Beneficial use, waste, and forfeiture: the inefficient search for efficiency in western water use.

• Author: Neuman, Janet C.

1. INTRODUCTION

   Beneficial use, without waste, is the basis, measure, and limit of a water right. This incantation is an accepted catechism in western water law. Since 1848, when the California gold rush gave birth to the basic principles of the western prior appropriation system, a right to use water has been acquired by applying water to a beneficial use. The right continues only as long as the beneficial use continues, without waste. Nonuse results in forfeiture, and wasteful use is prohibited.

   At the turn of the last century, the majority of the western states codified their water laws, including universal adoption of the concepts of beneficial use, waste, and forfeiture.(1) Now, one hundred years later, it is possible to look back and see how well these bedrock principles have performed, especially given the growing pressures on western water supplies. When the original water codes were adopted, the West was a relatively unpopulous region.(2) A century later, the West is the fastest-growing region in the country.(3) The population is exploding, while scarce water supplies stay the same.(4) At the same time, Native American tribes are seeking their share of the water, promised long ago but never delivered, and often in areas where local supplies are already overappropriated.(5) Improved scientific understanding and environmental laws not envisioned a century ago also create demands for water to be used in different ways or simply left in the streams.(6) Efficiency in water use is therefore crucial.(7) The time is right to examine whether the current system can deliver the efficient practices needed to stretch finite supplies to meet growing and changing demands.(8)

   This Article dissects the beneficial use doctrine, and its corollaries, waste and forfeiture, looking closely at their operation, evaluating them against their purposes, and considering whether they can promote efficient water use practices for the twenty-first century. The Article argues that the doctrinal trinity of beneficial use, waste, and forfeiture, though it may have accomplished certain nineteenth and twentieth century goals, is ill-equipped in its present form to achieve the levels of efficiency that will be necessary to meet twenty-first century western water demands. Part II analyzes the current state of the law of beneficial use, tracing its evolution over the past century and comparing the roles of courts, legislatures, and administrative agencies in the application and evolution of the law. The requirement of "beneficial use without waste" sounds tight, as if water users must carefully husband the resource, using every drop of water completely and efficiently to avoid both forfeiture and waste. In actuality, the system is quite loose. Beneficial use is in fact a fairly elastic concept that freezes old customs, allows water users considerable flexibility in the amount and method of use, and leaves line drawing to the courts. The prohibitions against waste--even the threat of forfeiture for nonuse--are mostly hortatory concepts that rarely result in cutbacks in water use. In fact, there is widespread agreement that there are significant inefficiencies in western water use, in spite of these concepts of good husbandry that are built into the law.(9)

   Part III then returns to the roots of the beneficial use doctrine, exploring the doctrine's original purposes of avoiding speculation and monopoly, maximizing the use of a scarce resource to help settle the West, and providing flexibility to water users. Part III assesses whether the doctrine has accomplished those purposes over the past 100 years and discusses whether the original purposes are still relevant for the twenty-first century. The Article argues that the doctrine only partially accomplished its original purposes, while encouraging over-use of water, and that these purposes require adjustment for meeting future water demands. Part IV considers the prospects for effective use of the doctrine to achieve efficiency in water use, concluding that in order to obtain, meaningful efficiency improvements, western courts, state legislatures, and administrative agencies all need to play a role in adapting the doctrine to current needs. Recommended reforms are outlined for each of the three branches.

2. THE BENEFICIAL USE DOCTRINE THROUGHOUT THE TWENTIETH CENTURY

   A thorough understanding of the beneficial use doctrine as it stands at the end of the twentieth century requires examining state constitutions, state statutes, a large body of case law, recent legislative initiatives, and the activities of state water allocation agencies. This examination reveals a doctrine that allows, and even encourages, inefficient water use. Even legislatures and administrative agencies recently attempting to foster efficiency and conservation have often foundered on the vagueness and generosity of the doctrine as it has developed over the past one hundred years.

   1. Statutory and Constitutional Treatment of Beneficial Use

      The water codes of all of the western states and some state constitutions include the term "beneficial use." Constitutional treatment of beneficial use ranges from simple statements declaring the right to appropriate water for beneficial use,(10) to more normative provisions requiring reasonable and nonwasteful water use.(11) Statutes of nine states intone in nearly identical language that "beneficial use, without waste, is the basis, measure, and limit of a water right,"(12) and the remainder refer in some way to beneficial use.(13) Some states specifically identify or list certain uses as beneficial, either in the constitution or in statute. For example, the Idaho Constitution recognizes agriculture, mining, milling, power, and domestic purposes as beneficial.(14) Texas statutes list as beneficial uses agriculture; gardening; domestic uses; stock raising; mining; manufacturing; industrial and commercial uses; recreation; pleasure; and oil, gas, and .sulfur production.(15) States that list specific beneficial uses in statutes normally began with a basic list many years ago, covering the late nineteenth century needs of domestic use, farming, and some industry, and then supplemented their statutes over time to add more "modern" purposes, such as instream uses for recreation and fish and wildlife. In other words, statutory expressions of beneficial use have changed to reflect changes in values and changes in scientific understanding. However, these lists are generally interpreted as nonexclusive.(16)

      Conversely, some states specifically provide that a particular use is not a beneficial use. For example, Oklahoma declares that use of water in coal slurry pipelines does not qualify as beneficial.(17) Kansas statutes provide that evaporation of water from sand and gravel pits is not a beneficial use.(18) Idaho law states that it is not a beneficial use of geothermal water to use it for any purpose other than its heat value.(19)

      A few states attempt to elaborate on the concept of beneficial use with a statutory definition of the term. For instance, Colorado law provides that "`[b]eneficial use' is the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made. (20)A definition in Texas law includes similar concepts of reasonableness, but adds economics, brains, and hard work to the mix: "`Beneficial use' means use of the amount of water which is economically necessary for a purpose authorized by this chapter, when reasonable intelligence and reasonable diligence are used in applying the water to that purpose."(21)

      In spite of these statutory and constitutional distinctions, there seems to be little significant variation among the states in the general interpretation and application of the beneficial use doctrine. State courts borrow liberally from other states in developing the concept of beneficial use for resolution of disputes before them(22) In fact, the Ninth Circuit Court of Appeals has described the beneficial use doctrine as a matter of general law among the western states.(23)

   2. Judicial Treatment of Beneficial Use

      1. The Role of the Courts

         Until recently, the job of defining the contours of the beneficial use doctrine has fallen mainly on the courts. Every western state makes "beneficial use without waste" the limit of a water right, yet only a few states attempt to define or expand upon that concept with further statutory language.(24) As noted, many of the statutes that do exist contain undefined concepts of "reasonableness," "appropriateness," and "diligence"--terms that beg for interpretation just as much as the term "beneficial use" itself. Of necessity, then, it has been left to the courts to define, interpret, and apply the basic requirement.(25)

         In addition to the usual function of hearing individual cases as they come up, the courts play a special role in western water law--that of conducting general stream adjudications. Every western state has a general stream adjudication process for determining the various water rights on any particular water body or stream system.(26) Although different states' statutes provide for varying degrees of administrative involvement, eventually a court is required to issue a final decree describing and quantifying all of the claimants' valid legal water rights.(27) It is in the context of general stream adjudications that courts have the most potential influence on the development of the beneficial use doctrine. Rather than having before them only one or two water users and perhaps a state agency, they are reviewing the water-rights claims of numerous parties throughout a particular geographic area. Normally, the state water resources agency is also involved in the adjudication as an administrative fact finder before the entire matter comes to the court, as a technical adviser to the court, or as an actual...