Beneficial Use, Waste, and Forfeiture: the Inefficient Search for Efficiency in Western Water Use

Abstract

Near the turn of the last century, many of the western states adopted the requirement of continuous beneficial use without waste in their water codes. These laws provided that unused water, or water that was used wastefully, would no longer be part of the user's water right and would be available for appropriation by others. Professor Neuman conducts a comprehensive critique of how well the beneficial use doctrine has performed since its universal adoption one hundred years ago, and assesses its potential for helping to meet the water demands of the next century. She reviews the slow evolution of the common law of beneficial use, highlighting the doctrine's ineffectiveness in curbing wasteful uses of water. She also explores legislative and administrative treatment of beneficial use and waste, again with attention to whether efficiency improvements have been obtained. Professor Neuman probes historical reasons for the failure of the beneficial use doctrine to foster greater efficiency, and she compares current needs to the purposes for adopting the doctrine in the first place. Professor Neuman further argues that contemporary water demands require a more systematic approach to improving efficiency in western water use. She outlines an agenda of proposed reforms for western courts, legislatures, and administrative agencies to make the beneficial use doctrine more responsive in order to stretch scarce western water resources to meet twenty-first century water needs.

Keywords: beneficial use, waste, forfeiture, abandonment, western water, efficiency in water use, western water law, general stream adjudications, prior appropriation, irrigation, water duty, groundwater, conserved water, water markets, water law