Beneficial Use--For Whose Benefit?

Today water use is legitimized through proof of “beneficial use”. The principle of beneficial use exhibits itself in the first and second century AD case of the Barbegal Aqueduct and Mill located on the territory of the commune of Fontvielle, near the town of Arles in southern France  There, water was trained by Roman engineers to move by aqueduct to an elevated location where it could fall over a progression of wheels, the motion of which was transferred by gears to grinding wheels used to grind grain into flour which could be baked into bread sufficient to feed the town of Arles.  The use was “beneficial.”
The principle can also be observed some thousand years later in the “mill monopoly” enjoyed by lords of the manor in early medieval English feudal law, a law which was indeed administered by the lord himself.  The monopoly derived from the lord’s control of the only (or limited) milling capacity of the manor, the mandate that all within the manor must grind their grain at the lord’s mill (subject of course to a fee or tax), and the protection of the water flow which turned the mill’s grindstone through a “praedial servitude” upon upstream properties who might competitively divert water essential to turning the mill’s water wheel.  The creation of this microcosm of water, agronomic and economic interdependence was “beneficial” to its participants, the lord most of all, as it was essentially a closed economy.  It only had extra-manorial impact when density of use on a given stream put manors in competition.  When the praedial servitude was asserted through actions in “nuisance” against upstream users, the defense necessarily became that the upstream user also had a water right by virtue of its riparian position, a right in which no new beneficial use need be shown.
Somewhere along the historical timeline, most notably in the late eighteenth century with its advent of English industrialization, beneficial use began to be regarded as the economic betterment of a particular water user, as opposed to the broader public.  Betterment of a single interest was perceived to be the implied betterment of all.  Thus, beneficial use became to mean simply work of any kind which generated individual wealth.  Water could, in essence, be owned if one could use it to make money—public good had departed from the definition.
Putting water to beneficial use is, of course, the means by which appropriative water rights are perfected..  Modern statutory definitions of beneficial use are essentially lists of purposes, all of which, with the exception of domestic, are economic until environmental purposes were added.
At the common law, the converse of beneficial use was “waste.”  Waste may be evidenced by insufficient purpose, insufficient conservation of resource or insufficient benefit.  It has been fashionable at periods of judicially sanctioned economic self interest to allege that it is wasteful to permit a watercourse to run in its natural way, to leave water in the ground in its natural setting, or to permit water to run its way to the sea. Environmentally conscious post-industrialists have, of course eschewed such thoughts.

Your Water Footprint

Stephen Leahy’s Your Water Footprint (Firefly Books, Ltd., 2014) presents some rather staggering statistics about the amount of water it takes to make everyday products enjoyed by consumers of wealthy societies.  4,068 gallons (15,400 liters) of water to produce 2 pounds (1 kilogram) of beef;  2,747 gallons (10,400 liters) of water to produce 2 pounds of lamb; 1,582 gallons (5,990 liters) of water to produce 2 pounds of pork; 1,136 gallons (4,300 liters) of water to produce 2 pounds of chicken.  A single egg, Leahy suggests, takes 52 gallons to produce.  “depending upon where the food is produced, the water footprint may be big or small.” Quoting Arjen Hoekstra, “86% of humanity’s water footprint is not within people’s homes, but in making food, natural fibers, oils and energy.”  The single tomato that Leahy suggests takes 9.3 gallons of water to produce certainly consumes a lot less water in my own garden.

According to Leahy (the attribution of his data is a little obscure) 3,095 cubic miles (12,900 cubic kilometers) of fresh water hangs in the atmosphere (due to evaporation and transpiration during photosynthesis).  30 trillion gallons (113 trillion liters) of water fall to earth in precipitation each day.  The world’s three largest aquifers hold 15,600 cubic miles (64,900 cubic kilometers) (Australia’s Great Artesian Basin), 9,600 cubic miles (40,000 cubic kilometers) (South America’s Guarani Aquifer), and 900 cubic miles (3,608 cubic kilometers) (North America’s Ogallala Aquifer).  That’s a lot of tomatoes.

While Leahy’s implied guilt trip for rich-country consumers is worth considering, it fails to consider the water justice questions.  Where is the major water consumption?  In the factory or field?  In the home?  Although water supply is essentially geostationary—it is hard to export the resource itself by means other than global, atmospheric processes—the natural resource converted to products conveyed long distances (across oceans)  makes the total global water supply relevant.  But it may be the modern structure of international production, trade, transportation, corporate structure and finance which constitutes the major component of the justice problem.  Increase in global population, rise in energy demand and production, climate change likely also play a part.  So I won’t feel too guilty when I eat my home-grown tomato.

Welcome to Water Justice

Our purpose here is to do some thinking about the essential commodity of human life, indeed the essential substance of all living things.  Some now blithely say that competition for water will be the basis for future war between nations.  Some say, with climate change, we'll have too much water, or we'll get it at the wrong time in the wrong amounts, or delivered by powerful, ocean-generated weather.  Closer to home, in the United States at least, legal paradigms with which to determine how water is apportioned strain when supply gets short.  Drought is a growing concern.  Hopefully the writing posted here will encourage you to dig deeper in your own thoughts about the justice of water use and management.

Like the air we breathe, water is an essential component of this globe's life-engendering habitat.  We can't live without it.  In the history of western civilization, water has been believed to be a "common" asset, available to all.  And yet, access to it has proved confrontational in private-property oriented societies, as well as between governments and nations.  Justice is, of course, about balancing the respective merits of competing claims in unique, and sometimes confrontational, contexts.  And justice is not just about the rules, for those may well have been set in place to create and protect wealth, power and station.  Justice has a greater reference, a greater home, than law itself.  Because need for water is global and time immemorial, water justice inquiry invokes broad societal and temporal reference, research and contemplation.

Hopefully you will discover, as you review the materials provided here, that these thoughts are not "all wet," and that the humor, if and where it exists, is not exceedingly "dry."

James Davenport

Water Justice--The Book

In naming this blogsite, I encountered a new book (2018) with the title Water Justice, Cambridge University Press.  So as not to offend the sensibilities of its authors, Rutgers Boelens, Jeroen Vos and Tom Perreault, I wrote to Professors Boelens and Pearreault only to find two like minds.  Their work falls, they say, within the field of "political ecology."  I would have said "water politics" or "water law."  Their "questions address fundamental issues regarding how water scarcity is being constructed by dominant agents, and how power relations influence water knowledge and development to produce particular claims to truth."  These questions "intrinsically engage research and transdisciplinary social action, focusing for instance on how knowledge production can contribute to strategies that contest water dispossession and accumulation; and how the knowledge systems of scholars, activists and water users can be mutually enriching and complementary."
From the position of academe, the three professors continue in their introductory chapter:
“[W]e base our understandings of “water justice” on a notion that sees environmental governance not as the “governance of nature” but “as ‘governance through nature’ – that is, as the reflection and projection of economic and political power via decisions about the design, manipulation and control of socio- natural processes” (Bridge and Perreault, 2009 : 492). More specifically, we situate “water justice” conceptually and politically in the field of the “political ecology of water,” which may be defined as: “the politics and power relationships that shape human knowledge of and intervention in the water world, leading to forms of governing nature and people, at once and at different scales, to produce particular hydro- social order” (Boelens 2015a : 9). This political ecology of water thus focuses on unequal distribution of benefits and burdens, access to and control over water, winners and losers, and disputed water rights, knowledge, and culture. It is also about practical and theoretical efforts to build alternative water realities.”
“The combination of intensified resource extraction, land and water degradation, increasing competition over water access and control, and growing reliance on market forces and forms of water expertocracy, have profound implications for debates over water rights and justice. On the one hand, it is increasingly clear that water scarcity and insecurity are not so much related to the absolute availability of fresh and clean water, but rather are expressions of how water, and water services, are unequally distributed among societal groups. Unequal water distribution and exposure to contaminated water, flooding and failed water projects often reveal elite capture of the state and related biased policies and corrupt practices. In other words, the so-called “water crisis” is less a consequence of generalized scarcity than a manifestation of uneven power geometries (UNDP, 2006 ). On the other hand, the mainstream water policy community tends to avoid scrutinizing the root causes of water problems. Instead, in accordance with its own positivist, universalist epistemologies and its belief in expert knowledge systems, formal legal structures and market forces, it blames the victims: local water  user groups, communities and their “chaotic, inefficient plural rights systems” (Boelens and Zwarteveen, 2005 ).”
“[U]nderstanding and challenging water injustices requires conceptual tools to recognize the power and politics of water use, management and governance. Beyond their expression in laws, explicit rules and formal hierarchies, . . . power and politics also significantly work through more invisible norms and rules that present themselves as naturally or technically ordered. These rules are part of established water development intervention procedures and practices, and are embedded in water expert communities’ cultural codes of behavior (Zwarteveen and Boelens, 2014 ).”
Heady thoughts.  Thank you, gentlemen.
J. Davenport

Background of the Riparian Doctrine

In 1963, Professor T.E. Lauer, then an assistant professor of law at the University of Missouri, published an article on The Common Law Background of the Riparian Doctrine in the Missouri Law Review.  You will find it here:.
Lauer, Common Law Background of the Riparian Doctrine

Water Markets

Water rights markets have become popular in recent years as a method to transfer assets serving less economic uses to those uses generating greater return or serving more people.  Critics name as problems:  conversion of natural resources to commodities, aggrandizement of priority-based allocation benefits, causation of artificial value, and personal enrichment of transferors.  The notion that water is a public asset is also offended.  But transactions in water rights are not easy.  The attributes of the individual rights taken to market are not uniform.  In fact they are highly disparate, due to their source of origin (common law, state or federal statute), defined place of use, and, where rights (and consequent resource allocation) are prioritized by time or category of use, by power to dislocate other existing rights.  As a consequence, water rights transfers are often highly regulated, with the objective of minimizing disturbance to water source or conflict among water users in the transferor or transferee water use system.  Also, as a consequence, attempts at creating water markets more like commodity markets, where fungible assets are exchanged, have not yet been successful.

You will find a presentation on the subject of water markets’ place in the spectrum of securities, commodity, real estate and public works market models here:

Water Market Presentation

Equal Protection Logic Statements

The rationale of the U,S. Supreme Court in Equal Protection cases is sometimes difficult to comprehend.  The several approaches used can, however, be reduced to simple logic statements that may aid the more mathematically-oriented, perhaps including water engineers and managers.  You will find those logic statements here:

Equal Protection Logic Statements

Information about J. Davenport

Information about J. Davenport can be found here:  James Davenport's Resume

Tribal and Environmental Water Rights and the Equal Protection Clause

Tribal and environmental water rights require some unique consideration under the Equal Protection Clause due to those rights' origins and character.  You will find a discussion of these at the link below:

Tribal and Environmental Water Rights and the Equal Protection Clause

From the source of the Columbia River, a quiet spring pool at Canal Flats, Canada, betwixt the Canadian Rockies on the east and Columbia Mountains on the west, to the mouth of the Colorado River in Mexico at the Sea of Cortes (Gulf of California), the West's two largest rivers provide major economic and environmental value to the western states.

Canal Flats

  

Columbia River Spring Pool at Canal Flats

Colorado River Delta at the Sea of  Cortes

   

   

Unconstitutional "Takings" of Water Rights

Do governmental regulatory, contractual, or proprietary actions that interfere with private rights to use water, generically characterized as “water rights,” comprise an unconstitutional taking of those rights in a manner that requires compensation under the Fifth or Fourteenth Amendments of the U.S. Constitution?  You will find an article on this subject, originally published at 9 University of Denver Water Law Review 1 (Fall 2005), at the link below:

Governmental Interference with the Use of Water: When Do Unconstitutional "Takings" Occur?