Thirsting for Change: How the Growth of the Biofuel Industry Can Stimulate Advancements in Water Law

Biofuels, which have the potential to decrease domestic dependence on for-eign oil, are not a problem-free solution. One substantial yet little-discussed problem that increased biofuel production presents is a related increase in water consumption. Given that many local water sources across the United States are already stressed by overconsumption, and many more will likely become stressed in the future, increased biofuel production poses a substantial threat to small-scale local water users in prime biofuel states, particularly in the Midwest. This Note examines current state and federal water laws and the ways in which they are inadequate to resolve the con-flicts over water use that will arise between the biofuel industry and small-scale local water users.This Note begins by explaining the process of producing biofuel, focusing on ethanol, and highlighting the crucial role water plays within this pro-cess. Next, the author provides an overview of the fundamental principles of water law, including the rules that determine the amount of water that can be used, where and how the water can be used, and the extent to which pollutants can be discharged into water sources. The author also evaluates the current state of water use in the U.S., highlighting mounting water shortages due to overconsumption.Increased production of biofuels implicates water laws because biorefin-eries will be diverting or pumping large amounts of surface water or groundwater while industrial biofuel-crop farmers will be using greater amounts of water to produce larger yields. These increased uses will in-evitably clash with existing small-scale local water users. The reasona-ble use rule, used by most Midwestern states, will be inadequate to re-solve these conflicts. Similarly, the Federal Clean Water Act is limited in its ability to resolve conflicts over water quality. To address these inadequacies in current water law, the author proposes a three-fold ap-proach. State and federal legislatures need to reform the theoretical underpinnings of water law to emphasize sustainability. Legislatures and courts should begin this lengthy process immediately by modifying the reasonable use rule and the Federal Clean Water Act as they are applied. Lastly, there is a need for societal change; communities need to demand effective water management and must shift their focus to conservation of existing water sources. Ultimately, the push to increase biofuel production could be the impetus for much-needed reform of federal and state water laws.

The full text of this Note is available to download as a PDF.