Class One Appropriator Not Entitled to Extra Diversion

Fort v. Washington Dep't. of Ecology, 2006 Wash. App. LEXIS 1069 (Wash. Ct. App. May 23, 2006)

Fort was the senior appropriator on Beaver Creek in Okanogan County as successor to a class 1 right under a 1921 decree which established 18 classes of water rights. Fort also held class 8 and class 9 water rights, all at the same point of diversion.

In 2001, water in the creek became insufficient to meet all appropriator's needs and the state prohibited any diversion junior to class 5. Fort continued to divert water for his class 8 and 9 rights, and was assessed a penalty for his trouble.

Fort argued that since his point of diversion was downstream of the junior appropriators his actions were not contrary to the 1921 decree.

The court held that the adjudication decree was not affected by water or climatic changes might have, despite the change those influences might have on the quantity of available water.