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CORN FOR ETHANOL: CLIMATE AND WATER MANAGEMENT

By Martha Drouet*

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ABSTRACT

Ethanol, a biofuel that is derived mainly from corn grown in this country, is a large part

of America’s policy on energy reform. It is lauded especially for its supposed environmental

benefits. The major goal is to combat global warming, stimulate the local economy, and

decrease the country’s reliance on foreign oil supplies. However, this seemingly effective and

utopian process will ultimately result in detrimental effects—specifically to water resources in

this country.

Producing ethanol from corn is an incredibly water consumptive process: a lot of water

is needed to grow it initially and then to ferment it into ethanol. Corn is grown either through

rainfall or the use of groundwater. Incidentally, a large majority of the corn produced for

ethanol is grown in states that rely on groundwater for agriculture, especially Nebraska.

Groundwater is recharged through precipitation or surface water. In light of climate

change, the nation has seen the most severe drought in fifty years. Moreover, the ethanol

industry already adds stress to groundwater sources. Without proactive drought law and water

management planning, the formula created by the ethanol industry and climate change will be

destructive to the water resources in this country. This paper explores the consumptive

processes of growing corn, refining it for ethanol production, and how both water law and water

availability will ultimately be affected in light of drought caused by climate change.

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TABLE OF CONTENTS

I. Introduction –Ethanol and Biofuel…………………………………………………….4 II. Biorefineries…………………………………………………………………………...7 III. Corn Production……………………………………………………………………….8 IV. Ground Water and Aquifers…………………………………………………………...9 V. Climate Change………………………………………………………………………11 VI. Water Law……………………………………………………………………………12 VII. Drought Response and Water Law…………………………………………………..14 VIII. Solutions……………………………………………………………………………..17 IX. Conclusion………………………………………………………………………...…19

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I. Introduction – Ethanol and Biofuel

Now, more than ever, we need a solution that localizes energy production and decrease s

dependency on nonrenewable fossil fuels, because the entire world is vying for the limited

supply of nonrenewable fossil fuels, which mainly come from the conflict-heavy Middle East.

Biofuel was touted as the saving grace and has much political backing as our solution to

renewable energy and energy independence.

Biofuel is a type of biomass. Biomass is recently living matter that can be converted or

refined to produce workable energy in the form of fuel or power production.1 Biofuel is a liquid

fuel that is used as fuel for cooking, transportation, or heating.2 Some biofuels are derived from

starch-based biological material.3 Starch-based material used for biofuel production can include

municipal waste, woody crops, corn, soybean, poplar, perennial grasses, and vegetable oil.4

Biofuel includes ethanol, biodiesel, and methanol.5

In the United States, we produce and rely primarily on ethanol, which is also called

“ethyl alcohol.”6 In the United States, we derive 90% of ethanol from corn, largely because it

grows so well in our Corn Belt heartland (the Midwest).7 Other countries with tropical climates,

such as Brazil, grow sugar cane for ethanol; sugar is eight times more production-efficient than

                                                                                                               *The author is a third-year J.D. student at Chicago-Kent College of Law concentrating in Environtal Law and Policy with a background in visual anthropology, architectural theory, and art history. She is pursuing a career in environmental law with special knowledge and experience in water resource management, transportation, and animal law. 1 U.S. Biofuels Policy, The Rush to Ethanol: Not all Biofuels are Created Equal 9 (2007), available at http://kansas.sierraclub.org/wind/rushtoethanol-report.pdf. 2 Id. 3 Jacqueline M. Wilkosz, Thirsting for Change: How the Growth of the Biofuel Industry Can Stimulate Advancements in Water Law, 2009 U. ILL. L. REV. 583, 587 (2009). 4 Id. 5 Id. 6 Jonathan Volinski, Shucking Away the Husk of a Crop Gone Wrong: Why the Federal Government Needs to Replant its Approach to Corn-Based Ethanol, 25 TUL. ENVT’L L.J. 507, 509 (2012). 7Id.

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corn.8 Ethanol can also be produced from old newspapers, crop residues, wood, and cellulosic

feedstock (grass).9

The United States has relied on political clout to encourage the production and use of

ethanol to reduce the composition of nonrenewable fuels. Ethanol has supplanted 3.5% of the

gasoline supply in the United Stakes.10 The United States seeks to raise this figure to 30% by

2030 as part of the Energy Independence and Security Act of 2007 (EISA).11 EISA mandated

that gasoline producers progressively add higher percentages of corn ethanol to gasoline.12 State

programs, especially those in the Midwest, incentivize ethanol production by subsidizing corn

and encouraging [whom?] to substitute gas with biofuel.13

14

Ethanol is touted as the best viable renewable option—preferable to oil and popular for

its supposed environmental benefits.15 Corn for ethanol production has been part of a branding

campaign—“live green, go yellow,” which claims that ethanol is the fuel for a cleaner future.16

                                                                                                               8 Id. 9 Volinski, supra note 7, at 509. 10 U.S. Biofuels Policy at 10. 11 Id. 12 Dan Tarlock, Water Demand and Energy Production in a Time of Climate Change, 5 EVNT’L & ENERGY L. & POL’Y J. 325, 333 (2010). 13 Volinski, supra note 7, at 522. 14 Projected Corn-Based Ethanol Production Would Dominate Water Consumption for the Energy Sector, ENVIRONMENTAL SCIENCE DIVISION, http://web.ead.anl.gov/USFS/news/dsp_news.cfm?id=94. 15 Wilkosz, supra note 3, at 586. 16 U.S. Biofuels Policy at 22.

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Because it is renewable and grows locally, ethanol also reduces our dependence on foreign oil

and creates jobs in the United States.17

18

Notwithstanding its across-the-board popularity, corn-based ethanol is not the perfect

solution to the country’s energy plagues. First, there are conflicting studies regarding the net

energy ratio. To calculate energy ratio, one must divide the energy produced by the

nonrenewable energy needed to produce it.19 This includes all energy input, including the fuel

needed to manufacture fertilizer, run farm machinery, transport corn, distill corn, and distribute

                                                                                                               17 Volinski, supra note 7, at 507. 18 U.S. Biofuels Policy at 10. 19 U.S. Biofuels Policy at 18.

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ethanol.20 There have been numerous studies on how effective ethanol is in light of these factors

and these studies come to different conclusions about whether there is positive energy gain or

loss.21

Moreover, producing corn for ethanol has a lot of secondary effects. For example, the

high demand for corn in ethanol production has swayed the market one way and has caused

prices for livestock corn feed and corn for food prices to skyrocket.22 Moreover, subsidizing the

ethanol industry has funneled money to large corporations.23 Incentives to produce corn further

exasperate the negative environmental impacts, including an increase in national soil erosion,

eutrophication of rivers, increased use of environmentally damaging fertilizers, and ultimately

effecting waterways and aquatic habitats from runoff.24

These effects, however, may not be as dire as the negative implications on our nation’s

water supply. Massive amounts of water are used to produce corn and refine it into ethanol.

II. Biorefineries

Corn is converted to ethanol in biorefineries, which are largely located in Midwestern

states.25 In a 2007 survey, there were 119 ethanol refineries in the United States.26 Currently, 77

more are under construction.27

Biofuel is created in these refineries through a conversion process.28 This process breaks

down corn’s starches into sugars and those sugars into ethanol.29 Fresh water is used at almost

                                                                                                               20 Id. at 18. 21 Id. 22 Volinski, supra note 7, at 508. 23 Id. at 513. 24 U.S. Biofuels Policy at 24. 25 Wilkosz, supra note 3, at 587. 26 U.S. Biofuels Policy at 11. 27 Id. 28 Wilkosz, supra note 3, at 587. 29 Id.

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every stage—to break down the corn and to heat and cool the production process.30 The water

then evaporates in the leftover solids or drying sillage and emits steam.31 The primary

consumption of water is through this evaporation process.32 Water that isn’t evaporated is

discharged as wastewater which is heavily contaminated with brine and salt from the corn

fermentation process.33 This process is therefore consumes water on a very large scale. One

gallon of ethanol requires four gallons of water for production.34 In perspective, “a plant that

produces 100 million gallons of ethanol per year would consume about 1.1 million gallons of

water per day.”35

This process has been deemed “costly and dangerous”36 and might lead to a water crisis

should biorefineries expand to more arid areas or if other refineries are exacerbated by drought,

as they were in—2012.37

III. Corn Production

Corn needs water to grow and gives it back to the atmosphere through transpiration.38

The amount of water which corn needs varies by region, depending on rainfall. For example,

states such as Iowa, Illinois, Ohio, and Missouri need about 19 gallons of water per bushel from

either surface or ground sources as their crops are largely rain-fed.39 Rain-fed crops will

ultimately impact local water sources less than corn crops that rely on irrigation, which takes

                                                                                                               30 Id. 31 Id. 32 Lindsey Marie Higgins, Regional Differences in Corn Ethanol Production: Profitability and Potential Water Demands (May 2009) (unpublished Ph.D. dissertation, Texas A&M University). 33 Wilkosz, supra note 3, at 588. 34 U.S. Biofuels Policy at 29; Wilkosz, supra note 3, at 588. 35 Wilkosz, supra note 3, at 588. 36 Tarlock, supra note 12, at 334. 37 Suzanne Goldenberg, Drought Worsens in Midwest and Threatens Next Year’s Corn Crop, THE GUARDIAN (Aug. 2, 2012, 12:55 EDT) http://www.guardian.co.uk/environment/2012/aug/02/drought-worsens-midwest-corn-crop. 38 Wilkosz, supra note 3, at 589. 39 Id. at 590.

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water from surface or groundwater sources.40 It would thus make more sense to limit corn

production primarily to those states that can sustain crops with rainfall. This, however, is not the

case, and the production of corn-based ethanol is exhausting groundwater sources.

The primary states that produce corn for ethanol (as opposed to for feedstock or human

consumption) are the Dakotas, Minnesota, Iowa, Nebraska, and Missouri.41 All of these states

rely heavily on groundwater to irrigate crops and the water consumption from these states is

expected to increase by 250% by 2030, the year slated by ethanol policy initiatives.42 Nebraska

is where the majority of biofuel crops are produced, making up around 72% of the nation’s

total.43 Rainfall during the growing season is lower in Nebraska than in its neighboring eastern

states, and thus, a bushel of corn can require up to 865 gallons of water.44 As a result, Nebraska

uses groundwater from aquifers, especially the Ogallala Great Plains Aquifer, to supply the water

needed for irrigation for corn.

IV. Groundwater and Aquifers

Aquifers are naturally occurring, underground formations made of permeable materials

such as rock or clay.45 Because the material is permeable, it relies on precipitation and surface

water to replenish its supplies. Aquifers form where precipitation penetrates the earth’s surface

and “percolates through the rock and soil via gravity.”46 Where an aquifer is below a stream, it

may be replenished through the aquifer’s zone of saturation.47 The zone of saturation is the top

                                                                                                               40 Id. 41 Projected Corn-Based Ethanol Production Would Dominate Water Consumption for the Energy Sector, ENVIRONMENTAL SCIENCE DIVISION, http://www.evs.anl.gov/new/dsp_news.cfm?id=94 (January 9, 2009). 42 Tarlock, supra note 12, at 334. 43 Volinski, supra note 7, at 518. 44 Wilkosz, supra note 3, at 597. 45 Id. 46 Id. 47 Id.

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level of the water table at which rock or soil is completely saturated with water.48 Thus, aquifers

are heavily linked to the hydrologic cycle as surface water supports groundwater and vice versa.

This delicate balance is susceptible and endangered by change. Climate change, for example,

alters precipitation patterns which will ultimately affect aquifer recharge through percolation.49

Over-pumping also negatively impacts stream flow.50 Thus, aquifers’ water tables tend to be

much lower than they were decades ago and continue to decline further, largely because aquifers

store more than they yield.51

The largest underground aquifer in the United States is the Ogallala High Plains

Aquifer.52 It covers 174,000 square miles below parts of Colorado, Kansas, Nebraska, New

Mexico, Oklahoma, South Dakota, Texas, and Wyoming.53 Of the water pumped from the

aquifer, 95% is used for agriculture.54 As of 2010, Kansas and Nebraska monopolized the corn

ethanol production industry with 33 operational ethanol plants.55 This adds additional stress to

already dropping levels of water contained in the aquifer. The Ogallala Aquifer is essentially

nonrenewable because its low recharge rate ranges from 0.02 inches to 6 inches.56 As a result,

the ethanol industry relies largely on the Ogallala Aquifer. However, in light of climate change

effects to precipitation patterns, recharge will likely drop further, negatively impacting the

aquifer, the states which rely on it, and the ethanol industry itself.

                                                                                                               48 Id. 49 Carolyn Brickey et al., How to Take Climate Change into Account: A Guidance Document for Judges Adjudicating Water Disputes, 40 ENVT’L L. REP. NEWS & ANALYSIS 11215, 11220 (2010). 50 Wilkosz, supra note 3, at 592. 51 Id. 52 Jeffrey A. Edwards et al., Building a Simple General Model of Municipal Water Conservation Policy for Communities Overlying the Ogallala Aquifer, 52 NAT. RESOURCES J. 135, 139 (2012). 53 Id. at 138. 54 Id. at 139. 55 Id. 56 Id. at 140.

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V. Climate Change

The global climate has been changing beyond its natural parameters. The climate

typically changes slightly from natural causes. For example, the global temperature is effected if

a forest is struck by lightening and catches on fire or a volcano erupts and spits ash into the sky.57

However, the extreme temperature change in the last few decades cannot be attributed to natural

causes.58 It is more likely that anthropogenic impact (impact from human activities) is the cause

of climate change. Humans release greenhouse gases (GHG) that increase the amount of heat

trapped in the ozone.59 As a result, the average surface temperature of the earth has increased by

1.4 degrees Fahrenheit.60 Oceans have warmed, and this warmth is now detectable at great

depths, the polar ice sheets have lost mass, and the alpine glaciers are melting.61 Climate change

has also effected the ethanol industry. Temperatures have increased even more rapidly in the

Great Plains: , up by 1.5 degrees Fahrenheit since the 1960s.62 Other known sources such as

change in earth orbit, volcanic particles or solar variability cannot explain this dramatic

change—carbon monoxide and GHGs are the only reasonable explanations.63

Global warming, as a result, decreases the quality and quantity of water, among its many

other negative effects on corn production.64 Severe drought is one of the most serious impacts

                                                                                                               57 John N. Moore & Kale Van Bruggen, Agriculture’s Fate Under Climate Change: Economic and Environmental Imperatives for Action, 86 Chi.-Kent L. Rev. 87, 88 (2011). 58 Carolyn Brickey et al., How to Take Climate Change into Account: A Guidance Document for Judges Adjudicating Water Disputes, 40 ENVT’L L. REP. NEWS & ANALYSIS 11215, 11216 (2010). 59 Moore & Bruggen, supra note 57, at 88. 60 Id. 61 Brickley et al., supra note 49, at 11218. 62 Moore & Bruggen, supra note 57, at 90. 63 Brickley et al., supra note 49, at 11218. 64 Moore & Bruggen, supra note 57, at 90.

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of climate change.65 The International Panel on Climate Change (IPCC) predicts that drought

will even be a large concern with heavy precipitation because the volatile climate is susceptible

to extreme flooding, which could severely damage the supply of freshwater.66 This raises a

serious concern for the ethanol industry because corn is an extremely water intensive crop. In

light of increased temperatures and drought, states like Nebraska that already rely mostly on

groundwater for their water supply will be forced to further exacerbate their resources .

Moreover, climate change will also harm the states east of Nebraska which produce corn-based

ethanol with rainfall. Flooding and drought will lead these states to rely on other water resources

for support, ultimately putting pressure on water law and litigation.

VI. Water Law

The states in the central region of the United States that contain largely water

consumptive biorefineries and corn fields tend to follow the riparian doctrine of water law. This

is because that region has historically had more plentiful water supplies than arid western states.

Western states tend to follow the water law of prior appropriation.67 Under riparianism,

consumptive rights to use surface and groundwater go to the landowner.68 That use, however,

must be reasonable. This reasonableness standard balances the benefits of water use with the

injury to other riparian owners.69 Reasonableness also compares how efficient the water use is to

the possibility of reducing conflict by changing practices.70

                                                                                                               65 Robert W. Adler, Balancing Compassion and Risk in Climate Adaptation: U.S. Water, Drought, and Agricultural Law, 64 FLA. L. REV 201, 204 (2012). 66 Brickley et al., supra note 49, at 11220. 67 Wilkosz, supra note 3, at 593. 68 Id. at 594. 69 Wilkosz, supra note 3, at 594-6. 70 Id.

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Many states, as a result of the biofuel boom, have legislated in a regulated riparianism

approach.71 These states include Iowa, Minnesota, Michigan, and Wisconsin.72 It is important to

note that Nebraska has not created a regulated riparian system for its water use, even though it is

responsible for 72% of the corn grown for ethanol and is the home to over 10 biorefineries.73

Regulated riparianism is a system where the state issues permits based on the regulated

water use.74 Iowa, for example, requires permits to withdraw water from any surface or

groundwater source.75 Under regulated riparianism, permits are issued based on reasonable use

factors and remain flexible enough to be amended in times of water shortages.76

The states overlying the Ogallala Aquifer follow riparianism as well; these states require

that the groundwater withdrawn must be used for beneficial or reasonable purposes.77 In

Nebraska, the leader in corn for ethanol production, groundwater is seen as a public resource.

The use of groundwater is subject tot correlative rights.78 As a result, where groundwater supply

becomes low or insufficient, landowners acquire the proportion of the groundwater that they own

related to the proportion owned by other landowners.79 Unlike other biofuel states, Nebraska

does not include a permitting program that can be adjusted for climate shifts and water shortages.

Climate change “undermines basic premise in water disputes that the past is a fair predictor of

the future.”80 Nebraska’s legal approach and its monopoly of the highly water consumptive

                                                                                                               71 Id. at 599-600. 72 Id. at 600, n. 141. 73 Volinski, supra not 85, at 517. 74 Id. at 600. 75 Id. 76 Wilkosz, supra note 3, at 601. 77 V.L. McGuire et al., Water in Storage and Approaches to Groundwater Management, High Plains Aquifer, 2000, U.S. GEOLOGICAL SURVEY CIRCULAR 1243, 47 (2003), http://pubs.usgs.gov/circ/2003/circ1243/pdf/C1243.pdf. 78 Id. at 40 79 Id. 80 Brickley et al., supra note 49, at 11215.

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ethanol industry, when combined with drought and the depletion of the Ogallala Aquifer, creates

disputes over the destruction of water resources.

VII. Drought Response and Water Law

The Midwestern United States is experiencing the worst drought in 50 years.81

Agricultural drought is a deficiency in soil moisture relative to the needs of the crop.82 This

leads to a reduced crop yield or lower quality of the crop itself.83 As a result, in November 2012,

corn production was down by 27.5% from May 2012.84 Climate change exacerbates impacts of

drought because global precipitation shifts and is less frequent in certain areas and surface water

is not reliable to replenish aquifers.85

Drought response and policy bring up very interesting issues. Scientists commonly refer

to the current state of drought law as the “hydro-illogical cycle.”86 This is because drought law

is not proactive (which is should be), but instead is a reactive, ad hoc set of decisions largely

made in panic.87 Federal water law focuses on water resources and the promotion of water

development, rather than conservation or drought planning.88 This leaves drought legislation to

                                                                                                               81 Suzanne Goldenberg, Drought Worsens in Midwest and Threatens Next Year’s Corn Crop, THE GUARDIAN (Aug. 2, 2012, 12:55 EDT),, http://www.guardian.co.uk/environment/2012/aug/02/drought-worsens-midwest-corn-crop. 82 Adler, supra note 66, at 210. 83 Id. 84 U.S. Drought 2012: Farm and Food Impacts, UNITED STATES DEPT. OF AGRICULTURE, http://www.ers.usda.gov/topics/in-the-news/us-drought-2012-farm-and-food-impacts.aspx#crop (last updated May 6, 2013). 85 Adler, supra note 66, at 207-8. 86 Adler, supra note 66, at 209. 87 Id. 88 Id. at 222.

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the states, which tend to ignore its implications except as an incidental response to emergencies.

89

Drought relief is a bit of a conundrum. Subsidized drought relief or drought relief that is

triggered too readily may encourage farmers to engage in riskier agricultural practices such as

growing water-intensive crops in arid regions or using inefficient irrigation methods. Promising

relief does not incentivize crop growers to internalize the risk of their business decisions. It not

reasonable to promote the corn-basedethanol industry in light of recent drought because this

would not incentivize the industry to switch to less water-intensive crops (like switchgrass) or

develop a more effectivetechnology that consumes less water. However, if drought relief comes

too late, or not at all, the areas affected might never recover, and their markets may be

                                                                                                               89 U.S. DROUGHT MONITOR, http://droughtmonitor.unl.edu/ (last visited Dec. 26, 2012).

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devastated. . Water law can incorporate drought planning in several ways: drought neutrality,

drought exceptionalism, and through an ad hoc system.90

Drought neutrality sets up a uniform system of water law regardless of water supply and

water demand.91 This system would thus keep general rules of water law, such as riparianism, in

place. Nebraska, then, would be free to deplete the Ogallala Aquifer, along with other

groundwater sources, in order to continue ethanol production and corn growth regardless of

replenishing rate and even in light of extreme droughts. The absence of drought allocation rules

in this neutral system will, in theory, incentivize the market to allocate water and efficient water

use. It is clear that this system would not work for states that rely on the ethanol industry,

because the technology for less water-consumptive ethanol production does not yet exist. States

such as Nebraska would have to switch to other crops as drought alters the aquatic makeup of the

area.

Drought exceptionalism modifies rules of water law during periods of drought in order to

provide relief to affected users.92 In this way, the ‘reasonable’ use standard for water that is

employed throughout Nebraska could be modified in times of drought to exclude some activities.

This does present some threshold problems as producers would need to know when the

exceptions apply through a clear definition.93 Without a clear definition, people will not know

when or how to alter their conduct.94

                                                                                                               90 Adler, supra note 66, at 224-25. 91 Id. at 224. 92 Id. at 225. 93 Id. 94 Id.

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The ad hoc system is the most common; here, lawmakers respond to individual droughts

with specific changes.95 This flexible and uncertain system may promote sustainable behavior in

theory, but it in reality, there is little information about risk assessment.96

Climate change will only increase the frequency and severity of drought, even more than

what the Midwest has experienced in 2012. As a result, regulated riparianism allows for drought

response as it has built in permit programs, restrictions and requirements. Nebraska, however,

sees its groundwater as a public resource of which you take the portion that you own, subject

only to reasonable use. It is easy to see how this could be a detriment to other states that are

seated on the Ogallala Aquifer who rely on Nebraska to actually replenish its water resource, not

use it to its entirety.

VIII. Solutions

Generally speaking, water shortage can be solved by reducing consumption so there is

less demand on the system. However the issue remains over who will invest in the technology

to do so, especially in the field of ethanol production. Another problem is that there is little

incentive for producers and growers to reduce their water consumption because the cost of water

is so low. Many proponents suggest that ethanol-producers reduce plant-related water

consumption byusing recycled water.97 However, ethanol-producers have expressed concern

over the quality of recycled water because it leads to the build up of minerals that may severely

damage the machines’ tubing systems.98

The Obama administration has taken a few steps regarding ethanol production by limiting

what biorefineries may lawfully do. For example, there are more stringent emission limitations

                                                                                                               95 Id. at 226. 96 Id. 97 Higgins, supra note 32, at 4. 98 Id.

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on refining plants as well as standards for GHG reductions.99 There is also the new push to

switch to switchgrass in lieu of corn, because it is natural to prairies and consumes much less

water than corn. Some scientists have encouraged the ethanol industry to switch to second-

generation cellulosic ethanol which is derived from nonfood sources such as wood and crop

waste.100 This process does not require water consumptive crops and has the capacity to

produce five times more energy than it uses.101 However, this is susceptible to the same

criticism that installing new, best management water practices would—it is costly and nobody

wants to cover that cost.102

Incentivizing farmers is also a good solution as they are the ones whose livelihood and

crops will be impacted. There are options other than drought legislation that can have a positive

effect on climate change as a whole; these options may benefit the renewable energy industry in

the long run. For example, laws that price carbon and push investments in low-carbon

technology will open up new revenue opportunities for farmers. These include wind turbines,

solar panels, generating electricity from cow manure, and sequestering carbon emissions in the

soil.103 This will also drive the market away from corn-based ethanol production via an overall

market incentive to practice sustainable agriculture.

These solutions, however, are not immediate and are not ones that we will likely see in

the ethanol industry in the immediate future. Instead, land use and water law legislators need to

work together to both regulate and incentivize riparian owners, farmers, and biorefinery

managers alike. Drought relief, for example, should be conditioned on actions to use water more

                                                                                                               99 Tarlock, supra note 12, at 334. 100 Volinski, supra note 7, at 509. 101 Id. 102 Id. 103 Moore & Bruggen, supra note 57, at 88.

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sustainably in the future.104 Land use planning should be integrated into these systems and use

should be permitted based upon water availability, not an outdated ‘reasonable’ standard.

Currently, reasonable use does not require that the person take efforts to harvest rainwater, store

water underground, or bank water to support flows as a condition to their consumption.

IX. Conclusion

Despite the fact that the corn-based ethanol industry is highly water consumptive, it is

legal and actively encouraged. It unnecessarily relies on a crop that is much more water

intensive than the alternatives. Moreover, it requires large amounts of fresh water to ferment the

corn which is either released as heavily polluted wastewater or completely evaporated through

the process.

Other states rely on Nebraska (the leader in corn production for ethanol as well as the

home to a lot of biorefineries) to replenish the Ogallala Aquifer. Nebraska is a major consumer

of groundwater for corn irrigation. Unlike its regulated ethanol producing state counterparts,

Nebraska maintains that riparian owners are only bound by reasonable use, a system of law that

never considered climate change.

Climate change has caused a vast drought in 2012, which is one of the worst the United

States has seen in decades. Drought law is essentially nonexistent in the area of water law

doctrine and is generally created as an ad hoc way to remediate damage. It this water

consumptive systemthat places this country is at its biggest risk. Water law needs to shift from a

reasonable standard to incorporate ideals of conservation—planning land use prospectively in

light of water availability and the likelihood of drought in the future.

                                                                                                               104 Adler, supra note 66, at 202.