answering participant questions about the failure of recent water law legislation, including Senate Bill 23 in 2014 and House Bill 1259 earlier this spring. Justice Hobbs closed by saying that he has seen a lot of changes in Colorado water law over the course of his career and that he was excited for the changes that the future generation of professionals working in water might encounter.

The featured image is from John Wesley Powell’s second expedition down the Colorado River.  The photo is titled “The Boats in Marble Canyon” and is from about 1872.  This image is part of the public domain.


Denver, Colorado                                                                                               October 26, 2015

Members of the Colorado Supreme Court’s Water Court Committee focused their discussions on ways to improve efficiency and consistency among the State’s seven water divisions. Supreme Court Justice Allison Eid, chair of the committee, presided over the meeting. A permanent standing committee since 2009, the Water Court Committee works to “[identify] possible ways through rule and/or statutory change to achieve efficiencies in water court cases while still protecting quality outcomes, and [ensuring] the highest level of competence in water court participants,” according to the water court’s website.

For two hours, members engaged in a roundtable discussion of potential issues regarding water court procedures and rules to see if they might recommend any changes to the State’s seven water court judges and the Colorado Supreme Court. Among the topics were alternative dispute resolution, the role of the State and Division engineers in the early stages of a case, abandonment, and the duty to preserve evidence.

The Committee first addressed the idea that clients want to be more involved in the early stages of the water court process. Jennifer Ashworth, Project Engineer and co-founder of White Sands Water Engineers, Inc., said that some clients have expressed the desire to attend expert meetings, which are currently a series of confidential meetings in which engineers discuss their findings, agreements, and disagreements. Committee members – including David Robbins, president and co-founder of Hill & Robbins, P.C., and James Witwer, shareholder at Trout, Raley, Montaño, Witwer & Freeman, P.C. – pointed out that expert meetings are critical points at which engineers can work through dense technical issues among themselves and then report to the clients and their attorneys.

Committee members concluded that expert meetings may not be the place for clients to get involved, because settlement discussions could involve broader considerations about settling the case. They suggested there might be some point early in the process, perhaps an evaluation or mediation stage, where clients, attorneys, and experts could meet and attempt to resolve issues. John Cowan, Water Division One Water Referee, said judges already have the power to order mediation, but adding an express water court rule change for this may be helpful. At the request of Justice Eid, several members volunteered to study and report back on encouraging alternative dispute resolution in water cases.

Justice Gregory Hobbs, the Committee’s Chair until his retirement from the Supreme Court at the end of August of 2015, stated that if and when the State Engineer becomes a party in a water court case is another issue of concern. He suggested that the referee process might work better if the State and Division Engineers can consult in a non-adversarial way until it becomes clear that a water court trial may be necessary. Committee members discussed the issue that not every water division handles the referee process in the same way. State Engineer Dick Wolfe suggested that it may be helpful to hear from the water judges and referees about making the consultation process more consistent among the divisions. Justice Eid designated a sub-committee to look into this.

Next, Holly Kirsner Strablizky, Water Division Five Water Referee, suggested that there is confusion in the water law community about how abandonment cases should proceed. Particularly, she said that there is some misunderstanding among attorneys and judges on timelines and exactly what should happen when an abandonment action goes before a court. Justice Eid assigned Ms. Kirsner Strablizky and other members to study and report on this topic.

Mr. Witwer then presented to the Committee the issue of evidence preservation. Specifically, Mr. Witwer pointed out that the duration and means of the duty to preserve is unclear, especially in the electronic age and with regard to conditional water rights. He noted that preservation is especially important in water law cases because such cases can span years or even decades. He said it is particularly difficult to know exactly what information a client must retain and how long that client must keep the information to avoid spoliation issues at later proceedings. Mr. Witwer volunteered to head the subcommittee that will look into the issue.

Mr. Witwer also raised the concern that some cases involving specific disputes between individual parties go before the Supreme Court unnoticed, even though they may significantly impact water law in the state. He noted that this prevents participation by amicus curiae briefs. He suggested creating some informational system that would alert the water community more broadly.

Committee members also decided to focus on updating Continuing Legal Education water courses. At the meeting’s end, the Committee agreed to meet again in April and receive the reports from the subcommittees at that time.

The University of Denver Water Law Review would like to thank Retired Justice Gregory Hobbs for his help in preparing this piece.

The featured image is of the Colorado Supreme Court courtroom.  This photo belongs to Jeffrey Beall and is licensed under the Creative Commons Attribution 3.0 Unported License.


WATER AND ENERGY: COOLING WATER WITHDRAWALS AND LONG–TERM POLLUTION FROM FOSSIL FUEL EXTRACTION AND COMBUSTION

Denver, Colorado June 4, 2015

At the American Bar Association’s 33rd Annual Water Law Conference, Sherina Maye, the Commissioner of the Illinois Commerce Commission, moderated the first panel, which featured three speakers addressing the connections between energy production, water pollution, and consumptive use.

The first speaker was Charles D. Case, a partner at Hunton & Williams LLP. Mr. Case spoke about electric power generation, the management of coal ash, rules recently put in place in North Carolina, and rules implemented nationally by the U.S. Environmental Protection Agency (“EPA”). To familiarize the audience with the topic, he listed common elements of coal ash, or coal combustion residue (“CCR”). CCR is comprised of fly ash, typically captured by an electrostatic precipitator atop a coal furnace; bottom ash; slag; flue gas desulfurization residue, a byproduct of systems that remove the sulfur-oxygen compounds from power plant exhaust that otherwise would contribute to acid rain; and selective catalytic scrubber reduction residue.

Next, Mr. Case gave a brief history of coal use for electric power generation. He noted that coal production nearly doubled between 1970 and 1990, when the United States produced nearly one billion tons of coal. Mr. Case explained that coal use only recently started to decline due to increased alternative fuels use, such as natural gas, and increasing penetration of renewables in the United States’ energy mix. United States production of CCR peaked between 123 and 131 million metric tons in 2007 and 2008.

Mr. Case then gave a procedural overview of the history of the EPA’s CCR assessment program, which began in 2009. That program published its final rule (“rule”) on April 17, 2015. The rule treats CCR as a solid waste under the Resource Conservation and Recovery Act (“RCRA”) for the first time. The rule classifies CCR as non-hazardous waste under Subtitle D of RCRA, but the EPA has reserved the right to revisit that classification if it determines that CCR is hazardous. Mr. Case asserted that the possibility of reclassification has caused industry uncertainty, which may lead the U.S. Congress to address the issue legislatively.

Mr. Case explained how the rule addresses the leaching of contaminants into groundwater, release of contaminants into the air as dust, and the possible catastrophic failure of surface ash impoundments, but exempts beneficial use and re-use. He emphasized the importance of this exemption, because CCR is widely used as a concrete admixture.

Mr. Case continued to describe that the rule is self-enforcing through citizen suits or state action, yet contains no permitting requirements. The requirements include location restrictions relative to groundwater sources, wetlands, and seismic zones, as well as, liner and structural integrity criteria. The rule also contains specific requirements for groundwater monitoring and provisions for corrective action to remediate groundwater contamination. Facilities that do not comply with the rule regarding location restrictions, groundwater contamination, or structural integrity requirements must close within three years.

Mr. Case concluded his remarks by discussing the North Carolina coal ash management statute, commonly called CAMA, passed in 2014. He detailed some of the differences between the EPA rule and CAMA. For example, CAMA does not regulate landfills, but directly addresses seepage. CAMA also prescribes facility closure based on risk, and regulates beneficial use.

The next speaker was Frank Holleman, a Senior Attorney at the Southern Environmental Law Center (“SELC”). Mr. Holleman gave a talk titled, “Cleaning up the South: The Legacy of Coal Ash.” He began by stating that he considers the current methods of storing coal ash to be “dangerous, risky . . . and illegal.” To illustrate his point, he asked the audience to imagine that a long-time client came into the office and said he wanted to dig a big, unlined pit, on some property next to a major river, and fill it with millions of tons of industrial waste containing arsenic, uranium, radon, lead, molybdenum, and hexavalent chromium. The client would then fill the pit with water. To protect drinking water, the client would build a leaky earthen dyke. Mr. Holleman asserted that no lawyer would allow the client to make such a pit, but contended that is precisely what utilities in the southeast have been doing for years.

Mr. Holleman showed a map with sixty-one coal ash facilities in the southeast United States, twenty-five of which the SELC is currently suing. Mr. Holleman pointed out that most ash facilities are on major rivers. He discussed SELC’s strategy, which employed South Carolinian law to bring suit against coal ash impoundment operators forcing clean up actions. SELC then moved to North Carolina where it discovered every site in the state violated state law, federal law, or both.

Mr. Holleman discussed two high-profile coal ash spills, one at the Tennessee Valley Authority’s (“TVA”) Kingston site in Tennessee, and another at Duke Energy’s Dan River site in North Carolina. Both spills helped increase public awareness and action. Due to the increased publicity, the spills resulted in criminal charges filed against TVA and Duke Energy, the CAMA statute enacted in North Carolina, and all utilities in South Carolina agreeing to clean up their ash lagoons.

Mr. Holleman concluded with his view that the operation of an unlined coal ash pit can be criminal, even if the regulator permitted the activity. He stated that the EPA CCR rule is not a safe harbor. Rather, it is a bare minimum because an operator may still be open to criminal or civil liability even after achieving compliance.

The final speaker of the panel was Kelly Love, a Senior Attorney with the TVA. Her talk was titled, “River Management: Balancing Multiple Uses to Create Value.” Ms. Love gave a detailed talk of the design of power plant intakes to reduce impingement and entrainment of aquatic creatures as required by Section 316(b) of the Clean Water Act. She discussed various technology options, such as reducing the intake flow by implementing closed-loop cooling, exclusion through low-velocity screens, or using traveling screens that collect fish and return them to the river. These technology options have their trade-offs; for instance, closed-cycle cooling is low–use, but high consumption, because there is no return flow to the river.

The moderator, Commissioner Maye, asked the panel questions to conclude the session. The first went to Ms. Love on the impact of Section 316(b). Ms. Love replied she thought the overall impact would be low because of the variety of technology options available other than closed-loop cooling. Mr. Case added that Section 316(b) has site-specific provisions to balance fish impacts with increased water usage. Commissioner Maye then asked Mr. Holleman and Mr. Case about a coal ash lagoon operator’s potential criminal exposure. Mr. Case responded that most industrial activities have some criminal and civil liability if they are done improperly. He disagreed with Mr. Holleman’s view that operation of a coal ash pit is independntly illegal. Mr. Holleman responded by stating that almost every site he has seen is not necessarily criminally operated, but is at least civilly illegal. He said he had seen some seepages clearly visible from Google Earth, and that a knowing or negligent violation of the Clean Water Act is a criminal offense.

A final questioner asked whether there was a risk of contaminant leaching from concrete made of ash. The panel confirmed, based on EPA studies, leaching from concrete is very low. Mr. Holleman said that beneficial re-use of ash has to be managed in ways that do not backfire on the industry, for example, coal ash re-use in agriculture. Mr. Holleman warned that agricultural re-use would be inconsistent with the growing business of many grocery stores in natural and organic products. With that, Commissioner Maye thanked the speakers and closed the session.

The featured image is the American Bar Association image and is part of the public domain.


“THE LAW WITHOUT SCHOLARSHIP WOULD BUILD A BOAT TO FLOAT A WATERLESS SEA”

Denver, Colorado                          April 10, 2015

Environmental Protection & State Water Law

At the 8th Annual DU Water Law Review Symposium, Professor Frederico Cheever moderated a panel of three professionals in the field of water and environmental law, focused on the nexus between environmental protection and state water law. The panel discussed the evolution of water law in Colorado, focusing heavily on instream flow rights, and considered the use of the Endangered Species Act as a compliment to existing water conservation efforts.

David Robbins, president and co-founder of Hill & Robbins, P.C., spoke first. Mr. Robbins was named the 2012 Colorado Water Leader of the Year, and currently serves as a board member of the Colorado Water Trust. Mr. Robbins first discussed his time at the EPA, where he first met and worked with Justice Hobbs. Robbins then laid out what he believed to be the fundamental issue of water today: how to place new social interests into a system based upon vested property rights.

Mr. Robbins discussed three ways the state of Colorado has modified prior appropriation law, and the legal difficulties they faced, in order to balance social interests with existing water rights. First was the instream flow law, which came about in the 1970s after an unfavorable water court ruling; the legislature declared that the Colorado Water Conservation Board (“CWCB”) could obtain instream flow rights to protect the natural environment to the minimum amount necessary. This presented the legislature with an issue: how to codify instream flow rights without inherently adopting parts of the riparian doctrine. Mr. Robbins commended the legislature for adopting the solution of vesting the sole power to obtain instream flow rights with an independent state agency.

Next, Mr. Robbins explained the evolution of the recreational in-channel diversion (“RICD”) law. In another creative solution, the Colorado Supreme Court held that an appropriator could satisfy the diversion and beneficial use requirements by constructing an “in-channel” structure able to control and manage the flow. Mr. Robbins pointed out, however, that he believes the inherent tension between the RICD law and prior appropriation will eventually force the court to address the legality of a large recreational right that would preclude any future development on a particular reach or system.

Finally, Mr. Robbins discussed the link between water quality and the environment. Both Colorado and the federal government have statutes suggesting that water quality laws should not prevent the exercise of existing water rights. Mr. Robbins pointed out that, while this is sound policy, everyone must remember that water rights are not absolute; the government has to play a role in water regulation for environmental protection.

Next to speak was Amy Beatie, Executive Director of the Colorado Water Trust. Ms. Beatie is a former clerk for Justice Hobbs and helped found the DU Water Law Review. Ms. Beatie first spoke about her connection with DU and the challenges she and her classmates faced in founding the DU Water Law Review. She then thanked Justice Hobbs for his efforts and contributions to the DU Water Law Review as it evolved over the years.

Ms. Beatie then shifted her focus to the development of the instream flow program as a means to preserve the natural environment. She spoke about the CWCB’s ability to protect against future development, and the program’s 1500 water rights covering some twenty-five percent of the perennial streams in Colorado. However, the majority of the CWCB’s instream flow rights are junior and often ineffective. The Colorado Water Trust became involved to help amplify the CWCB’s acquisition program that focuses on the leasing and acquisition of vested senior rights—the backbone of the state’s instream flow program. The Colorado Water Trust’s activities also include habitat and structural restoration, including a dam removal in the Poudre River. Lastly, Ms. Beatie urged the audience to not confuse progress with success in the arena of preservation. Specifically, she pointed out the need to increase funding among conservation groups and water trusts for improving flow outcomes. She applauded the state’s efforts as well as the efforts of other stakeholders in encouraging water and environmental preservation, while pointing out that there remained much work to be done.

The final speaker was Professor Sandra B. Zellmer of the University of Nebraska College of Law, where she teaches and writes about natural resources, water, and environmental law. Prior to her career in academia, Ms. Zellmer was an attorney in the Environment and Natural Resources Division of the U.S. Department of Justice, where she litigated public lands and wildlife issues. Additionally, she practiced at Faegre & Benson, and clerked for the Honorable William W. Justice, in the U.S. District Court, Eastern District of Texas. Ms. Zellmer began her presentation by thanking the DU Water Law Review for organizing the event and giving her the opportunity to thank Justice Hobbs for his contributions to the field.

Ms. Zellmer’s presentation focused on whether the Endangered Species Act (“ESA”) could coexist with state water law and existing vested rights. She began by discussing Section 7’s no-jeopardy requirement, and the Supreme Court’s holding in TVA v. Hill that the language of the Endangered Species Act is very clear: federal actions must avoid jeopardy of endangered species at all cost. As an example of how Section 7 can affect state water law, Ms. Zellmer explained the case of the Rio Grande silvery minnow. In response to a severe drought, the Fish and Wildlife Service (“FWS”) proposed to allow the Bureau of Reclamation to continue delivering water to irrigators, causing a stretch of the Rio Grande to go dry and possibly jeopardize the endangered silvery minnow population. The FWS’s biological opinion found jeopardy, but neglected to offer reasonable and prudent alternatives. Accordingly, the Tenth Circuit vacated the biological opinion, refused to allow the irrigation deliveries, and required the flow of water to continue in the Rio Grande. Ms. Zellmer pointed to the silvery minnow case and Ninth Circuit case law to illustrate that when vested water rights are dependent on a federal nexus, the Bureau of Reclamation may, and may even be required to, shift water from established uses to protect species.

Ms. Zellmer then discussed Section 9 of the ESA, which prohibits the “taking” of endangered or threatened species. Courts have interpreted irrigation to constitute a taking where it was reasonably foreseeable that irrigation would harm endangered species and their habitats. Therefore, under the “no take” provision, parties with vested rights can be precluded from exercising those rights in order to protect a species. However, this might result in another kind of “taking”—under the Fifth Amendment—requiring the government to compensate the private party for the “loss” of its water right. Additionally, Section 9 of the Act offers some relief in the form of incidental take permits, whereby actors who may otherwise cause jeopardy will be free from liability if that jeopardy is incidental to an otherwise lawful action.

Professor Cheever thanked the panel and opened the floor to questions. First, Zellmer fielded a question about applying the ESA to the Ogallala Aquifer. Ms. Zellmer opined that, since there are several endangered species within the area of the aquifer, there is the possibility that the ESA may be invoked. However, both Ms. Zellmer and Mr. Robbins suggested that the connection between groundwater depletion, surface flows, and any harm to endangered species would be so attenuated that courts would not likely find the proximate cause necessary to support a violation of Section 9. The final question concerned whether water law can change quickly enough to accommodate the evolving issues that climate change presents. Ms. Beatie suggested that the current framework of law is flexible enough to handle emerging issues. If anything, Ms. Beatie suggested, laws would only need to be tweaked (and funds raised) in order to respond to unforeseen issues. Mr. Robbins added to this response by pointing out that climate change, while serious, may not have a direct effect on annual stream flows in Colorado, but could create serious issues for water managers by altering the traditional timing of those flows.

 


“THE LAW WITHOUT SCHOLARSHIP WOULD BUILD A BOAT TO FLOAT A WATERLESS SEA”

Denver, Colorado        April 10, 2015

The Hobbs Opinion

There is a formula to writing legal opinions, and a truly gifted legal writer like Justice Hobbs can take the formula and make it his own. That was the final panel’s theme at the 2015 University of Denver Water Law Symposium honoring Justice Gregory J. Hobbs, Jr. of the Colorado Supreme Court (“Court”). The panel comprised several of Justice Hobbs’s former colleagues: retired Chief Justice Michael Bender, retired Justice Jean Dubofsky, and retired Justice Alex Martinez.

The panel moderator was retired Justice Dubofsky, who was appointed to the Court in 1979. Justice Dubofsky provided symposium attendees with a history of the judicial opinion and how it has evolved in Colorado over the decades. At the time she was appointed, justices were expected to write on the issues and areas they specialized in. Justice Jim Groves, for example, was the water expert on the Court at the time, and anytime the Court decided a water issue he would write the opinion. Justice Dubofsky had a passion for constitutional cases and would write those opinions.

Justice Dubofsky shared that, at that time, each justice on the Court was expected to write at least 100 opinions per year. Currently, the average justice writes 32 opinions per year. Because the justices wrote so many opinions, they were often kept short and simple. As the number of appellate divisions and avenues for direct review grew, the Court was required to take fewer cases on certiorari and the method of opinion writing changed. The justices were able to spend more time writing their own opinions and editing the work of their colleagues, and the Court moved away from having justices specialize in particular topics. Over time, the process and formula of opinion writing evolved into its present state—focused both on substance and creativity. Justice Dubofsky closed out her portion of the panel by stating: “If you like solving problems, it is one of the worlds most rewarding jobs. Greg Hobbs has done it very well.”

Retired Chief Justice Michael Bender was the next speaker; he and Justice Hobbs sat on the bench together for 17 years. He began by remarking that Justice Hobbs’s enormous energy, love for people and history, and desire to be a spiritual leader for the law helped him shape Colorado water law and foundational principles in a variety of other legal fields.

In one of Chief Justice Bender’s favorite cases, Justice Hobbs authored an opinion about whether a tent should be considered “habitation” for purposes of the Fourth Amendment. In People v. Schafer, Justice Hobbs’s knack for history is apparent and applied in an eloquent version of the legal writing formula. Justice Hobbs cited, amongst other historical sources, the expeditions of Lewis and Clark to build his argument that a tent is in fact a constitutionally protected form of habitation. Chief Justice Bender next spoke about a case where the Court decided whether a bible constituted an improper outside influence during jury deliberations. Justice Bender remarked that the writing in this opinion is so clear, and the reasoning so convincing, that the opinion has been cited in other jurisdictions to overturn death sentences where the jury improperly consulted the bible during jury deliberations.

Chief Justice Bender ended his portion of the panel by explaining that he chose to talk about these cases because they highlighted notable times where Justice Hobbs’s writing has been influential outside of water law. While water law is incredibly lucky to have him, he is an advocate for all in the state of Colorado, and has had an influential career in many areas of the law.

From the basic premise of a person grounded in morality, you see this great man with concerns for history and humanity, a man with enthusiasm that uses innovative thinking to solve problems, a man that shows respect for all those he meets. Those were the opening remarks from Justice Martinez, the final panel speaker. He commented on Justice Hobbs’s vast knowledge and extensive experiences, his hard work, his enthusiasm for people, and his approachableness. Justice Martinez stated that because of all of these attributes, Justice Hobbs has been a role model for the many, and that these attributes shine through in the opinions he has authored.

Justice Martinez thinks that, while opinions do need to follow a certain formula, strictly following that formula can be dull. Justice Hobbs’s love of history and the state of Colorado is apparent in his writing and makes his opinions in every area of law interesting to read. Justice Martinez said that if he was ever assigned an opinion on a topic he was not very familiar with, he would read a few of Justice Hobbs’s opinions in order to educate himself on the issue. Justice Martinez remarked that one of Justice Hobbs’s great gifts, is that he not only knows the law, but he communicates it in a way that makes it easy for people to understand and learn from.

Justice Martinez spoke about a unique case the Court decided, Archuleta v. Gomez, which dealt with the adverse possession of water rights. Justice Hobbs was careful to communicate that adverse possession has a limited role in water law, and that you cannot adversely possess water in the stream; it only applies to water that has passed the head gate and has been diverted from the stream. More importantly though, Justice Martinez wanted to focus on the poetic nature of a line in the opinion: “The Colorado doctrine of water use is propelled by need and bounded by scarcity.” Justice Martinez remarked in the fact that the one sentence poetically embodied so much of Colorado, and Justice Hobbs fit it artistically into the formula.

Gregory J. Hobbs, Jr. gave the final remarks, and began by taking a moment to acknowledge his law clerks and interns over the years. He stated that he believes the more minds that are wresting with the written product, the better the result. He concluded by expressing gratitude for a career has been filled with scholarship, and that was shaped by negotiation and different ideas.


“THE LAW WITHOUT SCHOLARSHIP WOULD BUILD A BOAT TO FLOAT A WATERLESS SEA”

 Denver, Colorado        April 10, 2015

Access to Justice & Tribal Water Rights

Professor Lucy Marsh, a professor dedicated to pro bono work for elderly and low-income tribal clients at the University of Denver Sturm College of Law, was the moderator for the opening panel at the University of Denver Water Law Review’s eighth Annual Symposium. Professor Marsh introduced three wonderful speakers: Retired Justice Patricio Serna, Chairman of the U.S. Indian Law and Order Commission Troy Eid, and Professor Sarah Krakoff. All three panelists spoke on a topic that is dear to Professor Marsh’s and Justice Gregory Hobbs’ hearts – the rights of Native Americans and Justice Hobbs’ enduring contributions to those rights.

Retired Justice Serna is an honored Justice of the New Mexico Supreme Court, where he served for fifteen years. He was a District Court Judge eleven years before that. Justice Serna is still active as Emeritus on the Board of Directors for the National Consortium on Racial and Ethnic Fairness in the Courts. Justice Serna began the panel speaking on how important the past is to Navajo people and how he was awarded by a group of Navajo with his own bolo tie. The bolo tie is a trademark of Justice Hobbs, who is rarely seen without one. According to Justice Serna, the bolo tie represents for Navajo people their philosophy that people are to be “in harmony with nature.”

Justice Serna spoke of the New Mexico tribal state judicial consortium. He explained that the consortium is composed of individuals who are appointed by the New Mexico Supreme Court to represent the twenty-three tribes and pueblos that are recognized as residing in New Mexico. Justice Serna spoke on how the consortium was put into place to facilitate communications between the courts and the tribes. The consortium succeeded by creating tribal courts with their own tribal judges. Further, he explained that the tribal judges are given authority by the state to make rulings, and that these courts are unique in that each tribal judge sits in tandem with a state judge. Justice Serna then spoke of his personal experiences with the tribal courts, his appreciation for the tribal court judges, and the effective work he has done to improve the livelihood of tribal members.

Next, Justice Serna shared an Indian water law case that has been ongoing since 1966, New Mexico ex rel. State Engineer v. Aamodt. The case was filed in 1966 in the United States District Court. It is the longest running water law dispute in New Mexico. The case is adjudicating the water rights in the Rio Pojoaque System of both Pueblo and non-Pueblo peoples of New Mexico. The Pueblo includes the Nambe, Pojoaque, Tesuque, and San Ildefonso. Further proceedings in the case were stayed in August of 2000. The parties still have not reached a settlement agreement and the case remains open today. Justice Serna concluded his presentation by reading an original poem by Justice Hobbs, “An Oath as Good as Fry Bread.”

Troy Eid presented next. Eid is a principle shareholder in the Denver office of the law firm of Greenberg Traurig. He also teaches as an adjunct professor at both the University of Denver Sturm College of Law and the University of Colorado School of Law. He has worked as a U.S. Attorney for the District of Colorado and is recognized for his passion for improving the lives of Native Americans. Eid gave a glimpse into Justice Hobbs’ life before being a Colorado Supreme Court Justice. Justice Hobbs was once a boy scout. He excelled at that, as he has many things in his life, exemplified by his being awarded the Eagle Badge. Justice Hobbs also served in the Peace Corps with his wife Bobbie.

Eid also shared that Justice Hobbs revolutionized water law here in the West through his work in the judiciary. The role of reclamation, as a principle of water management, has changed over the years. During its change, Justice Hobbs has helped people understand, steering the wave by issuing educational decisions on water law throughout his career as a justice. Justice Hobbs’ reputation only grew when he became the focal point in a 2009 primary. In that primary, Congressman McGinnis was accused of plagiarizing an article written by Justice Hobbs. This incident was, according to Eid, Justice Hobbs’ love for “water, personified in the state.”

Eid, like Justice Serna, also had stories to share of times when Justice Hobbs served the Native American community. Justice Hobbs, together with Mike Welsh, obtained a two million dollar grant to set up a workshop for Navajo teachers on tribal sovereignty. The goal of the program was to equip the Navajo teachers with the skills to develop a curriculum and to share their own history with others. Eid concluded his speech by commending Justice Hobbs for his involvement in educating the public of the importance behind Governor Hickenlooper’s formal apology to the Cheyenne and Arapahoe tribes for the Sand Creek Massacre. The massacre occurred on November 29, 1864, when Colorado Territorial militia slaughtered between two hundred and four hundred tribal people. Those murdered were mostly women, children, and elders. It was not until December 3, 2014, that Governor Hickenlooper apologized to the descendants of these tribes, the first formal apology of the massacre from a representative of the State. Justice Hobbs played a large role in making the apology happen. Justice Hobbs gave a speech at the State Capitol that day, and Eid quoted one of the Native American leaders who was present for the ceremony. That leader said of Justice Hobbs, “That judge sure told the truth.”

The panel concluded with a presentation by Professor Sarah Krakoff of the University of Colorado School of Law. She is well renowned in the areas of American Indian law and natural resources law. Krakoff started the American Indian Law Clinic at University of Colorado School of Law, and before that she lived on the Navajo Nation for three years while working for DNA People’s Legal Services. Today, Krakoff regularly takes students to work with traditional farmers in the San Luis Valley. Krakoff and the law students who accompany her work pro bono for low-income farmers engaged in traditional irrigation techniques called “acequias.” Connecting this work to Justice Hobbs’ ultimate respect for indigenous traditions, even when they are contrary to the western doctrine of water law, she presented her work on “The Acequia Project” as “a Hobbsian Trifecta.”

The Acequia Project is a trifecta of three values that are dear to Justice Hobbs: access to justice, scholarship and scholarly writing, and western water law. Krakoff commended Justice Hobbs for all the work and contributions he has made, as an attorney and as a judge, in the realm of water law. Krakoff explained how the Acequia Project benefits the land and farmers of Costilla County, Colorado. The farmers in Costilla County are descendants of original Spaniard settlers.

Next, Krakoff provided some light on why her work is termed the Acequia Project. She explained that acequias are used in irrigation. The water is diverted in a canal from the main source of water, with smaller ditches running off of the canal to provide water to the fields that if flows by. When water is scarce, which is common, determining how to prioritize the water from the acequia for irrigating is handled by each family. This method of irrigating, and equitable division of water distribution, is counter to Colorado’s current water law that recognizes first in time, first in right. Colorado has chosen to recognize acequias as a form of irrigation and assisted these farmers by passing Colorado Revised Statute section 7-42-101.5. This legislation gives the farmers in the valley the right of first refusal, a right given to owners of conventional ditches.

After providing all this background, Krakoff spoke of the other parts of the trifecta. A couple of the students on the Acequia Project have done extensive research and drafted an acequia handbook. There is also a scholarship in place for those participating in the program. The majority of the work done has been by the students of the project, along with collaborators.

Krakoff ended her presentation of the Hobbsian Trifecta with a fourth commitment of Justice Hobbs, one that all of the speakers recognized—his poetry. Krakoff delivered a brief five-line poem, known as a cinquain, she wrote herself in honor of Justice Hobbs. The poem ended by honoring Justice Hobbs as “one of Colorado’s sages.”

The final part of the presentation was a question and answer session. Professor Marsh asked Justice Hobbs to explain the case of Archuleta v. Gomez, a case the Colorado Supreme Court decided in 2012. Having written the opinion, Justice Hobbs explained how the Court determined that a beneficially used water right was subject to adverse possession.