California Water Law Symposium - 2019

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2019 15th A NNUA L

CALIFORNIA WATER LAW SYMPOSIUM

California Groundwater: SGMA & Beyond Hosted by

Saturday, February 2, 2019 UC Hastings College of the Law


ABOUT THE SYMPOSIUM The California Water Law Symposium is a collaborative student-run event that consistently brings together leading minds in water law to discuss California’s critical water issues. Led this year by UC Hastings College of the Law, participant schools include USF School of Law; Golden Gate University School of Law; UC Berkeley School of Law; UC Davis School of Law; Stanford University Law School; and University of the Pacific, McGeorge School of Law.

BOARD OF DIRECTORS

Aaron Baker

UC Hastings College of the Law ’08

Thomas Hicks

University of San Francisco School of Law ’05

Steve Westhoff

Susan Gilbert-Mil ler

Elizabeth Sarine

Madeleine Weisz

University of San Francisco School of Law ’11

UC Berkeley School of Law ’12

FACULTY ADVISORS

UC Davis School of Law ’13

Hol ly Doremus

Alice Kaswan

Harrison “Hap” Dunning

Paul Kibel

Richard M. Frank

Dave Owen

UC Berkeley School of Law UC Davis School of Law (King Hall) UC Davis School of Law (King Hall)

Jennifer L. Harder McGeorge School of Law

UC Davis School of Law ’14

University of San Francisco School of Law Golden Gate University School of Law UC Hastings College of the Law


9:00 am – 9:45 am Opening Remarks: UC Hastings Co-Chairs, Lauren Marshall & Olivia Molodanof Introductory Speaker: Dave Owen Keynote Presentation: Felicia Marcus, Fran Pravley & Richard Frank 9:45 am – 11:00 am Panel 1: SGMA for All: Ensuring Equal Access to Clean, Affordable Groundwater (Organized by UC Davis School of Law) Panel 2: Groundwater Contamination: Are We Stuck With It? (Organized by USF School of Law) Break 11:15 am – 12:30 pm Panel 3: Questions of Common Supply: SGMA Requirements for Interconnected Surface Water and Groundwater (Organized by Golden Gate University School of Law) Panel 4: New Developments in Tribal Water Rights: Agua Caliente & SGMA (Organized by Stanford University Law School) 12:30 pm - 1:30 pm Lunch & Keynote Speakers: Felicia Marcus, Fran Pavley, and Richard Frank Break 1:45 pm – 3:00 pm Panel 5: The Elephant in the Room: Adjudication Under SGMA (Organized by University of the Pacific, McGeorge School of Law) Panel 6: Building a Strong Foundation: How GSAs are Structured Under SGMA (Organized by UC Berkeley School of Law) 3:15 - 5:00 pm Reception Sponsored by Briscoe Ivester & Bazel LLP


2019 SYMPOSIUM ORGANIZERS

LAUREN MARSHALL Chair, UC Hastings College of the Law

OLIVIA MOLODANOF Chair, UC Hastings College of the Law

HOLLY LOCKE UC Hastings College of the Law

KAITLIN SHERBER UC Hastings College of the Law

KELILAH FEDERMAN UC Hastings College of the Law

KELSEY GALANTICH UC Hastings College of the Law

AARON LEE UC Berkeley School of Law

CHELSEA MITCHELL UC Berkeley School of Law

TAYLOR WETZEL UC Berkeley School of Law

JUSTINE MASSEY UC Davis School of Law

PETER JANSEN UC Davis School of Law

DANIEL SANTOS Golden Gate University School of Law

JESSICA JANDURA Golden Gate University School of Law

L. VICTORIA WANG Golden Gate University School of Law

KATHLEEN FINNIGAN University of the Pacific, McGeorge School of Law

KEVIN BURSEY University of the Pacific, McGeorge School of Law

SARAH ROWAN Stanford University Law School

DONNA NI Stanford University Law School

DILLON ITRI University of San Francisco School of Law

ELIZABETH GINISE University of San Francisco School of Law


OPENING REMARKS Lauren Marshal l

UC Hastings, Co-Chair A third-year law student with an environmental law concentration at UC Hastings, Lauren became passionate about water supply issues as a Sacramento native and during her studies in Environmental Management at Cal Poly San Luis Obispo. Her law school internships have included Gross & Klein LLP, the Center for Biological Diversity, the California Coastal Commission, and currently, the State Water Resource Control Board Chief Council’s Office. She serves as a Senior Editor for the Hastings Environmental Law Journal, former president of the Hastings Environmental Law Association, and competitor at the National Environmental Law Moot Court Competition.

Olivia Molodanof

UC Hastings, Co-Chair A third year law student at UC Hastings, Olivia graduated from Cal Poly, San Luis Obispo with a B.S. in Agricultural Business. Olivia is the Executive Manager for the Hastings Environmental Law Journal and a member of the Alternative Dispute Resolution Team. She recently published an article in the California Water Law Journal regarding SGMA and the Paso Robles Groundwater Basin. This past summer, Olivia was a summer associate at Hunton Andrews Kurth and this past fall semester she worked as a law clerk with Shute Mihaly & Weinberger.

INTRODUCTORY SPEAKER Dave Owen

Harry D. Sunderland Professor at UC Hastings He teaches courses in environmental, natural resources, water, and administrative law. His research focuses primarily on water resource management; recent projects have addressed groundwater use regulation, taxation of water consumption, the roles of federal regional offices, stream protection under the Clean Water Act, and policies to expedite dam removals and hydropower upgrades. Several of his articles have won awards, and in 2017, he received Hastings’ highest award for teaching. Before coming to Hastings in 2015, he practiced land use and water law in California and then taught at the University of Maine School of Law.

KEYNOTE PRESENTATION

Felicia Marcus Calif. State Water Resources Control Board Chair, appointed by Governor Jerry Brown

Before her appointment to the Water Board, Felicia served as the Regional Administrator of the U.S. EPA Region IX in the Clinton Administration, head of Los Angeles’ Department of Public Works, the Western Director for the Natural Resources Defense Council, and the Executive VP/COO of the Trust for Public Land. She currently serves or has served in the past on the Public Policy Institute of California Statewide Leadership Council, Sustainable Conservation, USC-Kesten Institute for Public Finance and Infrastructure Policy, and the Center for Diversity and the Environment. She is also currently an Obama Administration appointee to the Commission on Environmental Cooperation-Joint Public Advisory Council (US, Mexico, Canada) and was a Schwarzenegger Administration appointee to the Delta Stewardship Council prior to being appointed to the Water Board.

Fran Pavley

Environmental Policy Director for the USC Schwarzenegger Institute Elected the first mayor of Agoura Hills in 1982, and served 14 years in the California Assembly and the State Senate; former State Senator Pavley authored landmark climate policies (AB 1493, AB 32, SB 32, and others) that have created a market for innovation and investment in clean energy and vehicles, which helped clean up our air, grow the economy, and reduce greenhouse gas emissions. As chair of the Senate’s Natural Resources and Water Committee, she was able to pass the state’s first Sustainable Groundwater Management Act, promote policies to protect our ocean and watersheds, and adopt measures to create more sustainable local water supplies. She currently serves on several state and local advisory boards and committees.

Richard Frank

Professor of Environmental Practice and Director of the U. C. Davis School of Law’s California Environmental Law & Policy Center From 2006-2010, he served as Executive Director of the Center for Law, Energy & the Environment and as a Lecturer in Residence at the U.C. Berkeley School of Law. From 1977-2006, he served in various legal capacities with the California Department of Justice, culminating as Chief Deputy Attorney General for Legal Affairs (2003-06). During most of his career with the Department, Frank focused on land use and public land management issues. Mr. Frank received his law degree from the University of California at Davis in 1974.


SGMA for All: Ensuring Equal Access to Clean, Affordable Groundwater Panel Organized by UC Davis School of Law In 2012, California passed AB 685, making it the first state to legally recognize the human right to drinking water. Will we make good on this priority in the implementation of SGMA? How do we get safe and affordable drinking water to all Californians? What is fair to public and private interests in terms of access to underground basins/aquifers? Panelists will explore the barriers, competing needs and opportunities for equitable water management, and describe solutions for providing disadvantaged communities with clean, affordable groundwater.

Jennifer Clary

Horacio Amezquita

Kristin Dobbin

Sam Boland-Brien

Clean Water Action, Water Programs Manager

Regional Water Management Coordinator, Community Water Center

PANEL I

Manager, San Jerardo Housing Cooperative

Senior Engineer, State Water Resources Control Board


Groundwater Contamination: Are We Stuck With It? Panel Organized by University of San Francisco School of Law Sponsored by Hanson Bridgett LLP Groundwater nitrate contamination is a major issue in California, particularly throughout the Central Valley, one of the most productive agricultural areas in the United States; however, production comes at a cost: nitrate contamination of drinking water sources. Elevated nitrate concentrations in groundwater are a concern not only for private well owners, but also for community service districts and municipalities who rely on groundwater wells. Drinking water with a nitrate concentration greater than 10 mg/L NO3 -N can result in health effects such as low infant blood oxygen levels, miscarriages, and certain types of cancers. This panel will discuss the cause, effects, and remediation of elevated nitrate concentrations of groundwater in Central Valley, California.

Thomas Harter

Debi Ores

Nathan Metcalf

Theresa Dunham

Robert M. Hagan Endowed Chair for Water Resources Management and Policy, University of California, Davis

Partner, Hanson Bridgett

Staff Attorney, Community Water Center

Managing Shareholder, Somach Simmons & Dunn

Emel Wadhwani

Assistant Chief Counsel, State Water Resources Control Board

PANEL II


Questions of Common Supply: SGMA Requirements for Interconnected Surface Water and Groundwater Panel Organized by Golden Gate University School of Law Sponsored by Downey Brand LLP This panel will address the relationship between SGMA groundwater plans and various surface water issues such as surface flows, streams, water basins, and fisheries. The frequent hydrological connections between surface waters and groundwater leave in-stream flows and fisheries highly affected by groundwater pumping and SGMA. Panelists will discuss the structure of SGMA and how it addresses these water connections, as well as the effects they have on fisheries. They will explain how to determine what is an undesirable result under SGMA using undesirable results under this framework. These experts will also provide an overview of California law of surface water and groundwater rights, including the SGMA grandfather clause, the common supply doctrine, and the public trust doctrine.

Kevin O’Brien

Partner, Downey Brand LLP

Richard Frank

Professor of Environmental Practice; Director, UC Davis School of Law’s California Environmental Law & Policy Center

Andrew Sawyer

Assistant Chief Counsel, State Water Resources Control Board

PANEL III

Alletta (Letty) Belin Consultant, Alletta Belin Consulting LLC

Paul Stanton Kibel

Water and Natural Resource Counsel, Water and Power Law Group


New Developments in Tribal Water Rights: Agua Caliente and SGMA Panel Organized by Stanford University Law School Sponsored by Somach Simmons & Dunn Groundwater will continue to be an increasingly important resource for Indian tribes in the arid western states, as water supplies shrink under the pressure of growing populations and the effects of climate change. With the U.S. Supreme Court’s recent announcement that it would not hear the appeal in the Agua Caliente case, the application of tribal reserved water rights to groundwater is settled. This panel will address current developments in tribal water rights, the interaction between SGMA and tribal water rights, and the challenge of ensuring that tribes can plan a responsible water future for themselves and future generations in the face of competing interests. Stanford Law School faculty will discuss interaction between existing tribal land use laws and SGMA and the implications of the Agua Caliente decision beyond SGMA.

Heather Whiteman Runs Him Staff Attorney, Native American Rights Fund

Robert Anderson

Professor of Law; Director, University of Washington School of Law’s Native American Center

Barton H. “Buzz” Thompson, Jr.

Professor of Natural Resources Law, Stanford University; Senior Fellow, Woods Institute for the Environment

PANEL IV


The Elephant in the Room: Adjudication Under SGMA Panel Organized by University of the Pacific, McGeorge School of Law

Sponsored by Kronick Moskovitz Tiedemann & Girard

This panel will discuss the courts’ role in balancing the need to achieve “sustainable yield” under SGMA and respecting the rights of groundwater pumpers. SGMA incorporates the existing framework for water rights in California, assuring that nothing in SGMA will alter surface or groundwater rights under the common law. However, SGMA was created to prevent the “undesirable results” caused by unmanaged groundwater pumping. This begs the question: how will these two promises be reconciled? This panel will discuss several related sub-topics: Assembly Bill 1390 and Senate Bill 226, SGMA in light of the Long Valley decision (1979), how basins adjudicated under SGMA will coalesce with bordering basins, conflicts between Groundwater Sustainability Plans and water rights, conflicts between technical data and court decisions concerning “sustainable yield,” and separation of powers between Groundwater Sustainability Agencies and the courts. The following list of panelists are all experts in the field and represent different interests that will provide for engaging discussion and debate.

The Honorable Ronald Robie

Associate Justice, Third District of the California Courts of Appeal

Christina Babbitt

Senior Manager, California Groundwater Program at Environmental Defense Fund

PANEL V

Eric Garner

Managing Partner, Best Best & Krieger LLP


Building a Strong Foundation: How GSAs are Structured Under SGMA Panel Organized by UC Berkeley School of Law Sponsored by Ellison Schneider Harris & Donlan LLP SGMA required Groundwater Sustainable Agencies (GSAs) to form in the State’s high and medium priority basins and sub-basins. Now, these newly formed GSAs are starting to create their Groundwater Sustainable Plans. This panel will provide an overview of existing GSA structures, how GSAs should be formed to ensure stakeholders are adequately represented, and provide a case study of SGMA implementation in Butte County—where many GSAs are managing the same sub-basins.

Nell Green Nylen

Senior Research Fellow, Wheeler Water Institute, Center for Law, Energy & the Environment

Nicole Kuenzi

Staff Counsel, State Water Resources Control Board

Paul Gosselin

Director, Butte County Department of Water and Resource Conservation

Adriana Renteria

Regional Water Management Coordinator, Community Water Center

PANEL VI


THANK YOU TO OUR GENEROUS SPONSORS! PANEL SPONSORS

SYMPOSIUM SPONSORS

ADVERTISING SPONSORS

RECEPTION SPONSORS

PARTICIPATING SCHOOLS

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