Washington Water Rights Based on Actual Use or on Delivery System Capacity? Department of Ecology v. Theodoratus

• Publication year: 2000
• Citation: Vol. 24 No. 04

SEATTLE UNIVERSITY LAW REVIEWVolume 24, No. 1SUMMER 2000

Washington Water Rights Based on Actual Use or on Delivery System Capacity? Department of Ecology v. Theodoratus

Darryl V. Wareham(fn*)

The Supreme Court of Washington recently held that, for the past forty years, the State has acted illegally when issuing certificates of water right.(fn1) During these years, Washington State issued certificates of water right to land developers for an amount of water equal to the capacity of the developers' newly constructed water delivery systems.(fn2) First, the developers obtained state permits to construct their water delivery systems and to appropriate water from the public domain.(fn3) Then, the developers were guaranteed that, upon completion of the water systems in compliance with the terms of the permits, the state would issue certificates of water right for the capacity of the systems.(fn4) The Theodoratus court held, however, that the state may issue a certificate of water right, i.e., a vested water right, only for the amount of water that an applicant has actually applied to beneficial use, thereby perfecting an appropriative water right.(fn5) Therefore, the state acted illegally for forty years by issuing certificates of water right based on water system capacity.(fn6)

By what reasoning did the court find that the forty-year-old system capacity basis for granting water rights was unlawful? The Theodoratus court based its decision on both common law principles and state statutory law.(fn7) Washington incorporated in its water codes the common law water rights language of prior appropriation for beneficial use.(fn8) Therefore, the Theodoratus court applied the relevant water codes, but also relied on common law doctrine to support its holding. Thus, an analysis of the court's decision must look to both the text of the water codes and to the history, purpose, and doctrine of common law water rights in Washington. Furthermore, a complete analysis of the court's holding must recognize that the efficient, beneficial use of water has become increasingly important in light of modern population growth and increasing environmental concerns.(fn9)

This Note argues that the court's holding in Theodoratus, that vested water rights must be based on prior appropriation by actual beneficial use, is correct for three reasons. First, it comports with common law water rights, the foundation of Washington's water rights codes.(fn10) Second, it is consistent with the language and the intent of Washington's water rights codes. Third, prior beneficial use, compared to system capacity, more closely addresses contemporary water management concerns. This Note acknowledges the shortcomings of the prior beneficial use doctrine under common law and as codified, and presents further steps that Washington's courts and legislature should take to refine the doctrine to achieve the goal of a truly efficient use of scarce water resources. Unfortunately, the Theodoratus court failed to fully present the modern water rights policy concerns behind its decision. Therefore, the court failed to describe a clear policy foundation for the further development of water rights laws.

In Part I, this Note discusses the history and purpose of the common law doctrine of obtaining a vested water right by prior appropriation through actual beneficial use. Part II reviews the applicable Washington water rights codes and describes the steps required to obtain a certificate of water right. In Part III, this Note summarizes the relevant facts and procedural history of Theodoratus. Part IV presents the court's analysis, reviewing the reasoning and findings of the majority and the argument of the dissent. Part V of this Note analyzes the majority and dissenting arguments in terms of legal doctrine, public policy and implications for the future development of modern water rights laws. Finally, Part VI concludes that the Theodoratus court made the correct decision, but unfortunately, avoided setting out a clear policy description for the further development of modern water rights laws.

I. Common Law Water Rights

The fundamental principles and purposes of the common law of western water rights illuminates the court's reasoning and findings in Theodoratus. Under the common law, prior appropriation for beneficial use, without waste, is the basis, measure, and limit of vested water rights in the western states.(fn11)

The prior appropriation system developed out of necessity in the 1848 California gold rush mining camps.(fn12) The doctrine arose because the riparian system of the East was unsuited to the relatively arid West.(fn13) Under the riparian system,(fn14) water rights are appurtenant to the land adjacent to water.(fn15) Therefore, the location of land appurtenant to water, not the diversion of water to relatively productive land, determines riparian water rights.(fn16) The prior appropriation system better served the needs of miners, and later the needs of farmers, whose productive or fertile land in arid regions might not enjoy riparian rights.(fn17) These early miners and farmers in the West obtained water rights for their land by being the first to divert water for their use from streams in the public domain.(fn18) Western settlements developed local rules and customs based on this diversion.(fn19)

The western courts subsequently incorporated many of these local rules into law, rejecting the riparian rights doctrine.(fn20) The resulting common law of prior appropriation of water rights includes three fundamental principles: (1) water may only be directed for actual beneficial use, (2) the first beneficial user acquires a paramount right to subsequent users, and (3) continued right requires continued beneficial use without waste.(fn21)

The first common law principle of prior appropriation, diversion for actual beneficial use, includes three limitations on a water right. First, a vested water right is a usufructuary right, a right only to the use of the water.(fn22) Second, the quantity of water put to beneficial use defines the scope of the water right.(fn23) The holder of the vested right has no right to a quantity of water greater than what he actually puts to beneficial use.(fn24) Therefore, although the capacity of a water delivery system would be equivalent to actual water use if the system were running at full capacity, common law principles vested water rights based on actual use, not system capacity.(fn25) The third limitation originally restricted beneficial use to consumption for diversionary uses such as mining, farming, and stock-raising.(fn26) Recently, courts and legislatures have expanded beneficial use to include recreational, environmental, and other nondiversionary instream uses.(fn27)

The second common law principle of prior appropriation gives a paramount water right to the first or earlier beneficial user ("first in time, first in right").(fn28) The first or earlier beneficial user of water acquires a vested right to the entire amount of her water right to the exclusion of subsequent users.(fn29) The priority date of this vested right relates back to the date of an individual's first act in creating the diversion.(fn30)

The third common law principle of prior appropriation requires that the holder of a water right continue to use the water in order to retain the right ("use it or lose it").(fn31) The water right continues only as long as the beneficial use continues.(fn32) Nonuse or wasteful use results in loss of the water right.(fn33) The "use it or lose it" principle forecloses the risk that the holder of a vested water right who subsequently stops using the water will prevent its beneficial use by subsequent users. Therefore, the principle prevents the holder of a water right from retaining an unused right for the purpose of speculation.

II. Washington Water Rights Codes

A. Codification of the Prior Appropriation Doctrine

Prior to codification of water rights law, Washington courts recognized both riparian and appropriative water rights doctrines.(fn34) However, if an individual's riparian rights were not actually used or were not likely to be used within a reasonable time, courts allowed the diversion of water by an appropriator.(fn35) Furthermore, in 1917, the Surface Water Code, RCW 90.03, made the prior appropriation doctrine the sole means for acquiring the right to use surface waters in Washington.(fn36) In 1945, the Ground Water Code, RCW 90.44, extended the prior appropriation doctrine of the 1917 Surface Water Code to ground water.(fn37) Under the codes, the requirements for ground water rights are linked to the requirements for surface water rights because the codes make provisions for surface water appropriations applicable to groundwater appropriations.(fn38) Recently, the Washington State Supreme Court held that Washington no longer follows the riparian doctrine and follows only the prior appropriation doctrine.(fn39)

B. Method to Obtain a Permit and a Certificate of Water Right

Under the water codes, an applicant initiates the acquisition of a water right certificate by filing an application with, and receiving a permit from, the Department of Ecology (DOE).(fn40) If the application is for ground water rights, the applicant may include a request for authorization to drill wells and construct a water delivery system of a specified...