[8-1]
LINDA REID is the owner of Water365, LLC, an environmental consulting firm specializing in climate resilience and freshwater sustainability planning. She formed the firm in 2019 to lend her expertise and experience to organizations interested in implementing climate resilience and water quality improvement projects in the Great Lakes region. The firm's mission is building capability and capacity for a more resilient freshwater future. An educator with an entrepreneurial spirit, Linda Reid previously served as an associate professor of law and the Director of the Institute for Water Business at the University of Wisconsin-Whitewater and as the Executive Director of Southeastern Wisconsin Watersheds Trust (Sweet Water), an environmental non-profit with a mission of protecting and restoring the Greater Milwaukee watersheds. She has over 15 years of experience working with industry, government, and academic organizations in the freshwater space, and has written successful grant proposals funding over $3 million worth of water quality improvement projects in the region. Linda earned her Juris Doctor degree from the University of Arkansas School of Law in 1995. She is a National Green Infrastructure Certification Program (NGICP)-approved trainer, a qualified Alliance for Water Stewardship (AWS) Water Stewardship Standard Specialist Professional, an Envision Sustainability Professional (ENV SP) and a Crime Prevention Through Environmental Design (CEPTD) Professional. Her current legal research focuses on groundwater law and governance issues.
ANTHONY B. SCHUTZ has been with the law school for nearly all of the last 20 years, beginning in 2000. During law school, he worked for Cline, Williams, Wright, Johnson, and Oldfather in Lincoln, Nebraska, and was editor-in-chief of the Nebraska Law Review. He graduated in 2003 with the highest distinction and clerked for the Honorable C. Arlen Beam of the U.S. Court of Appeals for the Eighth Circuit until 2005. During the 2004-2005 academic year he also taught Legal Research and Writing at the College of Law as an adjunct instructor. During the 2005-2006 academic year he was a Visiting Lecturer in the Lawyering Program at the Cornell Law School. He came back and began teaching here in 2006. Since then, he has taught courses in Agricultural Law, Environmental Law, Water Law, Land Use Regulation, State and Local Government Law, and Contracts. He is currently serving as the Associate Dean for Faculty, which he began in 2020. He is the faculty advisor for the Agricultural and Environmental Law Society, moot court, and Nebraska Connections. The latter role is related to the Rural Law Opportunities Program, which Professor Schutz also leads. The product of a farm family in Elwood, Nebraska, Professor Schutz's research interests include the often intertwined subjects of agricultural law, environmental and natural resources law, and state and local government, all of which have significant impacts on rural landscapes and populations. Professor Schutz has served as the chair of the AALS Section on Agricultural Law, is active in the American Agricultural Law Association and the Rocky Mountain Mineral Law Foundation, and is a frequent lecturer on agricultural and water law issues regionally and nationally. He tries to keep a close eye on the legislature and encourages students to speak up and take part in the legislative process, both while they are here and in their professional lives going forward. Professor Schutz has three daughters, Ani, Berlyn, and Celia. His Partner, Joni, and her three children, Abbie, Collin, and Cian, complete a Brady Bunch mixed family (without the Alice, which is much more difficult). From time to time, Professor Schutz finds his sanity by running. He's completed many marathons and a few ultra-marathons, trying to keep up with Joni.
Abstract: In an era of extended drought, population growth, and climate change, whether and how food security should shape water rights is up for renewed debate. Almonds are derided as water guzzlers despite their high value as a crop and as plant-based protein, while rice is cultivated in virtual desert and water-intensive alfalfa is exported to China. The American Farm Bureau ran a full-page newspaper ad in Spring 2022 arguing that food security should drive water policy, and Congress has considered a "Western Water and Food Security Act." This panel will consider whether water law conceptions of reasonable use, public interest, and waste, and the Public Trust Doctrine should adapt and influence what crops are grown where, and how; whether the U.S. should engage in food security planning that considers water availability; and how such a plan should affect water rights.
I. Introduction
This paper introduces the broad realm of issues and legal tools associated with the pressures facing water consumption in the United States. Those pressures are both old and new. Drought, population growth, and climate change are coalescing in many areas to present new challenges to old institutions and legal regimes. Arid and semi-arid regions of the United States have historically been populated relatively sparsely with agriculture as the main governmentally supported economic activity. Drought has always posed challenges that are met, in part, through constructed water storage (reservoirs) and use, as well as more modern uses of water stored in aquifers that recharge, if at all, over long periods of time.
Today, many of these regions are facing increasing pressures from non-agricultural water uses. The nature of such uses ranges from consumptive (e.g., lawn irrigation) to non-consumptive (e.g., many household uses), and they exist in areas where downstream users (including ecosystem users) will reuse what is not consumed, as well as areas where the return flows go to the sea. As a result, shifting a scarce supply exists in a complex system.
Many of these more arid regions have water institutions and legal regimes that were built for scarcity and complexity. In these places, existing legal frameworks may move water use to the most pressing demands (albeit, not without some level of difficulty). But with climate change, some regions of the US are experiencing pressures that their water law was not designed to handle. In these places, people may encounter a different range of problems.
This paper focuses on opportunities to vary agricultural water consumption in an age of more pressure. Reducing agricultural consumption to make room for other water uses is not entirely a question for what we typically think of as "water law." Rather, agricultural water use is highly susceptible to many influences that are either chosen through policymaking or could be varied with new policymaking.
[8-2]
The paper begins in Part II by providing a brief introduction to background information on the extent and nature of agricultural water use and basic principles of water law. Part III explores water-law levers that might be used to lessen agriculture's water consumption. Part IV explores agricultural-law levers that might be helpful to such an effort.
Readers should note that some sections of this paper have been excerpted from the National Agricultural Law Center's Water Law Overview1 and sections of the recently published Groundwater Governance, Well Cobbled? report2 that were co-authored by a co-author of this paper.
II. Background: Agricultural Water Use & Water Law
A. Agricultural Water Use
Water is at the heart of agriculture. The availability of freshwater makes it possible to grow crops and raise livestock. Agricultural water use, in turn, is at the heart of discussions involving water law and policy. Although water is one of our most plentiful resources, there is often not the right quantity of the right quality of water in the right place at the right time to satisfy demand. Consequently, there is keen competition among water users, including agriculture, municipalities, industry, recreational users, and conservationists.
Agriculture is a major user of ground and surface water in the United States, accounting for approximately 80 percent of the Nation's consumptive water use and over 90 percent in many Western States. Water used in agricultural production is usually sourced from surface waters, such as rivers, lakes, streams, and ponds, or from...
