Washington Water Rights Based on Actual Use or on Delivery System Capacity? Department of Ecology v. Theodoratus
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." 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.
Darryl V. Wareham, Washington Water Rights Based on Actual Use or on Delivery System Capacity? Department of Ecology v. Theodoratus, 24 SEATTLE U. L. REV. 187 (2000).