Department of Ecology v. Grimes
852 P.2d 1044, 121 Wash. 2d 459 (1993)
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Rule of Law:
A pre-existing appropriative water right is measured by the amount of water put to beneficial use, which is limited to the amount reasonably necessary for the intended purpose without waste. While local custom is a factor in determining what is a reasonable use, it does not justify waste, and courts may use scientific data and expert testimony to quantify the right based on reasonable efficiency.
Facts:
- Clarence E. and Peggy V. Grimes and their predecessors in interest owned land and used water from Marshall Lake since 1906 for irrigation and other purposes.
- The Grimeses claimed a right to an instantaneous flow of 3 cubic feet per second (c.f.s.) to irrigate 73 acres of alfalfa.
- The Grimeses also claimed a storage right of 1,520 acre-feet of water in the Marshall Lake reservoir.
- Clarence Grimes testified that his existing irrigation system was highly inefficient, requiring a flow of 3 c.f.s. at the point of diversion to deliver only 1 c.f.s. to the field, resulting in a one-half to two-thirds loss of water during conveyance.
- Due to uncertainties about the safety of their irrigation dam, the Grimeses had not been able to continuously irrigate their full acreage.
Procedural Posture:
- The Washington State Department of Ecology filed a petition in the Pend Oreille County Superior Court to initiate a general adjudication of all water rights in the Marshall Lake basin.
- The court appointed a referee to take testimony and issue a report with recommended water right determinations.
- The referee's report recommended confirming the Grimeses' water right, but at a reduced flow rate of 1.5 c.f.s. and a reduced storage amount of 920 acre-feet.
- The Grimeses filed exceptions to the referee's report with the superior court.
- The superior court entered a decree that largely adopted the referee's recommendations, confirming the Grimeses' water rights at the reduced amounts.
- The Grimeses, as appellants, appealed the superior court's decree to the Washington State Court of Appeals, Division Three.
- The Court of Appeals certified the case for direct review by the Washington Supreme Court, which the court accepted.
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Issue:
Does the concept of 'beneficial use' permit a court, during a general water rights adjudication, to quantify and limit a pre-1917 appropriative water right to an amount less than historically diverted if the historical diversion was inefficient and wasteful?
Opinions:
Majority - Smith, J.
Yes. The concept of 'beneficial use' inherently includes a requirement of reasonable and economical use, which allows a court to quantify and confirm a water right based on the amount of water necessary for the purpose without waste. An appropriator's vested right does not include the right to waste water. The court reasoned that 'beneficial use' is the measure of a water right and consists of two elements: the purpose of the use and the quantity of water used. The quantity is limited by what is reasonably necessary, analyzed through the factors of 'water duty' (the amount needed for a specific crop in a specific location) and 'waste'. The court found that the referee properly relied on expert testimony and a scientific 'Irrigation Report' to determine the correct water duty for the Grimeses' alfalfa crop, and correctly added a 25 percent allowance for reasonable conveyance loss, rather than sanctioning the Grimeses' actual wasteful system. The court explicitly rejected a novel, multi-factor 'reasonable efficiency' test articulated by the referee in a footnote—which included environmental considerations—as unauthorized for adjudicating vested rights. However, it affirmed the referee's conclusion because the record showed he did not actually apply this improper test, but instead relied on traditional principles of beneficial use, necessity, and prevention of waste.
Analysis:
This decision solidifies the principle that even senior, pre-code water rights are not absolute and are limited by the doctrine of beneficial use, which prohibits waste. It empowers the state and courts to use modern scientific data to quantify historical rights and enforce a standard of reasonable efficiency, preventing water right holders from claiming water that is lost through excessively inefficient systems. By rejecting the referee's proposed environmental-impact test for vested rights, the court also protected senior users from having their rights diminished by modern policy concerns not in existence when the rights were established. The ruling thus balances the protection of vested property rights with the state's public policy interest in preventing water waste.
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