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.


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.



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.


 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.


Denver, Colorado        April 10, 2015

Keynote Address

The 2015 University of Denver Water Law Review Annual Symposium was a celebration and commemoration of Justice Gregory J. Hobbs, Jr.’s contributions to Colorado water law, in light of his coming retirement. The event began with a welcome by Sturm College of Law’s Dean Marty Katz, followed by an opening presentation from Justice Allison Eid and Chief Justice Nancy Rice of the Colorado Supreme Court.

Justice Eid began by sharing how the idea for the symposium stemmed from her sadness that one of her closest friends, her “bench mate,” would be leaving the Court. The symposium was a way to memorialize Justice Hobbs’s contributions to the Colorado Supreme Court and the whole state of Colorado in a permanent, thoughtful way.

Justice Eid then recited Charles Wilkinson’s charge: “We need to develop an ethic of place. It is premised on a sense of place, the recognition that our species thrives on the subtle, intangible, but soul-deep mix of landscape, smells, sounds, history, neighbors and friends that constitute a place, a homeland.” To Justice Eid, this quote aptly captured Justice Hobbs’s life’s work. It was Wilkinson’s “ethic of place” that drew Justice Hobbs to water law in the first place. And as the “Great Water Justice,” his love of Colorado’s landscapes, history, and communities manifested throughout his numerous water court opinions.

Following this introduction, Justice Eid shared some stories exemplifying Justice Hobbs’s commitment to land and water. She described his famous tours of the Colorado Supreme Court, which always begin with a detailed presentation of his prized map collection—a collection he has now generously donated to the Court. She described attending a water conference in Eugene, Oregon where Justice Hobbs seemed to risk life and limb just to climb out on the precipice of a dam they were touring.

Justice Eid shared how Justice Hobbs’s ethic of place includes not only a passion for both the land and water in Colorado, but also for the state’s rich history. She spoke of Justice Hobbs’s passion for history, and his knack for writing opinions that gave the reader a true sense of the history and value of the location in question. To Justice Hobbs, context was always of critical importance. In all of Justice Hobbs’s work, the deep history of the land and people in question, the profound sense of that place, was the necessary foundation for understanding the questions at hand.

Finally, she described Justice Hobbs’s love of neighbors, friends, and family, and his commitment to a diverse and inclusive community in Colorado. She revealed that the Court’s recognition of law firms committed to pro bono work was Justice Hobbs’s brainchild. She also talked about how Justice Hobbs recently took his grandson on a college tour, and is currently taking a creative writing class with his granddaughter. To Justice Hobbs, the ethic of place is rooted in the land, and integrates a profound appreciation of family and friends.

Justice Eid closed by observing that Justice Hobbs is an accomplished author, traveler, historian, and poet. Although he will be retiring from his position on the bench, he will doubtlessly continue in his other “jobs,” tirelessly committed to history, community, and his ethic of place.

Following Justice Eid, Chief Justice Nancy Rice shared her thoughts and reflections on nearly two decades of working with Justice Hobbs. As Supreme Court Justices, the seven members of the Court spend a great deal of time together, often sitting, talking, and waiting for things to happen. To Chief Justice Rice, Justice Hobbs represents one-seventh of her life, her conversation, and her work; and she will greatly miss his camaraderie and friendship.

Of special importance to Chief Justice Rice is the learning center at the Ralph Carr Judicial Center. She described how a committee, which included Justice Hobbs, met regularly for two years in order to create the center, and she believes that the learning center represents one of Justice Hobbs’s greatest legacies.

The Chief Justice’s final story involved Justice Hobbs convincing the other justices to perform a play in commemoration of the founding father John Adams and his wife Abigail. Justice Hobbs played John Adams, and Chief Justice Rice played Abigail Adams. To the delight of the crowd, Chief Justice Rice brought pieces from her costume to share, and reenacted a particular scene where she threw her bonnet in frustration at John Adams’s failure to give women the right to vote in the U.S. Constitution. The play is one of her favorite memories of her time with Justice Hobbs, a representation of the fun, humor, and intellectual curiosity that he brought to the Court.

Chief Justice Rice finished by thanking Justice Hobbs for his friendship, his many contributions to the Court, and his many contributions to the state of Colorado.

Capital Ideas: Public. Private. Partnerships.

As part of its two-day Annual Convention, the Colorado Water Congress hosted a five-member panel discussing how Colorado businesses and regulatory authorities must recognize and address water scarcity issues as business and economic issues.

The first speaker, Will Sarni, a director at Deloitte Consulting and international leader on sustainability, took a commercial view of water scarcity. Deloitte Consulting is a large economic consulting firm aiding in financial advice, human capital, mergers and acquisitions, and many other areas. Sarni conveyed that water scarcity is current, real, and a serious business risk worth the attention of companies. Energy, water, and food are all interconnected and, as such, companies within these various sectors need to pay close attention to water supply and demand issues. Sarni stressed the need for public and private sector collaboration on the issue, and suggested that more companies should incorporate water risk and water stewardship into their business models.

The second speaker, Mike Brod of the Colorado Water Resources and Power Development Authority (“CWRPDA”), spoke of private and public partnerships as well as future capitalization. The CWRPDA provides low-cost financing to governmental agencies in Colorado for water and wastewater infrastructure development. Brod opined that there is a current need to think about changes in tax laws in order to employ more productive private and public partnerships. Going forward, he remarked that there is also a need for future and continued public capitalization of projects. The current loan capacity is sustained by grants from Congress, and in order to rejuvenate and replenish loan programs, Broad stressed the need for future capitalization.

The third speaker, Reeves Brown from the Colorado Department of Local Affairs (“DOLA”), spoke on DOLA’s work regarding water planning and infrastructure. DOLA’s mission is to strengthen communities and enhance livability through sustainable community development. Access to water is a foundational component of DOLA’s mission, and DOLA provides technical and financial assistance for the design and construction of the public water infrastructure. DOLA is currently incorporating water infrastructure planning into flood and fire recovery efforts. DOLA and the Colorado Water Conservation Board have made grant funds available to establish stakeholder coalitions in ten watersheds devastated by floods and fire. They are also developing watershed master plans that will assess the post-disaster damage and prioritize recovery and restoration.

The fourth speaker, Tim Feehan of the Colorado Water Conservation Board (“CWCB”), spoke of the large capital investment needed to construct a sustainable water structure. Feehan made clear that the CWCB is just one piece of a large puzzle within a complex finance fixture, and that a large financial investment will be needed in order for Colorado to meet its water needs. Remedially, CWCB will set up a state-wide funding committee dedicated towards looking at various interest groups. These interests groups will discuss how to deal with the long-term funding within the state. Feehan mentioned that such solutions might come in the form of private and public partnerships, constructive legislation, public funding, and the maximization of existing grant programs. In closing, Feehan stated that the CWCB is facing problems utilizing existing programs and finding additional funding. There is a need to assist entities that already have funding programs and mix them together to become more efficient.

The last speaker, Doug Robotham of the Nature Conservancy, spoke of how companies and public organizations can use impact investments to generate more funding for water infrastructure. Robotham explained that impact investments are adapted into the work of companies, organizations, and funds with the intention of generating measureable social and environmental impact alongside a financial return. Individuals, foundations, private companies, non-governmental, and governmental organizations can all make impact investments. Potential impact investors will want to know whether an investment in water will be viable. Robotham mentioned four factors that potential impact investors will look for: (i) the water resource must have a definable and measurable value; (ii) the organization must have a demonstrated transactional track record; (iii) a low cost of operations, transactions, and scalability; and (iv) the presence of strong growth drivers and measurable impacts.

Overall, the panel provided a detailed synopsis of how Colorado businesses and regulatory authorities need to continue addressing the business and economic issues of Colorado’s water future.


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Opening General Session: Colorado’s Water State of the State

Denver, CO | January 29-30, 2015

How will Colorado provide water to the 2–3 million people moving to the state in the next two decades? Innovation and conservation, said Governor John Hickenlooper and state planners during the opening session of the Colorado Water Congress’s 2015 Annual Convention. The discussion, moderated by Colorado Water Congress President John McClow, included three speakers of different expertise: Governor Hickenlooper, James Eklund, Director of the Colorado Water Conservation Board, and Henry Sobanet, Director of the Office of State Planning and Budgeting (“OSPB”). The panelists discussed the challenges Colorado faces in 2015, how the economic forecast might affect the Governor’s priorities, and the next steps to finalize Colorado’s Water Plan (“Water Plan”).

Gov. Hickenlooper opened the session with a survey of the Water Plan and how it will help Colorado handle its water challenges in the coming years. The Water Plan is the first statewide plan for Colorado’s water. Hickenlooper described the development of the Water Plan as “nothing short of remarkable,” noting the long history of discord among stakeholders over competing interests for water. The Colorado Water Conservation Board developed the first draft of the Water Plan using input from water leaders in each basin across the state. In response to increasing demands for a finite water supply, the Water Plan offers suggestions for conservation and reuse, alternative water transfer methods (as opposed to “buy-and-dry”), and potential agricultural, municipal, and infrastructural projects. Hickenlooper noted that developing the Water Plan was a collaborative effort demonstrating the interdependence of Colorado’s urban and rural areas, from the Western Slope to the Eastern Plains. “When I look at the Colorado Water Plan, I have every reason to be optimistic,” Hickenlooper said.

Hickenlooper emphasized the importance of innovation as encouraged by the Water Plan. Home to one of the top five metropolitan areas in the country for tech startups, Colorado is equipped to prepare for the water challenges ahead, Hickenlooper said. He highlighted one recent innovation in water: IRO, the smart sprinkler by Rachio. Rachio won the Colorado Innovation Network’s “Glorious Failure: In Search of Success Innovation Challenge” with IRO, a sprinkler controller system that adjusts for weather and geography and can be controlled by a smart phone or tablet.

Next to innovation, Hickenlooper emphasized conservation. When asked how Colorado’s declining hydrograph will support its population growth, he said, “We find a way to use a lot less water per person or we don’t have more people coming here. There is no magic.” He acknowledged the rollout of the Water Plan as only the beginning: it is time to access the ideas that have been put on the table and make them better. Hickenlooper presented the first draft of the Water Plan to the public in December 2014, and it remains open for public comment until May 2015.

James Eklund echoed Hickenlooper’s comments on the Water Plan. Eklund emphasized the importance of public feedback on the Water Plan, likening the initial draft to an “open source code” in product development: freely available and open for improvement by anyone. Eklund also acknowledged the current and looming challenges Colorado faces—drought, agricultural “buy-and-dry,” flooding, and climate change—but countered with the promise of the robust Water Plan combined with the collaborative and innovative spirit of Coloradans. Eklund highlighted collaborative efforts already under way, such as the Water, Infrastructure, and Supply Efficiency project (“WISE”) and the Colorado River Cooperative Agreement (“CRCA”). WISE is a partnership between Denver Water and South Metro Water Supply Authority (“South Metro”), allowing Denver Water to sell its excess unused water to entities that are part of South Metro. CRCA is a similar agreement between Denver Water and 42 entities on the Western Slope to benefit water supply, quality and recreation.

Henry Sobanet augmented the discussion on Colorado’s water challenges by explaining Colorado’s current fiscal issues. Sobanet said the current fiscal plan is not working for the taxpayers. Formulas in the plan create negative results for Colorado citizens, particularly in the context of the Taxpayer’s Bill of Rights (“TABOR”). Sobanet explained that two sources of revenue create a TABOR refund: Colorado’s general fund and cash funds. Colorado’s general fund includes revenue from income and sales taxes, while the cash fund includes revenue from fees. When those sources of revenue combined exceed the TABOR limit in a given fiscal year, Coloradans receive a TABOR refund. However, the refund is always drawn from the general fund, regardless of which source of revenue caused the combined total revenue to exceed the TABOR limit. With potential refunds on the horizon, Sobanet emphasized the importance that Coloradans understand how the system works. If a TABOR refund is generated, the refund will come out of the general fund—the fund responsible for Health and Human Services, Public Safety/Courts, K-12 Education, Highway Users Tax Fund, Capital Construction, and Higher Education. Sobanet suggested the fiscal plan would better maximize the taxpayers’ money if it were rewritten to eliminate the formula problem.

As Colorado’s population grows, so does its water and fiscal planning. The Water Plan is the beginning of a long-range effort to meet water supply challenges, but as Governor Hickenlooper said, “water is always in short supply.” Overcoming Colorado’s water challenges requires conservation, cooperation and innovation from water users statewide.


The Colorado Water Congress’s logo is featured above. The CWC does not endorse this blog.


Colorado River Cooperative Agreement: Path to a Secure Water Future, Colorado River District, http://www.crwcd.org/page_336 (last visited Feb. 16, 2015).

Colorado Water Conservation Board, 2014 Draft Colorado’s Water Plan, Colorado’s Water Plan (Dec. 10, 2014), https://www.colorado.gov/pacific/sites/default/files/2014-Draft-Colorado%27sWaterPlan%28FULL%29.pdf.

Water, Infrastructure and Supply Efficiency: WISE, Denver Water, http://www.denverwater.org/SupplyPlanning/WaterSupplyProjects/WISE/ (last visited Feb. 16, 2015).


Historical Perspectives: Does Mitigation Stand the Test of Time

Snowmass, Colorado – August 20-22, 2014

As part of the Colorado Water Congress’s (“CWC”) annual summer conference, Jim Lochhead, CEO and manager of Denver Water, moderated a four panelist discussion entitled “Historical Perspectives: Does Mitigation Stand the Test of Time?”  The discussion centered on Colorado trans-basin water projects and the mitigation of their environmental impacts.  The panelists were chosen to represent differing perspectives, and talk about what they have learned from the past and what has changed in regard to today’s physical and cultural environment.  Jim Lochhead noted that disputes over trans-mountain diversions are not new, and have existed since Coffin v. Left Hand Ditch Co. in the nineteenth century.  He also pointed out that in addition to cities on the front range of Colorado, many western slope cities make use of trans-basin diversions on both large and small scales.

Harold Miskel, formerly the water resource manager of Colorado Springs Utilities, and “Larry Simpson, formerly the general manager of the Northern Colorado Water Conservancy District, presented the perspective from the east slope of Colorado.  During his career, Miskel was involved with the Homestake Water Project; a water supply project jointly operated by the cities of Colorado Springs and Aurora that transfers west slope water from the Eagle River basin to water users on the east slope.  Starting in the early 1960s, and for the rest of his thirty-year career, Miskel took part in the conflicts that resulted from the project, many of which are ongoing today.  He acknowledged that the basin roundtables happening today are beneficial because they create better collaboration.  Although he also stated that in his experience there are three categories of people who get involved in the collaboration process: collaborators, opportunists, and obstructionists.  He noted that obstructionists, those who are willing to defeat you at all costs, can really hinder the progress of a project.

One of the main issues Miskel encountered during his work on the Homestake Project, was the 1041 permitting process.  Miskel discussed how that process was litigated for fifteen years, it is still not completely resolved today, and it caused the costs of the project to go up immensely.  Miskel’s experiences left him with the perspective that the 1041 permitting process needs revising, and he suggested that the new Colorado state water plan presents an opportunity to do just that.  Also, he stated that, while he does believe in the value of mitigation, the current process gives counties decision-making authority in state-wide issues.

Larry Simpson followed by sharing his experiences with the Windy Gap Firming Project. The Windy Gap Project is a water supply project designed to improve the reliability of supply to the Colorado Big Thompson Project, a trans-basin diversion that supplies water to northeastern Colorado from Lake Granby on the eastern side of the continental divide.  Simpson stated that he and Miskel’s experiences were similar. The Windy Gap Project was negotiated extensively with the Colorado River Water Conservation District and the Grand County commissioners, and ended up with large mitigation efforts and compensatory storage as part of the deal.  He gave the opinion that our current permitting and litigation process creates opportunities for stalling, which ultimately causes the costs of a project to increase.  He stated that compensatory storage essentially makes someone pay for something that he/she already owns, and could be considered a form of extortion.  Simpson ended by stating that he believed mitigation would not stand the test of time, because other interests and their successors will keep trying to take another bite out of the apple.

Eric Kuhn, general manager of the Colorado River Water Conservation District, and James Newberry, a Grand County commissioner, gave a perspective from the western slope.  Kuhn noted that the issues surrounding trans-mountain diversions having been going on since the 1930s.  In his view, this is one of the factors making current mitigation negotiations more difficult; in order to be successful in mitigation everyone needs to be included from the beginning.  He also said that the issues are not only trans-basin issues, but also inter-basin issues, and they need to be viewed as a connected system in terms of exports of water.

James Newberry addressed earlier comments about the 1041 permitting process.  He thought the process gave everyone a chance not to be blind-sided. He stated that from the Grand County perspective, the way that the Colorado Big Thompson Project was operated prior to the 1041 permitting negotiations did not do a good job of distributing the affects between all the parties involved.  He said the rivers of Grand County were being negatively impacted, and noted that the Fraser River was recently listed as endangered.  Newberrywas a part of the early negotiations with the Denver Water Board; he credited them for stepping out of their comfort zone, doing the right thing, and looking for solutions.  In Newberry’sopinion, leaders stepped up, created an adaptive management plan, and are now going forward joined at the hip.  He reminded the audience that while it is easy to identify problems, it is not nearly as easy to find solutions.  He drew a laugh from the audience by comparing “Free Tibet” bumper stickers to the Save the Fraser (River) campaign; it is easier to say it than to actually do it.  Newberry reiterated that he thought the 1041 permitting process was beneficial because it identified issues and did not streamline the process.  In his opinion, the process requires people at the grassroots level who understand what the rivers need, in order to help save them.

Lochhead ended the discussions by suggesting that if this experiment in partnering fails, we could end up in a state of gridlock.