Wasting water in the Northwest: eliminating waste as a way of restoring streamflows.

• Author: Russell, Karen A.
• Position: Symposium on Northwest Water Law

1. INTRODUCTION II. BENEFICIAL USE WITHOUT WASTE: HISTORY AND DEFINITION

   1. A Historical Perspective--Why Was the Concept Created?

   2. Defining "Waste"

      1. Physical Definition of "Waste"

      2. Legal Definitions of "Waste" III. LAW AND ENFORCEMENT IN THE COLUMBIA BASIN STATES

   1. Idaho

      1. The Law on Waste and Beneficial Use

      2. Enforcement of the Requirement

         1. Existing Rights

         2. Applications for New Uses

      3. The Future of Waste Enforcement in Idaho

   2. Montana

      1. The Law on Waste and Beneficial Use

      2. Enforcement of the Requirement

         1. Existing Rights

         2. Applications for New Uses

      3. The Future of Waste Enforcement in Montana

   3. Oregon

      1. The Law on Waste and Beneficial Use

      2. Enforcement of the Requirement

         1. Existing Rights

         2. Applications for New Uses

      3. The Future of Waste Enforcement in Oregon

   4. Washington

      1. The Law on Waste and Beneficial Use

      2. The Grimes Case

      3. Enforcement of the Requirement

         1. Existing Rights

         2. Applications for New Uses

      4. Future of Waste Enforcement in Washington IV. A COMPREHENSIVE STRATEGY TO REDUCE WASTE

   1. Require Mandatory Measurement and Reporting

   2. Develop Clear Statewide Waste Standard

   3. Adopt Basin or Subbasin Efficiency Standards

   4. Develop and Implement State Waste Curtailment Program

      1. An Aggressive Enforcement Program

         1. State Enforcement

         2. Citizen Enforcement

      2. Voluntary Alternatives to Enforcement

         1. Voluntary State-Approved Conservation Projects

         2. State Funding for Conservation Projects

   5. State Control over Water Recovered V. CONCLUSION

1. INTRODUCTION

   As a result of erroneous decrees awarding excessive quantities of water

   much water which should be available to subsequent appropriators has been

   denied them; yet year after year the owners of these swollen rights have

   attempted to use all the waters decreed them, to their own detriment, in

   order to 'keep their rights alive.'. . .

   One should not be permitted to play the dog in the manger with water he

   does not or cannot use for a beneficial purpose when other lands are crying

   for water.(1)

   Waste of water must not be practiced. Wasteful methods common among the

   early settlers do not establish a vested right to their continuance.(2)

   Little has changed in the half century since these courts condemned the waste of water. The same decrees awarding "excessive quantities of water" are still in effect, despite their broad condemnation by the Montana Supreme Court and courts in other Columbia Basin states. Today, not only irrigable lands cry for water, but also rivers, streams, and the fish that inhabit them. New demands to serve the Northwest's growing population(3) compete with instream needs for what little unallocated water remains.

   The Columbia Basin states must translate the eloquent words of the basin courts quoted above into action. For a century, the Columbia Basin states have allocated water based upon the prior appropriation doctrine, while failing to enforce a fundamental tenet of the doctrine, that water be used beneficially without waste. Yet, throughout the West, wasteful use is rampant, and there have been few attempts to limit existing uses to any efficiency standards.

   Exactly how extensive is the waste problem? The answer depends upon the definition of "waste." Unfortunately, none of the Columbia Basin states have clearly defined what constitutes wasteful water use. In addition, the states generally do not monitor water use or actively look for cases of waste. Even under a conservative definition that accepts fairly high levels of inefficiency, the amount of water "lost" each year is significant. For example, during 1990 in the Pacific Northwest, irrigation uses diverted 35.6 million acre-feet of water.(4) Of this water, consumptive use by crops accounted for only 36% (or 13.1 million acre-feet).(5) The remainder was lost through conveyance systems, return flows, and on-farm practices.(6)

   At least one state in the region, Oregon, has recognized that wasteful water use has adverse effects: "Waste reduction is an important resource stewardship activity because it has the same practical effect as any other illegal use: injury to legal water right holders--both instream and out-of-stream--and harm to public interests."(7) It is well documented that inadequate streamflows due to irrigation withdrawals, and in some cases the complete absence of water, have severely affected Columbia Basin salmon.(8) Water conservation represents one way to restore streamflows if the legal tools are in place to assure that some or all of the water recovered is dedicated to instream flows.(9)

   In an era of increasing demands on rivers to provide water for new development, instream flows, and existing uses, the elimination of wasteful uses of water and the institution of workable efficiency standards can help stretch finite water supplies. Ensuring more efficient water use could help meet demands with fewer adverse effects than other alternatives, such as denying new uses, fallowing acreage already under irrigation, and building new storage projects. This Article argues that to make water available for new uses and to restore instream flows, the region must give meaning to the "waste" component of "beneficial use without waste." To restore streamflows, the Article recommends that the states enforce existing laws, institute clear efficiency standards, and provide fair mechanisms for transfers to new uses.

   Part I of this Article introduces the problem of wasteful water use in the Pacific Northwest. Part II describes generally the fundamental concept of "beneficial use without waste." Part III discusses the relevant law in the four Columbia Basin states of Idaho, Montana, Oregon, and Washington and surveys each state's waste enforcement record, focusing on how waste enforcement can help restore streamflows. Part IV details how enforcement against waste can restore and protect streamflows. This Part also recommends that each state gather information on water use and adopt a workable statewide definition of waste, then develop local standards for efficiency of new and existing water uses. The states should also develop and implement programs to eliminate waste containing both mandatory and voluntary, incentive-based elements. The Article concludes in Part V with some cautionary notes about the future of waste enforcement as a tool to restore streamflows in the Northwest.

2. BENEFICIAL USE WITHOUT WASTE: HISTORY AND DEFINITION

   1. A Historical Perspective-Why Was the Concept Created?

      All four Columbia Basin states allocate water based upon the prior appropriation doctrine. This doctrine, the water law that governs the arid West, grew out of the old mining customs of the nineteenth century.(10) Prior appropriation enabled miners to divert water out of the streams to flush out valuable mineral deposits.(11) Mining later gave way to irrigated agriculture, which today is the largest use of water in the Northwest.(12) Prior appropriation reflected a young nation's desire to settle and exploit the resources of the West. Once water was physically diverted and put to a beneficial use, the user acquired a vested right.(13) However, water rights established under this system are not ownership rights to the water itself but "usufructuary rights" allowing the use of water.(14)

      Three main principles comprise today's prior appropriation doctrine: 1) "first in time, first in right";(15) 2) "use it or lose it";(16) and 3) beneficial use.(17) The first principle, "first in time, first in right," establishes priorities to use water.(18) A water right possessing an earlier priority date is superior to all later water rights.(19) Its holder is able to "call" junior rights in dry years to ensure that the senior right holder gets all of her water without interference, leaving junior rights with little or no water.(20)

      The second principle of prior appropriation, "use it or lose it," provides that a water user who fails to exercise a water right over a period of years loses that right.(21) This principle is intended to ensure that water is put to beneficial use.

      The third principle, beneficial use, requires the use of water for a beneficial purpose, in a manner that does not result in waste.(22) The concept of beneficial use does not give a user a right to a particular amount of water; instead, it gives the rights holder a right to use water beneficially.(23) Most state statutes define categories of beneficial uses and usually include the following: agriculture, mining, industry, domestic, and stock watering.(24) Although not originally included, most states now also define beneficial use to include fish, wildlife, and recreation.(25)

      Once water is put to a beneficial use, all western states require that it not be wasted.(26) However, as one author has noted, it has always been "difficult to police waste, and in some cases to define it, so the prohibition against waste, although an announced principle in the cases and statutes of every western state, has been enforced sporadically at best."(27) The historic lack of enforcement against waste, the failure of the states to charge users for use of the publicly held resource and the states' focus on the "use it or lose it" concept in water law give water right holders no real incentive to use water efficiently.

      Although western courts have found that vested water rights are a type of private property subject to the constitutional prohibition against taking private property for public use without just compensation (28) the concept of "beneficial use" serves to limit the definition of the scope of a water right.(29) Thus a water user who is wasting water or putting water to a "nonbeneficial" use has no constitutional claim arising from regulation by the state.(30)

   2. Defining "Waste"

      1. Physical Definition of "Waste"

         Waste can be physically defined as the volume of flow diverted from a natural water supply that is not consumptively used by crops.(31) This definition is much broader than current legal definitions of waste(32)...