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.