Title: Legislative Research Commission - Water Rights Law in Kentucky
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Water Rights Law

In Kentucky

Research Publication No. 42


1956


COMMONWEALTH


OF KENTUCKY


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Water Rights Law


In Kentucky









Prepared by the

Research Staff
LEGISLATIVE RESEARCH COMMISSION

Commonwealth of Kentucky





Research Publication No. 42

Frankfort, Kentucky
February, 1956


_











FOREWORD


House Bill No. 497, introduced by Representative Harry King
Lowman and enacted by the 1954 General Assembly, restated and
clarified Kentucky law relating to the conservation, development and
use of water resources. In the bill, the General Assembly recognized
the existence of many specific problems relating to water resources.

To secure additional information on the subject the Legislative
Research Commission was directed to conduct a study of water re-
sources, usage and rights. Other state agencies were directed to
cooperate with the Commission in making this study, when requested.
This publication was prepared pursuant to House Bill No. 497.

The Legislative Research Commission desires to express sin-
cere appreciation for the cooperation of other public agencies in the
preparation of this study. Mr. Dodge L. Whipple, administrative
assistant to the Commissioner of Conservation, reviewed all drafts
and made many valuable suggestions. Mr. Phil M. Miles, Chief of
the Maps and Minerals Division of the Agricultural and Industrial De-
velopment Board, made available stream flow data and other infor-
mation compiled by his agency. Mr. G. E. Hendrickson, District
Geologist with the United States Geological Survey, provided essential
information on ground water resources and water use in Kentucky.

This report treats the historical development of Kentucky water
law, compares the doctrines of riparian rights and appropriation, and
analyzes the Water Conservation Law of 1954. An examination is made
of water supply, the volume of consumption and features contributing
to the adequacy and inadequacy of supply. Available alternative legal
approaches to the problem are pointed out.

Mr. Charles Wheeler, Research Editor on the staff of the Com-
mission, had responsibility for the preparation and publication of this
report.



Harry Waterfield
Chair n

Frankfort, Kentucky
February 21, 1956









TABLE OF CONTENTS


Page

Foreword i
Table of Contents ii
Briefly Speaking iii

Chapter

I. HISTORICAL DEVELOPMENT OF KENTUCKY WATER LAW 1
Riparian Rights and Appropriation Doctrines 2
Riparian Rights in Kentucky 2
Water Conservation Law of 1954 6
Water Rights Acquired by Prescription 11
Riparian Rights Are Vested Rights 12
Mill Acts 14
Condemnation of Water Source by Cities 18
Summary 19

II WATER SUPPLY OF KENTUCKY 21
Climate 21
Physiographic Regions 26
Principal Drainage Basins 36
Variation in Stream Flow 41
Droughts 46
SAvailability of Ground Water 49
Law of Ground Water Use 52
Summary 53

III. WATER USE IN KENTUCKY 55
Water Use vs Water Consumption 55
Domestic Water Uses 56
Municipal Water Use 57
Industrial Water Use 59
Irrigation 60
Summary 63

IV. ALTERNATIVE LEGAL APPROACHES 65
Development of Riparian Rights Doctrine 65
Origin of Appropriation Doctrine 68
Statutory Water Law in Appropriation States 68
States With Mixed Rights 70
Possible Application of Appropriation Doctrine in
Kentucky 71
Conclusions 73
The Legislative Policy Question 74


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-. Every state has laws governing the use of water, one of the most
important natural resources of the state.

2. The Kentucky Court of Appeals proclaimed the riparian rights doc-
trine of water law in 1887. Under this doctrine domestic uses are
paramount. After these havl e been satisfied the riparian owner is
entitled to a rpaonable and proportionate share of the remaining
water, provided other ripYian owners are not excluded from equal
benefits to which they are entitled.

3. The Water Conervation Laof 1954 clarified the application of ri-
parian rights, ere.nh rsizrng th ight to impound water iA'u pe~~rods
of excess flow.

4. Riparian rights are vested rightn in K.tnucky. Unused riparian
rights could not be terminated without compensation. AJverse use
o water o-- ....u give. a prescrint4L right. Riparian use
for0the statutory period does not mature a prescriptive right.

5. The Kentucky mill act does not grant authority to condemn land and
water rights for factory construction when the public may benefit
but has no clear right of use.


6. Cities may condemn a water supply under eminent domain and may
acquire a prescr ptvrg *-h to dlvert a municipal water supply from
a stream- Cities cn claim, merely as riparian owners, te
right to supanl inhabitantsi w waiter.

7. Annual rainfall varies from an average of 40 inches in northern
Kentucky to 50 inches in the southeastern part of the state. Droght
in an average of three of each five years reduce agricultural pro-
duction and the amount of water available in rial-
cipl ,use. herad and water must be
impounded for use during times of shortage. Farmers have relied
heavily on apr iciai pol.dL a _ar ervoirs.

8. Total water *ipnlv i WKenturx i-a "'- ". "e o uses. How-
ever, droughts and rapid runoff combine to create critical water
need


9. Many uses of water involve little or no reduction in available supply.
Over 90 percent oi te waer wi rawn b municipal and Industri
rUA-ts returned. in contrast, not more tha. n "c t LrF-
g0ao er,~ is available for re-use in the immediate area.-


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10. Total withdrawals 1 wler in 19 are eatimatd at 164.4 billion
gallons. This represents less than 1. 5 percent of aveae a Al
suppl-y in Kentucky, emphsizin, he ran im .-rt-nr, n, onuo-,n
measures ro make ater supply available when and where .is ,
needed.


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11. Onl a little over one eent of present water use in Kentucky is
for irrigation. B V nflicts of grave ip-a have c-
curred on snmal sr eams wd the limited natural
supply o water. economic factors would appear to limit profit e
irrigation to crops of high cash value grown on a small are The
19 4Gen-ner-aT1sse im-i -sierienit water policy emphasizes the
right of riparian owners to impound surplus water in periods of heavy
s treamTlow TIrigo can acquire a -ie ble source of supply in
his~ma ne r. -


12. Th 14 enactment is a classic statement of the reasonable use
theory of riparian rn, ~bleeter-
mltd by a court or jury on the-basis of statutory or common law
standards. Existna caselaw offers no bar to the Court o appeal
up-o-ling a lifera interpretation o r masonab e use.


13. Based on these facts, the General Assembly could

(a) Leave the state's basic water law in its pres-
ent form. In that event, irrigators co end
On a reasonaoblshare tb hin. ,atha1,.1 fInw which_ is in
excess of domestic use or impound excess flow for
later- utli-e drouglit pe rio"2- --


(b) Wit t hanyinf the basic water law, require
permits for irrigators. This plan would protect do-
nmes e and established uses. At the same time a basis
would be proved to safeguard the investment o oe


nation works. Sucha lan uld appear to be a proer
regu o pr rights in h public interest.
SSoi oly am complicated administraive ma-
ch y woud e reed tLo Mut this system ito effect.


(c) Aopt the appropriation doctrine of water law,
which wou a cer involve h's paying
ripar an owners or the i ts of which they
wer e.


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I. HISTORICAL DEVELOPMENT OF KENTUCKY WATER LAW


Water is one of the most important natural resources of a state.
Human life is dependent on air, sunshine, soil and water. Air and sun-
light are largely beyond man's control, The soil and water resources of a
nation are vital wealth, subject either to rational management or costly
waste. Even soil itself isci-mplet'ly unproductive without water.

Every state and almost all foreign countries have laws governing
the use of water. These laws illustrate the fact that public interest in water
problems does not arise until critical water situations develop. The largrt
body 6 wafer-us.law has developed in the seventeen arid western states.
In the more humid eastern- j~ ie-'sliboratfe~ codes have been developed with
respect.

Four lengthy chapters of the Kentucky Revised Statutes deal with
damage. Yet, the first general statement of water -paicby the Kentucky
General Assembly wal-s--use Bill 497 enacted at the 1954 regu tai~ session.
This enactment.ina orprates and clarifies somewhat the body of water
rights law develoipdby th eKexaF,~pi oi nhea'ry n-
tury. Sic_ hi.c tu.rts, in keeping with accepted-judicial procedure, dicTnot
go-beyond the declaration of rights necessary to adjudicate the cases com-
ing before them, water rights were not fuUydefined.

Kentucky water law had its origin during a period when the largest use
of water wai for domestic' uses, such -arshourehl-pui~f--ses and water-.
ing oc1 inthatttin _nic ap ifa'industrial demands for water
have greatly expanded. Man farmers have turned --a
tion -asa means of increasing crop yields. The results have been serious
lo er shortages wrc restricted municipal water supplies, handi-
capped industrial operations-, or made the irrigation eaquiment which the
fa i.w.erb .us.ESithile-his carop .suffered from drought.

House Bill 497 was drafted in an effort to clarify the rights of these
respective use-ers in-periods of water shortage. In enacting this legislation
the General Assembly noted that many specific problems exist in relation
toc'aterre_ aou ee- d directed the 1~i4 y ear Commission to
condu -cta oty f-wa .i.Y ee ri hts in the state. This Re-
port, prepared in accordance with that directive, traces e development of
present Kentucky water rights law, describes water resources, presents
available data on water use, and outlines the approaches to water rights in
other states.


__ __









Riparian Rights and Appropriation Doctrines


Two basic doctrines of water rights exist in the United States, ri-
parian rights and appropriation.

In-the thirty-one eastern states the riparian rights doctrine prevails.
A riparian owner is one owning Taiid ontHeiariksiftf1ie~sfeaifi ner this
doctrne each arian owner has anequalIrgnfTTfe' irie of the water
landowner has a right to use the water to the prejudice of otheaB-aitb.PE
above or below him on tHestren. Eactrhowner is-entitedo-r w rfor
naIiixJand- dojicqurpo se s, including hou senol-Mse and-warte fl i ve -
stck, and he may use the stream for ~tese purposes even if alld e wat
i _hoomawMd.-wFor another use, however, he is restricted to a reasonable
and proportional amount which will not exclude thie equal right-of all .othe
riparian owners.

The seventeen western states have adopted the appropriation doc-
trine. Thiasrule _hlds that the person who first puts water r snr--aeam
to beneficial use acquires a right to tKiifamount of water. The appropria-
tive right is anxcusive right and takes precedence pver all later rgTfis
that may be established to the waters of the stream.
-------------------- -~~'~

Riparian Rights in Kentucky

The Kentucky Court of Appeals proclaimed the riparian rights doc-
trine in 1887. In Anderson v. Cincinnati Southern Railway1 the Court said:

The right of every riparian owner to the enjoyment of a
stream of running water in its natural state is now well estab-
lished.
"Every proprietor of lands on the banks of streams has nat-
urally an equal right to the use of the water which flows in the
stream adjacent to his lands, as it is wont to run, without
diminution or alteration. No proprieto6r rSatriTghtcr ue the
water to the prejucdice ofotfieri1~iioli ttrs above ior-below him,
uiTessfiie hasa ~prior right to divert it,-ori title to some ex-
clusive enjoyment. He has yQ. ty in the water itself, but
a sinple-usufAtet*-whi-ie it passes along.TT Though he may use
the owate ;uns o-ver his and a an incident to the land,
he can not unreasonably detain it or give it another direction,
and he must return -t-to its oriinarychantne when it leaves his
estate. Without the consent of the adjoining proprietors, he


1. 86 Ky. 44, 5 S. W. 49, 5 Ky. Law Rep. 663.









can not divert or diminish the %gantity of water which would
otherwise descend to the proprietors below, nor throw the
water back upon the proprietors abo-ve without ral or
an uninterrupted enjoyment of twenty years (fifteen under our
St ait)-Iw. -ch-is i -. This is the clear and7settled
general doctrine on the subject. All the difficulty that arises
consists in its application." (2 Kent's Commentaries, 439.)

"The primary~ se of water is for natural and domestic
purposes, and each proprietor of the land through wiriciEt
flows may use as much of it as is necessary for those pur-
poses, even f it be entirely consumed in the use; but he is
limited as regards 4 n purposes to a reasonable and po-
portionate use, which must not be such as to exclude others
from a benefit to which 1ey are equally entitled with himself. "

Water may, by a riparian owner, be withdrawn from a
stream by ordinary means, or by artificial channels, for
the purpose of supplying the wants of men and animals, even
to the extent of producing a material dimunution in the force
and volume of the current. But it cannot be withdrawn for
the purpose of irrigation, or for any other secondary and
artiiciaplrose, except in such a reasonable and legitimate
way as rnot to interfere unjustifiably with its general use.

The opinion in the Anderson case is a classic statement of the ri-
parian rights doctrine. At the same time, however, it raises another
question vital to water users. Under riparian rights, there are two theo-
ries as to what is meant by equal rights of use: the natural flow theory
and the reasonable use theory. These two approaches are explained in a
standard authority as follows:_

The natural flow theory. Under this theory the primary
or fundamental right of each riparian proprietor on a water-
course or lake is to have the body of water maintained in
its natural state, not sensibly diminished in quantity or im-
paired in quality. Each proprietor, however, is recognized
as having a privilege to use the water to supply his "natural"
wants, and each also has a privilege to make "extraordinary"
or "artificial" uses so long, but only so long, as such uses
do not sensibly or materially affect the natural quantity or
quality of the water, and are made o~p-rin connection with


2. 4 Restatement of Torts, pp. 342 ff.


-3-









the use of the riparian land. These limited privileges
in each proprietor qualify the primary rights of the other
proprietors to have the stream maintained in the status quo
of nature. Thus, according to this theory of riparian rights,
all proprietors have equal rights to have the water flow as it
was wont to flow in the course of nature, qualified only by
the equal privileges in each to make limited uses of the
water.


The Reasonable Use theory. Under the Reasonable
Use theory the primary or fundamental right of each ri-
parian proprietor on a watercourse or lake is merely to
be free from an unreasonable interference with his use of
the water therein. Emphasis is placed on a full and bene-
ficial use of the advantages of the stream or lake, and each
riparian proprietor has a privilege to make a beneficial use
of water for any purpose, provided only that such use does
not unreasonably interfere with the beneficial use of others.
reasonable use is the onl measure of riparian rights. &a-
sonaeness, being a question of fact, mustitbe leterrnined.>
in each case on the particular facts and circumstancs f
that case. Rea6snaBikener-ermine fro' 1tint
ol gt ue d not m q y upon the utility _of
the use itself. but also upon the gravity of its consequences
on other proprietors.

The situation has been somewhat confused as to whether the natural
flow or the reasonable use theory has been adopted in Kentucky. In the
Anderson case as quoted above the Court said of water: "It can not be
withdrawn for the purpose of irrigation, or for any other secondary and
artificial purpose, except in such a reasonable and legitimate way as not to
interfere unjustifiably with its general use" (emphasis ours). This holding
appears in accord with the reasonable use theory.

In 1915 the Court held: "A riparian owner has been defined to be
one owning land, which is bounded by a natural water course, or through
which a stream flows, and the rights to which such owner is entitled are
appurtenant and annexed to the land, and the person owning such lands is
entitled to the natural flow of the water, unimpaired in quality, except as
may be occasioned by reasonable use of the stream by other proprietors,
and he has a right to make any use of the water, which is beneficial to him-
self, so long as he does not inflict any substantial injury to those below him
upon the stream. "3 (emphasis ours). This statement again appears to be a
clear acceptance of the reasonable use theory.


3. Kraver v. Smith, 164 Ky. 674, 177 S. W. 286.


-4-









The decision of the Court in City of Louisville v. Tway (1944)
is more confusing, 4 That opinion states:

It a true, as suggested by counsel for appellant,
that our court is committed to the "natural flow rule"
h as we read the two rules (Reasonae Use as set
out in Restatement Torts, Vol. 4, pp. 342-344, to-
gether with comments, the distinction is rather close, and
even under what may be termed the more restricted theory,
(text supra) each riparian owner is recognized as having a
privilege to use the water to supply his natural wants, and
extraordinary or artificial uses, so that such does not
sensibly or materially affect the quantity of the water and
such uses by a lower riparian owner. The unreasonable
use is treated in Sec. 952, p. 357, text supra, in _ichjt
is said that before one riparian owner is sub!iet to abil
his use of the water must be unreasonable in respect to the
ripar'inproprietr r woe Tis seems to
Be te tt ry aoopite by this court in Anderson v. Cincin-
nati Southern Ry., ..., and adhered to up to this time.

This holding appears somewhat inconsistent. The opinion first
states that the Court is committed to the "natural flow rule. Then the
Court describes unreasonable use as it is interpreted under the reasonable
use theory and states that this doctrine was applied in the Anderson case
and had been adhered to up to that date.

In the Tway case the Court further held:

The.mere deteAntismf the water is not of itself the
injury, .I must be such as affects the lower riparian
owner. -

This statement could apply only under the reasonable use theory.
Restatement of Torts, p. 343, states that under the natural flow theory
an unprivileged use of water which sensibly depletes the volume of water
on another proprietor's land violates his right to the natural condition of
the water and is actionable by him, even though it interferes with no use
that he is making and causes him no harm whatsoever. On the other hand,
the same source shows that under the reasonable use theory there is no
cause of action until the use of water actually causes harm to another pro-
prietor.


4. 297 Ky. 565, 180 S. W. (Zd) 278.







I-)


These cases would appear to establish clearly the reasonable use
theory in Kentucky. The chief advantage of this theory over the natural
flow thr it omotes^
not based on absolute or technical rights, and a cause for litigation
arises only when one proprletour' a guO~fw'iter causes substantial harm
to ian unreasonab-le interference with another's use. The disadvantg
i ,r tryotr- ia.t-a use which is reasonable 'ly"
ay become unreasonable beca rse ocan ~ creaB needs of other
f arian owners.

Water Conservation Law of 1954

The General Assembly in 1954 enacted its first general legisla-
ti/e statement of water policy. This measure, ;House Bill 497, has been
modified as Kentucky Revised Statutes 26Z. 670 through 262. 690. The new
law elaborates and clarifies the body of wate--law developed by the Court
of Appeals.

Statement of Water Policy

The first section of the act, KRS 262. 670, is a declaration of
legislative policy and finding of fact with respect to water resources of
the Commonwealth:

The conservation, development and proper use of the
water resources of the Commonwealth of Kentucky has become
increasingly important as a result of technological advances,
agricultural production problems and varied industrial,
municipal and recreational uses. Excessive rainfall at cer-
tain seasons causes damages from overflowing streams.
Prolonged droughts at other seasons curtail industrial, mu-
nicipal, agricultural and recreational uses of water and
threaten the economic well being of the Commonwealth. The
advancement of the safety, happiness and the protection of
property of the people require that the power inherent in the
people be utilized to promote and to regulate the conservation,
development and proper use of the water resources. It is
hereby declared that the general welfare requires that the
water resources of the Commonwealth be put to beneficial use
to the fullest extent of which they are capable, and that the
waste or non-beneficial use of water be prevented, and that
the conservation and beneficial use of water be exercised in
the interest of the people. The proper investment of public
and private funds to promote the conservation and beneficial
use of water resources is recognized as being in the public
interest and such investments shall be encouraged.


r









This section requires little elaboration. It furnishes a clear state-
ment of the problems which make water conservation so vital to a modern,
society, for industrial, municipal, agricultural and recreational pur-
poses. It declares that water resources of the state can be conserved
and regulated under the general welfare clause of the Kentucky Constitu,
tion, Section 4.

State Regulation of Public Waters

Section 2 of the Act, KRS 262. 680, expressly defines the scope of
state Tr-c a waters: .---

Water occurrn in any natural stream, natural lake or
other natural wra te r hnx in the .Commono iiweIth'w-ic-h tfay
be saelied to any ,fi'l anid h-nficial _uryse is hereby
declared.to beg naialr2- YPlice andublic water of the
Commonwealt.and hiubject to.acLfntraoLand-reguaido fr the


This statement is in accord with the well-defined legal principle that the
state eg "t -ho.-p zivatelandowners aan-d permit the ap-
propriation of flowing waters for such purposes as the legislature may deem
wise.

Section 2 also specifically exempts certain waters from regulation
under this act:

Diffused urface water which flows vagrantly over the
surface of the ground shall not be regarded as public water,
an W -)i which such water fi-i'"I-r flows
aBal have the ~gihj tost use. Water left standing in nat-
ural pool ia n IraT~ am wh'e-i the natural flow of the
stream has ceased shall not be.regarded as public water and
thelimer waofhwealte-eentignotsar shall have the
right-to its use for their purposes.

Diffused surface waters are those flowing vagrantly over the surface
not having found their way into the stream. The exception of these waters
fro l ati i I case law and means that they
can be used by the landowner without limitation.


5. United Statps v. Rio Grande Dam and Irrigation Co., 174 U. S. 690;
Connecticut v. Massachusetts, 282 U. S. 660.
6. Republic Production Co. v. Collins, 41 S. W. (Zd) 100; Barkley v.
Wilcox, 86 N. Y. 140, 40 Am. Rep. 519.


-7-









The law also gives the landowner the right to use water left in
pools after the stream ceases to flow during dry periods. Kentucky law
previously had not been clear on this subject.

Priority of Domestic Use

Secizn 3 n.Lthe act, KRS 262. 690, further defines Rnd jsarifies
the rights of riparian nwnara____se water. Dmef and
given parity:

The owner of land contiguous to public water shall
at all times have the right to the use of water therefrom
in the quantity necessary to satisfy his needs for domestic
purposes, which shall include water for household pur-
poses, drinking water for livestock, poultry and domestic
animals. The use of water for such domestic purposes
shall have priority and be superior to any and all other
uses.

This provision is in accord with the legal principle that a riparian
owner may use all of the water in the stream for domestic purposes
without liability to those further downstream. A possible difficult aris-
ing out of the definition of domestic use in the act has been noted.
"Drinking water for livestock" is included as a domestic use. Suppose
the owner of a large herd of commercial feeder cattle used the flow of
a stream to the extentfthat he deprived those downstream of water for
doffiesitic purposes. Could he escape liability to downstream riparian
owners o the plea that his was a domestic use? Domestic purposes un-
der the Commin .a ..a th os taLuseswhich arise out of thiee s -
sities of life on the land and orm a constituent part of the land. Almost
certainly the courts would hold that such commercial livestock pr dic-
tion does not constitute a domestic use.

Reasonable Use Theory

Subsection 2 of Section 3 of the act states the reasonable uetb.og.y--.
of riparian rights:

The owner of land contiguous to public water shall have
the right to such reasonable use of this water for other than
domestic purposes as will not deny the use of such water
to other owners for domestic purposes, or impair existing
uses of other owners heretofore established, or unreason-
ably interfere with a beneficial use by other owners.


7. 43 Ky. Law Journal 412.


-8-


__ __ __1)









The phrase "or impair existing uses of other owners heretofore
established" in the above siuere ton r airaT ~s6ome questions. _One
writefi~as suggested that the word "reasonable" should be inserted so
that therejasonable use theQoryxYwoj, ld be applied to uses already estab-
lished. 8 He writes that under the Water Conservation Law of 1954 the
legal question would be not whether there was an unreasonable use of
the water but whether the use had injured the landowner by interfering
with a prior existing use.

This construction appears to give too general a definition to
"established use. The mere fact that one riparian owner uses water for
a riparian purpose does not make his use "established" in relation to other
riparian owners. Rights acquired under the exercise of eminent domain
do,.ofQ.tJxenu z constitute established uses. As wiil besi6own inhj.e-ht
section, wate~_rightas..may.also be acquired by prescription or adverse
posse ssion. On the othei hand.--~l ipa.pa, F ater dofnot
establish a prescriptive right against other riparian owners. 9

These rights obtained through eminent domain and prescription
are the uses which are referred to as "existing uses of other owners here-
tofore established. To hold otherwise would, in effect, be to introduce
a type of appropriation doctrine, since a senior riparian use would have
a superior right to another use begun at a later date.

Construction of Dams

Subsection 3 of Section 3 of the Water Conservation Act of 1954
restates the riht -jarian owners to impound water during periods of
excess flo The Co s f isr thad' irtared of this
sec Uon. t is the most important single aspect of the whole problem." 10

The text of that subsection, KRS 26Z. 690(3). is as follows:

An owner orgroup of owners of land contiguous to pub-
lic water shall hb the Rht a consrv
water for their useh n w a
in t-Tratr be r on e l or y ping
such water frmthestrea or lake to a reservoir when the
flowin-ghei'eam or the level of the lake 1sis i


8. 43 Ky. Law Journal 413.
9. 56 Am. Jur, 768-9, sec. 330..
S10==. Henry Ward, "A Review of Efforts to Produce a Declaration of Policy
and Basic Law on the Broad Subject of Water Resources" (Frankfort: De-
partment of Conservation, 1954).


-9-


__I_


_ _~~









existing reasc. -a "hl s. An obstruction placed across a nat-
ural stream shall provide an outLet orL .h.raaLAt
which the owner is not entitled to use Wnd th A an d the
owner shall operate the outlet in -ar'ao i w"io th po.visi.

This provision is in accord with the Common Law and with previous rulings
of the Kentucky Court of Appeals.

The riparian owner is entitled to reasonably detain the water as an
exercise of his right to use the water as it passes over his land. 11 A ripar-
ian owner may built a dam, but, if in so doing he interferes with the -rights
of others by lessening the supply of those below or overflows land above, he
must answer in damages. 12

In the Anderson case the court held that the mere detention of water
as not an injury. Since the grist mill in question had been built under the
i mill act, the Court recognized that the owner had been granted a vested
Right which could not be infringed by any other person or corporation. Any
J action except domestic use by riparian owners, therefore, which impeded
Sthe operation of his mill would permit him to recover damages. In a con-
demnation proceeding he had already paid damages to those who would be
injured by the exercise of the vested right granted him under the statute.

The right of a mill owner obtained through eminent domain must be,
and is in the Anderson case, istinguished from that of an ordinary ri-
parian owner, The right of a riparian owne I--t--wtatff -
---o current reasonable uses apparently raises no legal issues. As will be
shiown-tthe-next'1ec'oin inthe- discussion of prescription, the proprietor
of such a dam would in fifteen years of uninterrupted use gain a prescrip-
tive right to maintain his dam.

A conflict of interests might arise if several priparian owners on
a small stream elected o uilt s and impound surplus water. In that
event the reasonaBlme "tiory would still be xpcr6' In dtermin-
ing whether an artificial use 0 thde Waer Uf crtr am ii reasonable, it is
neceAaar.-t-e~nMr~-whar thekSu. i for. its extent. duration, necessity,
and application, the nature and size of the stream, and the several uses to
which it will be put, the extent of injury to one proprietor and benefit to the
other, and all other facts which bear on the reasonableness of use. 14 The


11. 56 Am. Jur. 511, sec. 18.
12. Anderson v. Cincinnati Southern Railway, 86 Ky. 44, 5 S. W. 49, 5 Ky.
aw Rep. 663.
13. 56 Am. Jur. 520, sec. 30.
14. Gehlen Bros. v. Knorr, 101 Iowa 700, 70 N. W. 757, 36 L. R. A. 697,
63 Am. St. Rep. 416.


- 10 -


~


- I









detention by each riparian owner would have to be reasonable n respect
to the others. Fortunately, however, the annual flow of streams
is adequate in alT7, r"" r y nea'r:tYaiT ,-ceiiYT 'a series of large impoun -
ments.

Water Rights Acquired by Prescription

Title to property may be acquired by prescription or adverse use.
This principle means simply that the uninterrupted use of property for a
specified period gives the user ownership, despite any conflicting rights
of others. The length of the necessary period in Kentucky is set at fifteen
years by statute.

KRS 413.010 provides:

An action far the recvPery of -ea property may be
brought only within fifteen years after the right to institute
it first accrued to the plaintiff, or the person through whom
he claims.

The definition in KRS 446. 010 is as follows:

"Land" or "real estate" includes lands, tenements
and Jexeditaments and all rights to and interest therein,
other than a chattel interest.

Thj .eafinitn is in line with the ruling e corts that the adverse
holding of a water right is parhiew a'~dverse hold of land. The only
difference is oneof pplicatin, iicethe right to use water variiesfr-om
owner ship a o i T dlfii"ference is based on the fact that use -"f W ter
byonent enmttd to it may not immediately damage the riparian owner
and so may not start the running of a prescriptive right. 16

Whether or not the use of water is adverse to a riparian owner de-
pends solely on whether or not it is an infringement of his rights. If the
use is the lawful exercise of a riparian right, ordinarily it cannot be con-
sidered so adverse as to create a prescriptive right. nonriparian or
wrongful use may, on the other hand, develop

After water passes the lands of a riparian owner he has no further
right to its use, and its use downstream cannot be adverse to him. A


15. Oregon Constr. Co. v. Allen Ditch Co., 41 Ore. 209, 69 P. 455, 93
Am. St. Rep. 701.
16. 93 Am. St. Rep. 71Z.
17. 56 Am. Jur. 768-9, sec. 330.


-11-









lower riparian owner, therefore, cannot obtain by prescription a right
as against upper owners. 18

In states like Kentucky following the reasonable use theory of ri-
parian rights, the-m an upstream owner b& senlyat the
time t comes in conflict wi-a reason seby the downstream owr.
Only-wheziamiLb actual injury occur~ can prescription -begiFi~io~ii-a or
of the stream o ----

The Kentuck tf Ap1Cou- r w the rule that im-
pounding of a stream b a d aops i ripe ht. 7 Drainage
of WeiTfrom mics s a nonr parla use af, f uly a private "
0 nuisance, develops a prescript)tiveT u e w io al3L.
sance cannot ever be established bylpreJcxiption.

Riparian Rights are Vested Rights

Riparian rights are not common to citizens at large but exist as
a natural result of the ownership of riparian lands. 21They arise out of
the ownership of the land rather than out of the ownership of the bed of
the stream or the body of water.

Riparian rights are property rights, possessing the usual legal at-
tributes of all property. 22 Such rights constitute property whether or not
actually put to use. 23

The general rule is that riparian rights, since they are vested
property rights, cannot be taken or terminated by the state without


18. Ibid.
19. City of Harrodsburg v. Cunningham et al., 299 Ky. 193, 184 S. W.
(2d) 357; Manier v. Myers and Johns, 43 Ky. 514; 56 Am. Jur. 769, sec.
330; 56 Am. Jur. 513, sec. 23.
20. City of Harrodsburg v. Cunningham et al., 299 Ky. 193, 184 S. W.
(2d) 357.
21. 56 Am. Jur., 727, sec. 274.
22. Crawford Co. .v. Hathaway, 67 Neb. 325, 93 N. W. 781, 60 L. R. A.
889, 108 Am. St. Rep. 647; Smith v. Denniff, 23 Mont. 65, 24 Mont. 20, 57
P. 557, 60 P. 398, 50 L. R. A. 737, 81 Am. St. Rep. 408.
23. Gordonsville v. Zinn, 129 Va. 542, 106 S. E. 508; Ulbricht v. Eufaula
Water Co., 86 Ala. 587, 6 So. 78; City of Elberton v. Hobbs, 121 Ga.
749, 49 S. E. 779; Robertson v. Arnold, 182 Ga. 664, 186 S. E. 806;
Smith v. Town of Morganton, 187 N. C. 801, 123 S. E. 88.


- 12 -









compensation to owners. 24 Some Western states, however, have limited
or found exceptions toqisrule.

The Oregon Supreme Court held that the legislature could
minate unused irian r s o n~~ n. This decision
wa rased on the fact that both riparian rights and appropriative rights
had long been recognized in Oregon. The Court suggested that riparian
ownership under these circumstances was accompanied with the know-
ledge that the laws relating to these two types of rights were subject to
change.

On the other hand both California and South Dakota courts have re-
jected legisb]ti uthih wold ha-. +tr. +4lt T i 1 r -nni 4parian rats. r
These courts behi that riparian Tirhts were vested proPrty rights which
the legislature could not take pron and invest in another.

Nebx.ska recognizes unused riparian rights as property but per-
mits their asetion only through suits for damages against conflicting
appropriative rights.27 The 1945 water code in Kansas apparently has
been construed to mean that owners of unused riparian rights may recover
damages fro a~riators. .8 In Washington riparian rights have been
judicially defined as extening only to waters actually being used on ri-
parian lands or capable of being so used within a reasonable time. 29

In Brown v. Chase the Washington court held that, where the
supply of water in a stream is limited, the presumption is that riparian
lan't L ir-- ac i l-wt: Wiere te supgjof after is more than
ampe ior
appropriation will not injureSan~.. iarian right, and the burden of proof
is upon the riparian owner who claims that he is injured.


24. 56 Am. Jur. 728, sec. 274; Fall River Valley Irr. Dist. v. Mt. Shasta
Power Corp., 202 Cal. 56, 259 P. 444; Tulare Irr. Dist. v. Lindsay
Strathmore Irr. Dist., 3 Cal. (2d) 489, 45 P. (2d) 972; St. Germain Irri-
gating Co. v. Hawthorn Ditch Co., 32 S. D. 260, 143 N. W. 124.
25. In re Hood River, 114 Ore. 112, 227 P. 1065, 1085-1087.
26. Fall River Valley Irr. Dist. v. Mt. Shasta Power Corp., 202 Cal. 56,
259 P. 444; St. Germain Irrigating Co. v. Hawthorn Ditch Co., 32 S. D.
260, 143 N. W. 124.
27. McCook Irrigation & Water Power Co. v. Crews, 70 Neb. 109, 96 N. W.
996, 70 Neb. 115, 102 N. W. 249 Cline v. Stock, 71 Neb. 70, 98 N. W. 454,
71 Neb. 79, 102 N. W. 265.
28. State v. Knapp, 167 Kan. 546, 207 P. (2d) 440, 445-448.
29. Brown v. Chase, 125 Wash. 542, 217 P. 23; State v. American Fruit Grow-
ers, 135 Wash. 156, 237 P. 498; Proctor v. Sim, 134 Wash. 606, 236 P. 114;
In Re Rights to Use Waters of Sinlahekin Creek, 162 Wash. 635, 299 P. 649.


- 13 -









These departures from the general rule seem of little consequence
in the southeastern states. Riparian rights attached in this section during
a period when a system of appropriative rights did not exist. 30 The cases
already cited show that riparian rights are universally recognized as
vested property in this area. Schhleal precedents as exist are unfavor-
able to any voting of riparian rights. -Anr sis of these -casei~' a~IIEa
one authority to conclude:

Thus it would appear unlikely that the doctrine of prior
appropriationn could be adopted in a Southeastern State by
/legislative enactment. 32

In Murray v. Preston the Kentucky Court of Appeals ruled that the
General Assembly could not by declaring a stream navigable divest ri-
parian owners of property rights:

The constitution of the state forbids private property
Being taken for public use without just compensation being
previously made. If the creek was not a navigable stream
when this act was passed, it was the private property of the
owners of the adjoining lands. If it was the private property
of appellant, within the boundary of his land, the legislature
could not divest him of his rights by simply calling it a navig-
able stream, when it was not one in fact.

y analogy the same doctrine would almost certainly apply to riparian rights
A this state. Any shift to the appropriation doctrine of water rights, there-
ore, would involve compensating riparian owners for the unused water
rights which would be terminated.

Mill Acts

Mill acts exist in the great majority of states. They are of very
early origin, several having been passed before the Declaration of Inde-
pendence. The principal object of these acts was to encourage the construc-
tion of grist mills, and they provided a condemnation procedure by which the


30. Robert H. Marquis, Richard M. Freeman, and Milton H. Health, "The
Movement for New Water Rights Laws In the Tennessee Valley States, 23
Tennessee Law Review 831.
31. Hood v. Murphy, 231 Ala. 408, 165 So. 219; Birmingham v. Lake, 243
Ala. 367, 10 So. (2d) 24; Ofirv v. State, 86 Ala. 88, 5 So. 653; Murray v.
Preston, 106 Ky. 561, 50 S. W. 1095; Miller v. State, 124 Tenn. 293, 137
S. W. 760; Alf~s-v. Davidson, 39 S. W. 905.
32. AgKj "Riparian Rights in the Southeastern States," 5 S. L. Q.
141, 14 .


- 14 -









owner could compensate all those who would be injured by the construc-
tion of the dam 3

Kentucky is one of several states where the mill act is broad
enough to include "any mill or artnry vnfut to the public. Some state
courts regard the taking of ljad nder hese acts as an exercise om-
inent domain. The Kentucky Court has taken this point of view. The
more general rule, however, is that the mill acts are a legislative regula-
tion of the manner in which the rights of riparian owners may be enjoyed
in the common interest of all and with due regard to the public good.

The Virginia Assembly enacted a mill act as early as 1667. This
law is concerned only with acquisition of land on the "other side" of the
stream and indicates that the Assembly probably never dreamed thatpub-
lic right to the bed or water of the stream would ever be questioned6

Kentucky Mill Act of 1797

This law provided a condemnation procedure for persons who
wanted to build a mill dam butdid not own the land against which the dam
would abut on the opposite side ~ oi.heatea.m. The statute was effective
onTy fifhe~sTra-e-b'iedTlonged to the state or to the person desiring to
build the dam.

The applicant petitioned the county court which directed the sher-
iff to empanel a jury of twelve freeholders. The jury located, surveyed
appraised one acre of land where the dam would abut. They-alan.de-
termined what degreefar7- -igoewooulIBbedoiie o ie "property of other
riparian owners by overflow. In addition the statute required that the jury
determine and report on the following issues:

1. Whether the house, yard, office, garden or orchard of any
person would be overflowed.
2. Whether and to what degree navigation and fish passage would
be obstructed.
3. Whether stagnation of the water would create a menace to
public health.


33. Head v. Amoskeag Mfg. Co. (1885), 113 U. S. 9, 28 L. Ed. 889,
5 Sup. Ct. Rep. 441.
34. Anderson v. Cincinnati Southern Railway, 86 Ky. 44.
35. 54 A. L. R. 32.
36. 2 Hening 260.


- 15-


I)









The courts strictly construed the statute and held any jury report void
which did not make a finding on each of these five points.

The court then summoned each person likely to be damaged by the
dam to show cause why it should not be built. If the court found that the
house, yard, office, garden or orchard of any owner would be over-
flowed or if public health would be threatened, authority to build the dam
could not be given by the court. In the absence of such findings, the
court ordered the conditions which it considered necessary to protect
navigation and fish passage.

The applicant then paid the damages awarded by the jury to the
owner of the acre of land against which the dam would abut and to those
persons whose property would be injured by overflow. He received title
to the acre of land, conditioned upon his starting to build the dam in one
year, completing it in three years, and continuing to keep it in repair
for public use.

Amendments to 1797 Act

An 1810 act extended this condemnation procedure to cover ac-
quisition of land for the construction of any kind of water works. The
statute revision act passed in 1852 extended the coverage of this law to
include any "grist mill or other mill or manufactory useful to the public. "
The present mill act, passed in 1893 and codified as Kentucky Revised
Statutes 182. 170 to 182. 240, applies to the construction of any "mill or
factory useful to the public. The 1893 act also provides for fixing of
damages by three commissioners appointed by the county court rather
than the jury specified in the early act.

Present Day Application of Mill Acts

Modern technology has, of course, made the waterpowered grist
mill largely obsolete. The importance of mill acts for that reason has
waned. The application of the Kentucky mill act in respect to its broader
scope of a "mill or factory useful to the public" is largely untested in
recent years. No cases have arisen which would indicate how far the
court is willing to go in permitting those building factories to condemn
water rights under the mill act.

Courts in other states have described the mill acts as represent-
ing the extreme limits of legislative power in respect to private property. 37


37. Miller v. Troost 14 Minn. 365, Gil. 282; Salisbury Mills v. For-
saith 57 N. H. 124.


- 16 -


I









In the Troost case the Minnesota court reluctantly upheld the mill act,
but indicated that a mere incidental benefit to the public was insufficient,
if the "m`IT" Wr notin tact public mills. The decision .atted that if
simil iairs"UeTs Tad not been ot ned .h ts, the
court would hesitate long in upholding the mill act.

Decisions in many other states indicate that the exercise of
eminent domain under the mill acts in favor of a private owner cannot be
sustained on a mere theory of general public benefit or public welfare,
apart from a right of user by the public. This ruling is found in cases
from Alabama, Geo rgia. jlinois, Kansas, Michigan, Tennessee, Vermont,
Virginia and West Virginia. ------ ...

The general rule withresect to eminent domain is that to consti-
tute a public use there must exist a right of user on e
or some art ir uas- public agency, alter t-
erty has been condemned. With this right of user must be associated a.
right of regulation by te publ c s s so u o e expected public
benefits. ---............ -...

While the cases upholding the mill acts extended this general doc-
trine somewhat, they did so because of special economic conditions since
largely changed. The extension even then did not appear to go beyond
cases where the water sources needed were fixed in location and limited
in number, so that public convenience or necessity would demand that the
available sites be used for manufacturing purposes. Where a choice of
locations for a factory are available, though one may be more convenient
and advantageous thanthe others, probably few state courts today would
uphold the use of eminent domain to obtain a site.

As early as 1847 the Kentucky Court of Appeals gave great weight
to the public convenience and necessity in a case concerning the right to
erect a dam under the mill act in an area already adequately served by
mills. 39 The Court held that the public necessity under these circum-
stances was not such as to require the infliction of serious injury on any
individual.

Statutes conferring the power of eminent domain are strictly con-
strued in Kentucky. 40 Specific statutes provide for the exercise of


38. 54 A. L. R. 41-45.
39. McDougle v. Clark, 46 Ky. 448.
40. Royal Elkhorn Coal Co. v. Elk Horn Coal Corporation, 194 Ky. 8,
237 S. W. 1083.


- 17 -









eminent domain in Kentucky to acquire land for roads, railroads, tele-
phone companies and other public utilities, pipelines, and airports. 41

The Court of Appeals in Chesapeake Stone Co. v. Moreland in-
dicates the probable limits to which condemnation of rights under the mill
act could be extended:4Z

.. Although our court has sustained the right to take pri-
vate property when necessary to enable the citizen to
perform a public duty or service, and to permit the estab-
lishment of mills, it has never sanctioned the taking for any
other purpose, unless the public had a right to use the prop-
erty taken. In fact, with the single exception of mills, the
right of the individual to take property for an enterprise or
improvement, in which the public had no rights other than
those that flowed from the advantage they might enjoy from
the conduct or operation of the property, has never been
approved; and mills so erected have always been subject to
legislative control and supervision, the same as railroads
and turnpikes, and upon this theory the taking of property
for their establishment may be justified.

In light of these facts, the mill act would appear to have very lim-
ited application in the present economy. In a rural area where such facil-
ity was necessary, it undoubtedly could be used to obtain land and water
rights for a grist mill. For any other type of factory to come within the
scope of the act it would have to be of such a clearly public nature that
eminent domain probably could be exercised in its favor under one of the
public utility acts codified in Chapter 416 of the Kentucky Revised Statutes.

Condemnation of Water Source by Cities

Kentucky cities have not always been fully aware of their power
under eminent domain to condemn and compensate owners for a water
supply. This power of eminent domain is given to first-43, second-44,


41. Cornwell v. Central Kentucky Natural Gas Co., 249 S. W. (2d)
531.
42. 126 Ky. 656, 104 S. W. 762, 31 Ky. Law Rep. 1075, 16 L. R. A.
(N.S.) 479.
43. KRS 93. 100.
44. KRS 84. 150.


- 18 -










third-45, fourth-46, fifth-47, and sixth-class48 cities, as well as to
privately owned waterworks supplying a city. 49

It is incident to the sovereignty of every government that it may
take private property for a public use. 50 Condemnation of private prop-
erty for a municipal water supply is clearly a public use. 51

The genera 1 --li ila rta a city as merely a riparian owner has no
right to divert a public water supply from a stream. 52 Such a right may
be obtained through press cr.tionno ny artve ise. 53 The prescriptive
period in Kentucky is fiten years.

Where water is available in its area, a city need never suffer from
a shortage of water supply. Private rights can be condemned, the owners
compensated, and the water used by the inhabitants of the city.

Summary

Water is one of the most important resources of any state. For
that reason, every state and almost all foreign countries have laws gov-
erning the use of water.

The Kentucky Court of Appeals proclaimed the riparian rights doc-
trine of water law in 1887. Domestic uses are paramount, and each ri-
parian owner has a right to as much of the water in the stream as he needs
for these purposes, even if the entire flow be consumed. After domestic
uses have been satisfied, he is entitled to a reasonable and proportionate
use of the remaining water, which will not exclude other riparian owners
from a benefit to which they are equally entitled with him.



45. KRS 85. 120
46. KRS 86.110
47. KRS 87. 090
48. KRS 88. 100
49. KRS 96. 080
50. O'Hara v. Lexington O. R. Co., 31 Ky. 232, 1 Dana 232; Henry v.
Underwood, 31 Ky. 245, 1 Dana 245.
51. Natcher v. City of Bowling Green, 264 Ky. 584, 95 S. W. (2d) 255;
Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685; Dillon on Mu-
nicipal Corporations 1633, sec. 1033.
52. 56 Am. Jur. 949, sec. 43.
53. 56 Am. Jur. 953, sec. 46.


- 19 -








The Water Conservation Law of 1954 clarified the application of
riparian rights in Kentucky and codified already existing case law. The
new law emphasized the right of riparian owners to impound water during
periods of excess flow.

Adverse use of water for fifteen years in Kentucky gives a pre-
scriptive right. The riparian use of water, although excessive, however,
does not mature a prescriptive right. Construction and maintenance of a ,
dam for the statutory period does become a prescriptive right.

Riparian rights are vested rights in Kentucky. Unused riparian
rights apparently could not be terminated, in shifting to the appropriation
doctrine of water law, without compensation to the owners.

The mill acts were originally enacted to promote construction of
grist mills regulated as public utilities. Despite the wording of the Ken-
tucky mill act, it does not grant authority to condemn land and water
rights for the construction of factories where the public may benefit but
has no clear right of use.

Cities have the right of eminent domain to condemn a water supply.
They may also acquire a prescriptive right to divert a municipal water
supply from a stream, but cities cannot claim merely as riparian owners
the right to supply all of their inhabitants with water.


!'%Y6I C4 C~&


CL


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laYcc3 4 ~~p LAA7k

C/LIC' rdG~C~CPP~. -t" -f4~-


ko-L_


= L3 -_ S C)


- 20 -


--


ZO) )Q e,/If (

L^








I. WATER SUPPLY OF KENTUCKY


The physical basis of water supply is made up of many natural
factors. These factors are interrelated in a complicated manner.

In general water passes through a balanced cycle each year. This
cycle is graphically presented in Plate 1. Precipitation each year equals
runoff, evaporation, and transpiration (the use and discharge of water
into the air by plants). This formula is modified by changes in the amount
of water in underground or surface storage.

The amount of water available for use in any given area is affected
by total rainfall, distribution of rainfall by seasons, temperature, soil
type, topography, type of vegetation, and man-made facilities for con-
trolling water supply. All of these conditions must be considered in
evaluating water supply.

Climate

Kentucky has what is referred to as a continental climate. *. The
variation in precipitation and temperature is quite wide, because the
state lies toward the center of a great land mass and removed from the
direct influence of the oceans. Despite this fact, however, the climate
is generally temperate, healthful, and well adapted to varied plant and
animal life.

Precipitation

Kentucky is a water rich state. The average annual precipitation
of 45. 76 inches is over three times as much as in the Arid western states
of New Mexico and Arizona.

The state lies in the path of moiSture -bearing low-pressure
formations that move from the western Gulf region across the Mississippi
and Ohio Valleys to the Great Lakes and northern Atlantic coast. The
greater part of the precipitation is obtained from these formations which
fluctuate widely in frequency, character and force. As' result, the
amount of rainfall received varies considerably in individual months, sea-
sons, and years. The average annual precipitation in the Eastern Coal
Field Region is 3 to 6 inches more than over the Bluegrass Region.


1. "Climate of the States, Kentucky, Agricultural Yearbook Separate
No. 1837 (Washington: U.S. Government Printing Office, 1941), pp. 891 ff.


-21-









Plate 1


evaporation and .::.:::.
Ecour transpiration
eC rin or,]r
4


stoag .




ROCK
oDean

The sources of all our water supplies are rivers, lakes and underground reservoirs. As we draw water
from these they are refilled by precipitation. The constant movement of water, from clouds to earth
and back again, is called the hydrologic cycle.
Adapted with permission from "The Story of Water Supply" copyrighted by American Water Works Association, Inc.












Map 1










Plate 2


Plate 3


KENTUGKY
AVERAGE JULY TEMPERATURE


KENTUCKY
AVERAGE WARM-SEASON
PRECIPITATION (INCHES)
(APRIL TO SEPTEMBER, INCLUSIVE)


KENTUCKY
AVERAGE JANUARY TEMPERATURE










The average annual precipitation varies from 40 to 46 inches in
the northern half of the state and from 46 to 50 inches in the southern
half. As shown on Map 1 the annual average varies from just under 40
inches in the extreme north to just over 50 inches in the south. Approx-
imately half of the precipitation occurs in the warm season from April
to September. Precipitation in heavy rainfalls is often 3 to 4 inches
in a twenty-four hour period, occasionally 6 inches, and sometimes as
much as 10 inches.

During the growing season rainfall usually is sufficient for crops.
Occasionally, too much rain in the spring months delays planting and
cultivation of crops. Droughty conditions frequently prevail, reducing
the yield of crops, unless supplemental irrigation is available.

Temperature

The average annual temperature ranges from 540F in the north
to 590 in the southwest. Summer temperatures usually reach 100oF or
slightly over but rarely for more than a few days. Minimum temperatures
below zero occur with moderate frequency in December, January and Feb-
ruary, but severely cold weather seldom lasts longer than 60 days. Long
cold periods are always broken by intervals of moderate temperature.
Plate 2 shows the average January and July temperatures for the state.

The average date of the last killing frost in spring ranges from
March 30 in the extreme southwest to April 23 in parts of the Eastern
Coal Field. The first killing frost in fall ranges from October 15 in the
Eastern Coal Field to October 25 in the Jackson Purchase. The average
length of growing season varies from 176 days in the southeast to 197 days
in the extreme southwest part of the state. The growing season has been
as long as 232 days and as short as 149 days. Plate 3 indicates the aver-
age number of days without killing frost and average warm season pre-
cipitation for the state.

Evapotranspiration

The soil is a reservoir which receives water from rainfall. Evap-
oration and transpiration represent the return of water to the atmosphere.
The heat of the sun converts water in the soil into vapor which is carried
into the atmosphere. Transpiration is the process by which water is
evaporated from growing plants. These two processes are combined as
evapotranspiration to represent the greatest utilization of rainfall.

Actual evapotranspiration is very difficult to measure. The most
reliable estimates available indicate that evaporation and transpiration


- 25 -









use nearly 29 inches of the average annual rainfall in Kentucky. 2 The
remaining 17 inches is runoff which flows into streams and lakes or
recharges ground water. This 17 inches represents the total water
available for domestic, industrial, municipal, recreational, irrigation
and other purposes in the state.

Since Kentucky has an area of 40, 395 square miles, the annual
average runoff is about 36. 5 million acre-feet or nearly 12 trillion gal-
lons. The water law described in the last chapter governs how this vast
natural resource will be used.

Physiographic Regions3

Kentucky is divided into six major physiographic regions. Each
of these regions has a distinct geological history which accounts for its
present topography. Geological history itself is technical and involved.
The resulting physiographic regions, however, to a great degree con-
trol land use, agricultural and industrial development, and stream flow
characteristics. In this way they are a vital factor in determining both
the supply of and demand for water.

The major physiographic regions are the Blue Grass, Knobs,
Eastern Coal Field, Western Coal Field, Mississippian Plateau, and
Jackson Purchase areas. Map 2, prepared by A. K. Lobeck, shows
these regions in relief. Lobeck's Cumberland Plateau is the same area


2. House Interior and Insular Affairs Committee, The Physical Basis of
Water Supply and Its Principal Uses (Washington: The Committee, 1952),
p. 40; Telephone conversation with Mr. George R. Marth, Hydrologist,
River Forecast Office, Cincinnati, Ohio, September, 1955.
3. The data on physiographic regions in this section and Map 3 were de-
rived from the following sources:

Wilbur Greeley Burroughs, Geography of the Kentucky Knobs
(Frankfort: The Kentucky Geological Survey, 1926).
Wilbur Greeley Burroughs, Geography of the Western Coal
Field (Frankfort: The Kentucky Geological Survey, 1924).
Darrell Haug Davis, Geography of the Blue Grass Region
(Frankfort: The Kentucky Geological Survey, 1927).
Darrell Haug Davis, Geography of the Jackson Purchase
(Frankfort: The Kentucky Geological Survey, 1923).
Darrell Haug Davis, Geography of the Kentucky Mountains
(Frankfort: The Kentucky Geological Survey, 1924).
Carl Ortwin Sauer, Geography of the Pennyroyal (Frankfort:
The Kentucky Geological Survey, 1927).


- 26 -








Map 2


*7 C i ncnintn a

PHYSIOGRAPHIC DIAGRAM
of

KENTUC KY g ihied- .-
By A. K. Lobeck









.,. *._.- ..-- .. ,---. -
-Q!o. P -U"
.. Evanville










h rpprltYppin Sprin-s E rpment iO ing SVmI I I : p e Mtn,
l n n,








GULF 002FIL PLAIN WESTERN COAL IN CINCINNATT I ARCH CUMBERLAND PLATEAU









referred to above as the Eastern Coal Field. Map 3 indicates the same
regions but also shows major streams, county boundaries, and county.
seat towns. Map 3 is based on the series of Kentucky regional geo-
graphic studies completed under the direction of Dr. Willard Rouse
Jillson for the Kentucky Geological Survey in the 1920's.

Blue Grass Region

The Blue Grass region is a limestone country, typically a gently
rolling upland. The major rivers have cut channels 400 to 500 feet deep,
and the land is distinctly rough in the vicinity of these streams. In the
wide areas between streams, erosion has been slight and deep limestone
soils of great fertilityhave been formed.

The Blue Grass was the earliest part of the state to be settled and
one of the first regions west of the Appalachians to be developed. Large
springs are common and the locations of several large towns, such as
Lexington, Harrodsburg and Georgetown, originally were determined by
their presence.

The Blue Grass region is divided into three sections: the Inner
Blue Grass, the Eden Shale Belt and the Outer Blue Grass.

Inner Blue Grass Section. This section is formed by the outcropping of
limestone formations. The topography is gently rolling except along the
streams which have cut deep channels.

Water has dissolved the limestone to form many sinkholes, and
much of the drainage in this section is underground. Soils are extremely
fertile, and the section is intensively farmed.

The major industries are tobacco, livestock raising and distill-
ing of alcoholic beverages. The large cities are Lexington, Frankfort,
Versailles, Georgetown, Nicholasville, Danville, Paris, Cynthiana,
Winchester, and Harrodsburg.

Eden Shale Belt. This section is a relatively narrow outcropping of shale
and limestones surrounding the Inner Blue Grass. The EdenShale Belt
ranges from 2 miles wide in the south to 70 miles in the north.

The Eden shale is relatively impervious to water and erodes quite
easily. Weathering has produced a rough hilly country.

This is an area of narrow valleys and sharp, irregular ridges.
The slopes erode easily when kept under cultivation. Probably less than
one-quarter of the section can be cropped profitably and permanently.


- 28 -







887- 86. 85*






KENTUCKY

PHYSIOGRAPHIC REGIONS
SCALE
I a 11 a Mile

BASE MAP COMPILED BY
THE AGRICULTURAL & INDUSTRIAL DEVELOPMENT IOAID lU KENTUCKY
And THE DEPARTMENT of GEOGRAPHY, UNIVERSITY IRENTUCII "Y
Available For Disirluloen From The A.& 1.0. eard, Freakfort, olletcky
COUNTY DATA FlO STATE- WIE IISWAY PLAiNNIN SURVEY L usVI
REGIONAL OVERLAY BY GO
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Some parts of the area where the percentage of limestone in the
soil is higher have produced a gently rolling land of high productivity.
Farms here are quite large and prosperous.

The Eden Shale Belt has no major towns. The population is largely
served by urban centers in either the Inner or Outer Blue Grass.

Outer Blue Grass Section. The Outer Blue Grass is a limestone area
similar to the Inner Blue Grass but somewhat less productive. It is an
area of rolling to rugged hills with some broad, flat lowlands. The roll-
ing areas support large, productive farms. Farms in the sections of
rugged hills and flat lowlands are usually smaller. The large towns are
Richmond, Mount Sterling, Shelbyville, Bardstown and La Grange.

The Knobs

The Knobs are a belt of hills and ridges, with a narrow strip of
rolling land forming their inner margin, which extends in the form of a
horseshoe from Vanceburg on the Ohio River in Lewis County to the north-
ern part of Oldham County. The total distance is about 233 miles. The
area of the Knobs is approximately 2, 218 square miles.

The Knobs adjacent to the Blue Grass Region are gently sloping
hills and ridges with flat bottom lands bordering the creeks. Away from
the Blue Grass they change into hilly and mountainous topography. The
knobs at first rise from comparatively level land, giving the region its
name, but cluster closer together as the mountain and plateau regions are
approached. Finally, in the more mountainous sections the roads follow
the creeks with high knobs on each side.

The soils of the Knobs are naturally rather thin but can be built
up to produce good crops. Runoff of rainfall is rapid on the steep slopes,
but some of the lowlands along the major rivers have required drainage,

Berea and Irvine are cities located at passes through the Knobs.
Vanceburg, Morehead and Lebanon are other important towns of the
area. A part of the city of Louisville extends onto knob formations.

Eastern Coal Field

The Eastern Coal Field embraces all of Kentucky east of a line
drawn from Portsmouth on the Ohio River to the southwest corner of
Wayne County, an area of 10, 450 square miles or about 25 percent of the
total area of the state. Geologically, the Eastern Coal Field is an area
of sandstones, shales and coal, underlaid with massive sandstones and
hard conglomerates (pebbles and rocks bonded together by other sub-
stances) interspersed with shales and coal.


-31-









The Eastern Coal Field is the Kentucky portion of the Cumber-
land Plateau. The ridges, deeply cut by streams, rise from 1000 feet
above sea level at the Ohio River to 2, 000 feet at the Tennessee border.
The region is covered by a network of streams which head against one
another on the opposite sides of the ridges.

In the southeast the Cumberland and Pine Mountain chains rise
to an altitude of 2, 500 to 3, 600 feet. Between these two ridges the Black
Mountains reach an altitude of over 4, 000 feet.

The underlying large sandstones and conglomerates outcrop along
the western edge of the area. The differences in these rocks make the
western one-third of the Eastern Coal Field very different from the rest
of the area. On this basis the Eastern Coal Field has been divided into
the Ridge Top Settlements and the Creek Bottom Settlements.

Ridge Top Settlements. This belt ranges from five miles in width at
the Ohio River to twenty-five miles at the Tennessee border. Here the
streams have cut deeply into the sandstone and conglomerate. The ridges
are wide, and the valleys have little level land along the stream margin.
The hillsides are too steep for agricultural uses.

Cultivated soils on top the ridges are thin and sandy and often
contain gravel. They do not retain moisture, as they contain little clay.
Their plant food content is low, and crops suffer severely from a short-
age of water in dry seasons.

Along the extreme western margin the larger streams such as
the Cumberland and Kentucky rivers have cut through to underlying lime-
stones. These valleys are often wide and fertile. They really represent
a penetration of the mountains by the conditions found in the Outer Blue
Grass and Mississippian Plateau areas.

The most important towns in this section are Corbin, London,
Whitley City, and McKee.

Creek Bottom Settlements. The eastern two-thirds of the Eastern Coal
Field is very different from the Ridge Top Settlements. The ridges are
generally higher and have sharp crests with little level land at the top.
Farms are at the bottoms of the ridges and extend up nearly every little
creek to the headwaters.

Although the ridges are steep, they are seldom precipitous and
often are cultivated to the top. The soils are thin and wash badly. They
are usually loams and silt loams.


- 32 -









The population is largely located along the stream valleys, and
roads follow the streams. The major towns in this section are Ashland,
Catlettsburg, Hazard, Pikeville, Prestonsburg, Jackson, Whitesburg,
Pineville, Middlesboro, and Harlan.

Mississippian Plateau Region

The Mississippian Plateau Region is a U-shaped region lying in
the west-central part of the state. It is part of the larger Interior Low
Plateaus reaching from southeastern Ohio to northern Mississippi.

The region is typically a gently rolling plain underlain by lime-
stone. The Blue Grass Region is the only other Kentucky area underlaid
with limestone. The Mississippian Plateau Region, however, is consider-
ably higher than the Blue Grass and is derived from a different body of
limestone rocks.

This region is dotted with numerous sinkholes, some of which
were formed by collapse of the surface into caverns. These caves were
formed by action of water in dissolving the underlying limestone.

The soils resemble those of the Blue Grass Region in depth, tex-
ture and color. They are less fertile than those of the Blue Grass Region
only because of a deficiency in readily soluble phosphorus and lime.

Agriculture is the most important industry. The chief crops are
tobacco and corn, with dairying and livestock becoming increasingly im-
portant as more land is converted into pasture.

The Mississippian Plateau Region is divided into six areas. These
areas vary somewhat in soils, topography, and water resources.

Interfluvial Area. Between Kentucky Lake and the Cumberland River lies
the Interfluvial Area. Here the underlying limestones are deeply covered
with gravel deposits usually held together with clay.

Very little of the land is suitable for farming except on the flood
plain of the Cumberland River. Its soils have more sand, probably car-
ried down from the mountains by the river, and can produce satisfactory
crops.

Most of the Interfluvial Area is included in the Kentucky Woodlands
Wildlife Refuge of the United States Fish and Wildlife Service. Eddyville
is the largest town in the area.


-33-









Pennyroyal Area. The Pennyroyal Area possesses to a higher degree
than any of the other sub-regions the general characteristics described
for the Mississippian Plateau Region. The underlying limestone is easily
dissolved by water. The land is gently rolling and dotted with sinkholes.

The land is fertile and farms large and prosperous. Normal
drainage is found along the Green and Barren Rivers, but away from the
rivers drainage is largely into sinkholes which feed the streams through
springs and seeps.

The largest towns in this area are Bowling Green, Elizabethtown
and Hopkinsville.

Marion Area. This area is similar to the Pennyroyal area except that it
has been changed through faulting. Sinkholes are common where the lime-
stones are at the surface, but where faulting has brought shale or sand-
stone to the top normal surface drainage has developed.

The sides of the valleys are steep, and little flat land is available
for farming. Much of the area is forested. Marion and Princeton are
the largest towns in the area.

Clifty Area. The Clifty Area bounds the Pennyroyal on the north and
west. Here the limestone dips below a layer of sandstone. The break
is distinct in most places: steep sandstone topped hills rise from the rel-
atively flat Pennyroyal plateau.

The land in most of the area is rolling but not rough. In general
farms and towns are small. Hardinsburg and Leitchfield are the major
towns.

Greensburg Area. This area is largely underlain with limestones of low
lime content and high resistance to water. Topography of the area is
quite varied.

Northern Green, Taylor and Casey Counties have fairly rough sand-
stone knobs and sand-covered ridges. Central and Southern Taylor County
has rolling slopes and productive soil which resists erosion. Allen and
Adair Counties have fairly smooth and productive surfaces. The eastern
part of the area is rather rough with steep hills and narrow bottom lands.

The larger towns include Glasgow, Campbellsville, Columbia and
Greensburg.

Mountain Margin Area. This area lies between the Cumberland River and
the Eastern Coal Field. The land next to the Cumberland River is deeply


- 34 -









cut by streams, the valleys are steep sided and most of the area is in
forest.

The central part is smooth to rolling upland underlaid with cav-
ernous limestone and very similar to the Pennyroyal area. The soils
here are good and the farms prosperous. Two of the major towns,
Monticello and Albany, are located on this limestone plain.

The land adjacent to the Eastern Coal Field consists of limestone
valleys separated by ridges of mountain sandstones. Most of this section
is forested.

Western Coal Field

The Western Coal Field is the southeastern part of the great East-
ern Interior Coal Field. This large basin includes parts of Indiana and
Illinois.

The eastern and southern margins of the Western Coal Field are a
plain deeply cut by erosion. The resulting hills are rugged and the valleys
narrow.

Away from the rough surfaced border areas toward the interior of
the Western Coal Field the valleys increase in width and the hills become
less rugged. Flat bottom lands border the streams. In many of these
flat valley bottoms drainage is poor and the land swampy. Extensive
drainage projects have made substantial amounts of land available for cul-
tivation.

Large areas toward the Ohio River are gently rolling farm land.
The Ohio River bottoms form a plain along the north of the area ranging
from one-fourth to 7. 5 miles wide. This plain in most places is about
20 feet above the normal water level.

The largest and most prosperous farms are along the rivers. The
rolling lands are fertile, but the farms are usually smaller.

Henderson and Owensboro are along the Ohio River flood plain. The
other major towns are Madisonville, Morganfield and Hartford.

The Jackson Purchase Area

The eight counties lying west of the Tennessee River comprise
the Jackson Purchase Area. They constitute just over 5 percent of
the area of the state. With the exception of a small belt of hills west of
Kentucky Lake, all of the soils have been deposited by wind and water.


-35-









Extensive flood plains border the rivers. Most of the land back
from the streams is low and rolling. West of Kentucky Lake a belt of
hills extends north from the Tennessee state line.

Much of the land is swampy and drainage ditches to open the bot-
toms for cultivation are common. The soils when adequately drained dry
rapidly permitting early planting. The same characteristic, however,
causes crops to suffer from summer droughts. Interest in irrigation is
becoming widespread.

Large scale industrial development is taking place in this area.
The recreational potential of Kentucky Lake is an important source of
income. Industrial development has led to expansion of truck and dairy
farming.

Paducah is located on the flood plain where the Tennessee River
empties into the Ohio River. The other major towns are Mayfield and
Murray.

Principal Drainage Basins4

The State of Kentucky covers an area of 40, 395 square miles. All
of the state lies in the Ohio River Basin, except a small section in the
Jackson Purchase area which drains directly into the Mississippi River.
Map 4 shows the principal drainage basins within the state.

Big Sandy River Basin. The Big Sandy River is formed by the joining of
the Levisa Fork and Tug Fork at Louisa. From Louisa the Big Sandy
River flows northward for 27 miles to Catlettsburg where it joins the Ohio
River. Levisa Fork rises in Virginia and flows northward through the
mountains of eastern Kentucky. Tug Fork also rises in Virginia and flows
north forming the boundary between Kentucky and West Virginia for 93
miles. The Big Sandy River drains 4, 281 square miles, of which 2, 280
square miles lie in Kentucky.

The watershed in Kentucky is in the Eastern Coal Field which is
a dissected plateau of moderate to strong relief. The rocks are mainly
sandstone, shale and coal. The predominant soil type is a thin sandstone
soil. In the lower part of the basin the valleys are wider and hills re-
place the more mountainous terrain.

The Big Sandy River has an average fall of one foot per mile. The
extreme low water discharge is about 200 cubic feet per second.


4. Warren Raymond King, Surface Waters of Kentucky (Frankfort: The
Kentucky Geological Survey, 1924), pp. 27-45.

36 -


I -C- I -





Map 4


REFERENCE MAP


KENTUCKY

1954


OUTLINES AND NAMES OF MAJOR DRAINAGE AREAS SHOWN IN RED.
POPULATION OF CITIES


SCALE
1 I III N


SLOUISVILLE 100,000 or More COUNTY SEATS
W LEXINGTON 20,000-100,000 M MADISONVILLE MoreThan 8,000
MIDDLESBORO 1,000-20,000 crYNMHINA 3,000- 1,000
* MORGAI ELD 3,000-1,000 wni.m.tM 1,000-3,000
* Manchest 1,000-3,000 smith Les.Than 1,000

N 4 Mil. POPULATION FROM 1950 CENSUS
Sg UIMiles


MAP COMPILED BY
THE AGRICULTURAL & INDUSTRIAL DEVELOPMENT IOARD of KENTUCKY
And THE DEPARTMENT of GEOGRAPHY, UNIVERSITY of KENTUCKY


--m


Ip--I---l--l- _.-1 ^_-_1_1.1_~~ ._ ^ .---1_---11_ -1 --I_- _-.)_II^~_- _~ __)~-_1 --I -__1_1_ ---_111~~ 1~.--.11 .i-ll _..-___..^I--~._






Map 4


~1 o ~3.


_-~-~__i-__._1~ .i_I_L_^.I ^__ ._4_111^-1...__. ----- ..I -- .-__~^_ _I--.^.X__-l- -- .-I---I-.-


W SIT









Licking River Basin. The entire watershed of the Licking River lies
within the State of Kentucky. The Licking rises in Magoffin County, flows
northwestward for 320 miles and empties into the Ohio River at Covington.

Most of the drainage area is rugged and hilly. The drainage area
comprises 3, 655 square miles and is long and narrow. Consequently
the tributary streams are short and have steep slopes which'result in a
rapid runoff. The flow, therefore, is very high during wet weather and
extremely low in drought periods.

The discharge of the Licking River into the Ohio during extreme
low water has been recorded as 14 cubic feet per second. The largest
tributary, the South Fork, has been almost dry at times.

Kentucky River Basin. The Kentucky River Basin covers an area of
6, 900 square miles lying wholly within the state. This drainage basin
comprises more than one-sixth of the area of the state.

The Kentucky River is formed by the confluence of the North, Mid-
dle and South Forks at Beattyville. These tributaries rise in the moun-
tainous southeastern corner of the state, within the Eastern Coal Field.
The Kentucky River then flows through the Blue Grass Region to Carroll-
ton where it empties into the Ohio River.

The principal tributaries, in addition to the headwater forks, are
the Red and Dix Rivers and Elkhorn and Eagle Creeks. The basin ranges
up to about 60 miles in width and the main stream extends 250 miles from
Beattyville to Carrollton.

Fourteen locks and dams have been built providing a minimum
depth of six feet from the mouth almost to Beattyville. Another develop-
ment is the hydroelectric plant near the mouth of Dix River.

Salt River Basin. Salt River rises just west of Danville in Boyle County
and flows north then west to join the Ohio River at West Point. The
basin covers an area of 2, 938 square miles, most of which is in the
Blue Grass Region.

The rate of runoff is rapid with high discharge during wet periods
and extremely low flows during droughts. Both Salt River and its major
tributary, Rolling Fork, sometimes discharge no water during drought
periods.

Green River Basin. The Green River rises in Lincoln County in Central
Kentucky. It flows westward for more than 200 miles, then northwestward


-39-









to enter the Ohio River east of Henderson, approximately 370 river
miles from its source.

The river drains an area of 9, 222 square miles, 8, 842 square
miles of which are in Kentucky. The principal tributaries are the Bar-
ren, Nolin, Rough, Mud and Pond rivers. The greater part of the basin
is in the Mississippian Plateau, while the northwestern part lies in the
Western Coal Field.

The watershed is rolling with occasional large hills. Large sec-
tions of the basin are underlaid by cavernous limestone. Ground water
flow is extensive and many springs are evident. During dry periods the
flow of the Green River is sustained by the discharge of ground water.

Tradewater River Basin. Tradewater River rises in Christian County
and flows northwestward to the Ohio River near Caseyville. The prin-
cipal tributaries are Clear and Crab Orchard Creeks. The basin has
a drainage area of 1, 008 square miles.

Nearly all of the drainage area is in the Western Coal Field. In
most places the valleys of the river and its tributaries are wide, and
the streams have little fall. In dry seasons the flow of Tradewater River
sometimes entirely ceases.

Cumberland River Basin. The Cumberland River rises near Whitesburg
in Letcher County. It flows west and then south to enter Tennessee from
Monroe County, Kentucky. The Cumberland re-enters Kentucky in Trigg
County, nearly 130 miles west of the point where it entered Tennessee.
From this point it flows northward for 75 miles to empty into the Ohio
River at Smithland, about 12 miles from Paducah.

The river drains an area of 18, 080 square miles. About 7, 025
square miles of the drainage basin lie in Kentucky. The chief Kentucky
tributaries are Laurel, Rockcastle, South Fork Cumberland and Little
Rivers. A system of locks and dams provide navigation from the mouth
of the Cumberland to well above Nashville.

The headwaters of Cumberland River are in the Eastern Coal
Field. Then the stream flows across the southeastern part of the Missis-'
sippian Plateau and into Tennessee. It re-enters Kentucky and flows
across the western part of the Mississippian Plateau and through the
northern tip of the Jackson Purchase into the Ohio River.

Tennessee River Basin. The Tennessee River is the largest stream
flowing through the state and likewise the largest tributary of the Ohio


- 40 -


t~----~--------










River. The Tennessee River rises in southwestern Virginia, flows
through Tennessee and Alabama, and enters Kentucky at the southwest-
ern corner of the state. From there it flows northward to join the
Ohio River at Paducah.

Only about 1, 000 square miles of the Tennessee River drainage
basin is in Kentucky. The watershed in Kentucky is slightly rolling
lowland.

Variation in Stream Flow

Most problems involving water in the southeastern states are a
matter of distribution. If the flow of Kentucky streams were evenly
distributed throughout the year, the supply would be adequate to meet
all likely demands and floods would not occur. Average discharge then
would represent the supply available at any given time.

Kentucky streams, however, fluctuate widely in flow. Plate 4
shows the average cubic feet per second flow by weeks for four char-
acteristic Kentucky streams. These charts illustrate the fact that
stream flow is low in summer when water is most needed for supple-
mental irrigation. Only a few of the largest streams furnish a depend-
able source for extensive irrigation.

The United States Geological Survey maintains stream-gaging
stations throughout the state. These stations collect continuous data on
stream flow. These data are published in cooperation with the Kentucky
Agricultural and Industrial Development Board. 5 Map 5, reproduced
from the latest of these reports, shows the location of stream-gaging
stations in Kentucky. The table on pages 44 and 45 gives the minimum
recorded flow for each station.

These figures again illustrate how unreliable Kentucky streams
are as a water source because of their irregularity of natural flow. Of
the 108 gaging stations, 34 have recorded no flow, 16 others a flow of
one cubic foot per second or less, and 13 between one and five cubic feet
per second. The majority of farms are located in the watersheds of
smaller tributaries to these streams which are even more irregular in
flow.

This fact explains the large number of farm ponds, reservoirs and
artificial lakes in Kentucky. About 125, 000 such reservoirs have been


5. Agricultural and Industrial Development Board, "Summary of Stream
Flow Data" (Frankfort: The Board, June 1955).


- 41 -






Plate 4


AVERAGE STREAM FLOWS
in cubic feet per second by weeks

TEL CEKAT MOREHE~AD 1951-52 BEC FR AT BRS


NORTH ELKHORN CREEK NEAR GEORGETOWN

5,0004 -- -- -- ----- -- -- -- -- -- -- -- -- --
5.00---- -- -


1.0--0




Soo -1











5








1.0------- -----

.5-- -----------





17 1 19 2 31 37 4 49 52
)u t|blMll"*AIMrlI**u|l AifpOtNI"1 |.c-1


IWU


5


OHIO RIVER AT CINCINNATI


)I


Ir LLI UiLL II mwnnLnln


IO







1000





1.00 -


5.0




10. -
















Ja.. FebM Ap~ ayIJun JIl IAug ISeplt Nov De
,.0 I_ _


TDID


I I '


r i "


I


















Map 5














Average and Minimum Stream Flowi t Gaging Stations


No.
on Stream Location
map


Ohio River
Ohio River
Ohio River
Ohio River
Ohio River
Ohio River
Ohio River
Ohio River


9 Levisa Fork
10 Levisa Fork
11 Levisa Fork
12 Big Sandy River
13 Johns Creek
14 Johns Creek
15 Paint Creek
16 Tug Fork
17 Blaine Creek

18 Little Sandy River
19 Tygarts Creek

20 Licking River
21 Licking River
22 Licking River
23 Licking River
24 Licking River

25 Triplett Creek
26 N.Fk. Licking River
27 S.Fk. Licking River

28 N.Fk.KentuckyR.
29 N.Fk.KentuckyR.
30 Kentucky River
31 Kentucky River
32 Kentucky River
33 .Kentucky River
34 Kentucky River
35 Kentucky River

36 Troublesome Creek
37 M. Fk.Kentucky R.
38 S. Fk. Kentucky R.
39 Red.River
40 Dix River
41 Dix River
42 NorthElkhornCreek
43 Elkhorn Creek
44 SouthElkhornCreek
45 Eagle Creek
46 Eagle Creek


Ashland
Maysville
Cincinnati, Ohio
Louisville
Owensboro
Evansville, Ind.
Golconda, Ill.
Metropolis, 111.

Fishtrap
Pikeville
Paintsville
Louisa
.deta
Van Lear
Staffordsville
Kermit,W.Va.(nr.)
Yatesville

Grayson
Greenup

Salyersville
Farmers
Blue Lick Springs
McKinneysburg
Catawba

Morehead
Lewisburg
Cynthiana

Hazard
Jackson
Heidelberg
Winchester
Camp Nelson
Warwick
Frankfort
Lockport

Noble
Tallega
Booneville
Clay City
Danville
Burgin
Georgetown
Frankfort/
Fort Spring
Sadieville
Glencoe


47 S.Fk. BeargrassCr. Louisville
48 M.Fk. Beargrass Cr. Louisville


Salt River
Salt River
Floyds Fork
Rolling Fork
Rolling Fork
Beech Fork
Pond Creek


Van Buren
Shepherdsville
Fisherville
Lebanon
Boston
Bardstown
Louisville


Average Minimum Recorded Discharge


Discharge
(cfs)
83,550
92,960
97,710
114,800
127,500
136,600
180,900
264,100

428
1,323
2,287
4, 102
65.5
a206
151
1,300
263

489
306

161
1,080
2,355
3,006
4,158

76.6
175
776

538
1,250
3,495
5, 196
5,636
b6,586
b7,177
b8,489

250
652
996
497
462
746
180
600
37.3
66.0
507

23.3
25.6

248
1,614
193
329
1,717
895
88.6


* Minimum month occurred in more than one year.
a Unadjusted for change in contents in Dewey Reservoir.
b Unadjusted for change in contents in Herrington Lake.


- 44 -


Minimum
Day(cfs)
3,760


4,090



20,600

0.1
2.7
8.4
51
0
.1
0
27
.3

2.0
0

0
.7
6.0
3.8
2.9

0
0
.8

1.0
0
4
10

25



0
.2
.1
1.2
0
.3
0
2.5
0
0
0

0
0

0
0
0
0
.4
0
.1


Minimum
Month(cfs)
7,785
8,055
8,565
8,590
11,750
10,830
16,680
35,030

1.2
6.7
11.0
80. 2
0
.6
.6
39.2
.8

3.5
1.2

.3
2.2
11.0
12.0
5.5

0
0
.9

8.7
1.1
9
17.3
75.8
161
91
91.7

1.2
1.0
.4
5.0
0
1.5
0
5.9
0
0
0

0
0

0
.1
0
0
1.9
.4
.8


Year of
Min. Month
1946
1952
1952
1939
1946
1953
1940
1939

1939
1939
1930
1939
1943
1943
1952
1939
1953

1953
1944

1943
1930
1952
1952
1930

*
*
1943

1953
1930
1930
1930
1941
1941
1930
1930

1953
1930
1930
1944
*
1913
1953
1943





1953
1953
*
*



1953

1953
*

1953
194
1941
1953
*
1945














Average and Minimum Stream Flow at Gaging Stations
(Continued)


. Location'


Greensburg
Munfordville
Mammoth Cave
Brownsville
Woodbury
Green River
Livermore


No.
on
map
56
57
58
59
60
61
62

63
64
65
66
67
68

69
70
71
72
73
74
75
76
77
78
79
80
81

82
83

84
85
86
87
88
89
90
91
92

93
94
95
96
97.
98
99


Barren River
Barren River
Barren River
Barren River
West Bays Fork
Drakes Creek
Mud River
Rough River
Rough River
Rough River
Rough River
Pond River
Pond River

Tradewater River
Tradewater River

Poor Fork
Cumberland River
Cumberland River
Cumberland River
Cumberland River
Cumberland River
Cumberland River
Cumberland River
Cumberland River

Yellow Creek
Laurel River
Rockcastle River
Rockcastle River
S.Fk.Cumberland R.
S.Fk.Cumberland R.
Pitman Creek


Pageville
Port Oliver Ford
Bowling Green
Greencastle
Scottsville
Alvaton
Lewisburg
Madrid
Falls of Rough (nr.)
Falls of Rough (at)
Dundee (near)
Apex
White Plains

Olney
Dalton

Cumberland
Harlan
Pineville (nr.)
Barbourville
Williamsburg
Cumberland, Falls
Burnside
Rowena
Smithland

Middlesboro
Otas
Billows
Rockcastle Springs
Stearns
Nevelsville
Somerset (nr.)


100 S. Fk. Little River Hopkinsville
101 Little River Cadiz


102 Tennessee River
103 Tennessee River
104 E. Fk.Clarks River
105 E. Fk.Clarks River

106 Mayfield Creek
107 Obion Creek
108 Bayou de Chien


Murray
Paducah
Murray (at)
Benton

Lovelaceville
Pryorsburg
Clinton


Average Mi
Discharge Min
(cfs) Da
1,094
2,647 4
2,882 9
4,177 13
7,915 25
8,532 25
11,040 28

287
28.7
51.1
810 3
798 4
64.8


870
1,556
2,537
2,519
13.7
740
160
335

703
1.048
276
370

342
283

139
653
1,299
1.787
2,892
3,156
7,534
c8, 854
e30, 290

103
360
914
1.093
1,768
2,187
,,:47.7

93.6
356

68,440
64,060
131
290

251
37.8
94.3


2
4
5
5

1




















45


Stream


5.7
0
4


9.3
0
7.3


1940
*
1943


* Minimum month occurred in more than one year.
c Adjusted for change in contents of Wolf Creek Reservoir.
d Caused by regulation from Wolf Creek Dam and power plant.
e Unadjusted for change in contents in upstream reservoirs.
f Caused by regulation from Kentucky Dam and power plant.


- 45 -


Green River
Green River
Green River
Green River
Green River
Green River
Green River


Russell Creek Columbia
S.Fk.Little BarrenR. Edmonton
N. Fk. Nolin River Hodgenville
Nolin River Wax
Nolin River Kyrock
Bear Creek Leitchfield


minimum Recorded Discharge
imum Minimum Year of
E(cfs) Month(cfs) Min. Month
0.6 7. 2 1953
2 78.3 1953
2 124 1940
2 184 1930
7 321 1940
0 385 1940
10 318 1930

.4 3.0 1953
0 0 *
0 0 1953
14 46.7 1940
0 46.3 1930
0 0 1953

12 38.8 1953
6 86.1 1948
1 68.1 1953
3 117 1930
0 .06- 1952
10 26.2 1953'
0 0 *
7.5 12.1 1953

6.0 13.9 1953
8.1 15.2 1953
0 0 1953
0 0 1939

0 0 *
0 .1 1939

2.5 4.8 1941
6 13.4, 1948
7.3 21.7 1953
.5 13.9 1930
15 33.3 1953
9.0 23.0 1925
2 83.7 1925
10 169 1948
3 917 1948

1.2 3.2 1952
0 1.3 1944
1.3 5.0 1936
1.0 6.2 1930
12 29.6 1953
13 28.1 1925
0 0 *

.2 .6 1953
3.6 12.3 1943

8,850 9,740 1931
f500 15,660 1939
0 0 *
19 2.8


I









reported in the Commonwealth. 6During each drought year about 10, 000
new reservoirs are built, while in years of normal rainfall about 5, 000
are reported.

Such ponds and artificial lakes conserve the abundant rainfall from
surplus months for use in shortage periods. Farm ponds already are the
major source of water for livestock. Undoubtedly, such ponds and lakes
furnish the only practical source of water supply for irrigation in most
sections of the state.

Droughts

Droughts are another major factor affecting water supply in Ken-
tucky. Because of the continental climate described earlier, droughts
are frequent in the state. While average rainfall is more than adequate
for agricultural purposes, the variation in individual years, seasons, and
months often reduces crop yields.

A review of crop reports of the United States Weather Bureau for
the past 55 years indicates that moderate to severe droughts of state-wide
or regional extent occurred during 35 of those years. This finding in-
dicates that droughts reduce agricultural productivity and threaten water
supply in three out of each five years.

Map 6 shows the departure from normal rainfall in 1934, a year
of severe shortage. The plus and minus figures on the map indicate varia-
tions from normal at the weather stations located at those sites.

Plate 5 indicates the annual rainfall by months for the past twenty-
two years. Annual precipitation during this period ranged from a low of
33. 45 inches in 1941 to a high of 63. 10 in 1950. This plate makes very
apparent the greatly reduced rainfall in 1952, 1953, and 1954. Three suc-
cessive years of rainfall deficiency have brought widespread public con-
sciousness of the importance of water supply in a modern agricultural
and industrial economy.

Plate 5 also shows the importance of rainfall during the first three
months in the calendar year. During these months the greatest amount
of fluctuation occurs. The precipitation trend established during the first
quarter tends to continue throughout the year.


6. Earl G. Welch, "Need, Availability and Cost of Farm Water Supply in
Kentucky" (Lexington: College of Agriculture, University of Kentucky,
1954).


- 46 -











Map 6






Plate 5


14E NTUC Y


ANNUAL PRECIPITATION
BY MONTH S


1933 -1954


0 \- -
















0 93- --5 -93- ---98-3- ---91 142-4-94 94 96 14 1948 5949 5950


INOY. )-
IOCT. ~-
ISEPT. ~-



I JVLY ~C





I APRIL ~2-


JAI'.


60


D.


1933 1934 1935 1936 1937


1938 1939 1940 1941 1942 1943 1944 1945 1946 1947 1948 1949 1950


1951 1952 1953 1954









Availability of Ground Water7


Geological formations in Kentucky are such that good supplies of
ground water are not available in most areas of the state. Heavy yields
of ground water suitable for public or industrial uses are rarely found
except in the Jackson Purchase Area and along the alluvial terraces of
the Ohio and Mississippi Rivers.

Map 7 has been drawn to present the physiographic regions of the
state as they relate to ground water resources. The extent of ground
water supplies in each of these areas is set out below.

Inner Blue Grass

Limestone bedrock yields enough water for domestic use to most
drilled wells. A few wells in the valleys of major streams yield 50 to
200 gpm (gallons per minute) for public and industrial water supplies.
Because salt water may be encountered at depth, most wells are less than
200 feet deep. There are many springs in this area. Most of them yield
only a few gallons per minute, but some yield more than 500 gpm.

Outer Blue Grass

Limestone bedrock yields enough water for domestic use to about
half the drilled wells. A few wells yield as much as 25 gpm. Where
shale or shaly limestone forms the bedrock, wells generally do not yield
enough water for domestic use. Because salt water may be encountered
at depth, most wells are less than 100 feet deep. There are many small
springs in this area, but most go dry in late summer.

Knobs and Escarpment

Bedrock of shale, shaly limestone, and sandstone yields enough
water for domestic use to less than half the drilled wells. Springs are
generally small, and most go dry in late summer.

Eastern Area of Mississippian Plateau

Limestone bedrock yields enough water for domestic use to about
half the drilled wells. A few public-supply and industrial wells yield


7, Gerth E. Hendrickson, "Availability of Ground Water in Kentucky, "
manuscript prepared especially for this study and publication authorized
by the Director of the United States Geological Survey.


- 49 -











Map 7









more than 50 gpm. Shale and shaly limestone generally do not yield
enough water for domestic use. Because salt water may be encountered
at depth, most wells are less than 200 feet deep. Most of the springs
in the area are small, but a few yield several hundred gallons per
minute. Only a few of the larger springs are developed for public or
industrial water supplies.

Western Area of Mississippian Plateau

Bedrock of limestone and sandstone yields enough water for
domestic use to most drilled wells. Some public-supply and industrial
wells yield more than 100 gpm. Because salt water may be encountered
at depth, most wells are less than 200 feet deep. However, a few wells
obtain fresh water from depths of several hundred feet. Many large
springs yielding several hundred gallons per minute are found in this
area. A few of the large springs are developed for public, industrial,
and irrigational use, but most as yet are undeveloped.

Eastern Coal Field

Bedrock of sandstone, siltstone, and conglomerate yields enough
water for domestic use to most drilled wells in valleys. About 50 wells -
yield more than 50 gpm for public and industrial water supplies. Some
water is obtained from limestone and coal, but little is obtained from
shale. Because salt water may be encountered at depth, few wells are
more than 200 feet deep. Numerous small springs are present in the
area but most go dry in late summer.

Western Coal Field

Bedrock of sandstone, siltstone, and conglomerate yields enough
water for domestic use to most drilled wells. Some wells yield 100 to
500 gpm for public and industrial water supplies. Some water is ob-
tained from limestone and coal, but little is obtained from shale. Salt
water may be encountered at depth, but some wells obtain fresh water
from depths of several hundred feet. Most springs in the area are small.

Jackson Purchase

Thick beds of sand and gravel yield enough water for public, in-
dustrial, irrigational, and domestic use to most drilled wells. Yields
as great as 1, 400 gpm are reported, and yields of several hundred gal-
lons per minute are common. In the eastern part of the area, in the
vicinity of the Cumberland and Tennessee Rivers, the beds of sand and
gravel are thinner and yields of wells are smaller than in the rest of the


-51-









area. Wells range in depth from less than 100 feet to several hundred
feet. There is no record of salt water in the sand and gravel, even at
great depth.

Alluvial Terraces

Along the Ohio and Mississippi Rivers, sand and gravel generally
yield large amounts of water for public, industrial, irrigational, and
domestic use. Single vertical wells yield as much as 1, 500 gpm and
multiple-well systems yield as much as 9, 000 gpm. Yields of 100 to 500
gpm are common. Depts of wells are generally limited by the depth to
bedrock, which ranges from less than 100 feet to about 200 feet. In the
Louisville area, a few wells yield several hundred gallons per minute from
the limestone bedrock under the alluvium.

Law of Ground Water Use

The general rule is that riparian rights exist in underground
streams haying definite rh~-il. Such rights are governed by the
same general rules applicable in the case of surface streams. The ex-
istence of an underground stream must be demonstrated, however; in the
absence of proof to the contrary, underground waters are presumed to
be ercolating waters (those waters not fowi' 1 wl u ca l).

The Kentucky rule with respect to underground percolating waters
appears to be that the owner of land has an absolute right to al
water beneath He can, therefore, withdraw such water as he
sees fit without regard to the effect on other owners. These cases in-
dicate, howetv_that ae cannot" c -wtfully or malri-ciously diivert
orinjure the supply of percolating waters without liability to other owners.

As ground water investigations continue, the courses of many under-
ground streams undoubtedly will be charted. As a result, many sources
now treated as percolating waters will be determined to be underground
streams. As such, these waters will become subject to the rule of rea-
sonable use.


8. Kevil v. City of Princeton, 118 S. W. 363; Nourse v. Andrews, 200
Ky. 467, 255 S. W. 84; Feldhaus v. Jefferson Co., 264 Ky. 829, 95
S. W. (2d) 970.
9. Kinnaird v. Standard Oil Co., 89 Ky. 468, 12 S. W. 937; Sycamore
Coal Co. v. Stanley, 292 Ky. 168, 166 S. W. (2d) 293.


- 52 -


i 1









Summary

Average annual rainfall in Kentucky is 45.76 inches. This av-
erage varies from just under 40 inches in northern Kentucky to over
50 inches in the southeastern part of the state. About half of the rain-
fall normally occurs during the warm season from April to September.

About Z9 inches of Kentuckyts annual rainfall evaporates from
the soil or is given off into the atmosphere by the life processes of plants.
The remaining 17 inches is runoff which is available for use and man-
agement by man. Runoff in Kentucky averages nearly 12 trillion gallons
per year.

Kentucky climate is such that droughts frequently occur reducing
agricultural production and the amount of water available for industrial
and municipal use. Records show that, on the average, droughts of
state-wide or regional extent reduce agricultural yields and threaten
water supplies in three of each five years.

The topography of Kentucky is such that runoff on most streams
is rapid. This means, that, although total rainfall is in excess of pres-
ent uses, most small streams are dry or at very low flow when water is
most needed. Water must be impounded in periods of excess flow and
conserved for use during times of shortage.

Only in the Jackson Purchase Area and along the alluvial ter-
races of the Ohio and Mississippi Rivers are large quantities of ground
water available for municipal and industrial uses. Enough water for
domestic use can usually be expected from wells in the Inner Blue Grass,
the western area of the Mississippian Plateau, the Eastern Coal Field
and the Western Coal Field. Half or fewer of the wells drilled in the
Outer Blue Grass, Knobs, and the eastern part of the Mississippian
Plateau yield enough water for domestic use.

Since streams are at low flow when water is most needed and
ground water resources are limited in most areas of the state, farmers
have relied heavily on artificial ponds, lakes, and reservoirs. About
125, 000 such impoundments have been listed in Kentucky. From 5, 000
to 10, 000 new reservoirs are built each year. Such ponds constitute the
principal source of water for livestock.

Total water supply in Kentucky is far in excess of present uses.
Droughts and rapid runoff combine, however, to create critical water
needs. The large number of ponds and reservoirs which have been built
represent a way to conserve water during periods of excess for later use.
Such conservation measures are imperative in most areas of the state to
meet the increased needs for water in agricultural production and for
industrial and public water supply.


-53-









III. WATER USE IN KENTUCKY


The major uses of water are for domestic purposes, municipal
supply, industry, irrigation, hydroelectric power, and recreation. Uses
of each type are increasing at an ever more rapid rate.

Many new household appliances require additional water. Auto-
matic washers and garbage disposers in the home are no longer un-
common. Year-round air conditioners in homes and offices present
another new demand for water. As long as the American standard of
living continues to rise, these domestic uses of water will grow.

Industrial expansion such as is occurring in Kentucky, of course,
increases water use. Two modern trends in industrial processing also
have a marked effect on water requirements. The processing of lower
quality raw materials almost always necessitates the use of greater
amounts of water. The production of synthetic materials also requires
far more water than processing natural raw materials. The production
of rayon, nylon, and synthetic rubber all require vast amounts of water.

Irrigation in Kentucky has expanded more than twenty-fold in the
past five years. The recreational potential of Kentucky lakes and streams
has made them a leading tourist attraction and a rich source of income to
residents of the state.

Water Use vs Water Consumption

Many uses of water involve little or no reduction of the available
supply. Recreational uses such as swimming and boating do not reduce
supply. Streams and lakes furnish a habitat for fish and many forms of
wildlife without loss in water quality or quantity.

Numerous other uses represent only a "borrowing" of water and
do not materially reduce the supply in the immediate area. Water merely
passes through hydroelectric and steam power plants. Many industrial
cooling processes change only the temperature of the water.

The state in which water, once used, is returned to the stream or
lake also is vitally important. A municipal system draws water from
a stream and the sewers return wastes. If these wastes have been prop-
erly treated, little change occurs in the available water supply. On the
other hand, discharge of untreated sewerage may make the entire down-
stream flow useless. The adequacy of treatment of industrial wastes,
in the same manner, determines the effect of industrial water use on
total supply.


- 55 -


____ I _~______ ____ ______ _^ __~~__ _1_1_____ ___~___ _____~__









Irrigation is the most notable consumptive use of water. Much
of irrigation water goes back into the atmosphere by evaporation and
transpiration. Such water is not fed directly back into the source from
which it was taken and, in fact, may fall as rain at some far distant
point.

Domestic Water Uses

Under the riparian rights doctrine domestic use of water is
given first priority. Domestic use of water is universally classified as
the most important use of that resource.

Modern life has increased water use tremendously on the farm
and in the rural home. Where water is carried into the house, the aver-
age family uses about 5 gallons per person each day. With running hot
and cold water in the kitchen only, the rate of use goes up to from 15
to 20 gallons per person daily. A complete water system in kitchen, bath-
room and laundry requires from 25 to 40 gallons per person. The rate
of use in cities is much greater, as shown in the next section.

Livestock also consume large quantities of water. Each horse,
mule, or cow requires 10 to 12 gallons per day. Each sheep or hog uses
1 to 2 gallons a day. From 3 to 5 gallons are required for each 100
chickens.

On this basis the use of water on Kentucky farms is considerable.
About 1, 620, 000 Kentuckians are not served by municipal water systems.

In 1950 only 7. 4 percent of Kentucky farm homes had hot and cold
running water, with toilet and bath. The equivalent figure for rural
non-farm homes was 22. 7 percent. Since the numbers of homes in these
two classifications were almost equal, the rate for all rural homes was
about 15 percent. Current figures are not available on the number of
rural homes with complete water systems. Farm water systems are
being installed, however, at the rate of about 2, 000 a year. This fact
would indicate that perhaps 20 percent of rural homes now have water
systems.

On this basis 324, 000 rural Kentuckians are served by water sys-
tems, and 1, 296, 000 carry water into their homes. Using the rates of


1. Earl G. Welch, "Need, Availability and Cost of Farm Water Supply
in Kentucky" in The Farm Water Supply (Lexington: College of Agriculture,
University of Kentucky, 1954), p. 1, p. 10.
2. Bureau of the Census, 1950 United States Census of Housing, Kentucky
(Washington: U. S. Government Printing Office, 1952), p. 17-3.


- 56 -


_ __ ___I_ __









5 gallons per day for those carrying water into the home and 40 gallons
for those with complete water systems, the totals would be 2, 4 and
4. 7 billion gallons per year, respectively. Rural household use of
water in Kentucky then is estimated at 7. 1 billion gallons per year.

The table below reflects estimated use of water by livestock:


Number' Daily consumption Annual total
Kind 1954 (gallons each) (billions of gallons)
Horses 144,000 12 .6
Mules 122,000 12 .5
Cattle 1,880,000 12 8.2
Sheep 668,000 2 .5
Hogs 957,000 2 .7
Poultry 8,175,000 .05 2

Total 10.7

The 7. 1 billion gallons a year used in rural homes and the 10. 7
billion gallons a year consumed by livestock give an estimated domestic
use of 17. 8 billion gallons annually. As will be shown this amount con-
stitutes just over 10 percent of total water use in Kentucky.

Municipal Water Use

Urban life cannot exist except where adequate water resources of
satisfactory quality are available. Approximately 46 percent of Kentucky
citizens are now served by municipal water supply systems.

Per Capita Water Use

The per capital use of water distributed by municipal systems is
increasing. By 1945 the per capital average for the United States was 127
gallons per day. 4 The larger the city the greater the per capital demand.
The daily rate per person varied from 60 gallons in towns of 500 popula-
tion to 150 gallons in cities of 10,000 and over.


3. Department of Commerce, Statistical Abstract of the United States
(Washington: The Department, 1954), p. 701.
4. North Carolina Department of Conservation and Development.,et al.,
Water Resources of North Carolina, (Raleigh: The Department, 1955),
pp. 22-23.


- 57 -


_ _____._ ______~____ -1~----1~~~-1__1111-I~ _----- __









Reliable estimates indicate that the personal demands of the aver-
age city dweller may soon use 200 gallons of water a day. New York City
has reported over 150 gallons per capital daily use. Denver has reached
200 gallons, and Chicago has supplied 235 gallons a day per capital. As
will be shown, the equivalent rate for Kentucky last year was 77 gallons.

Municipal Water Shortages

In the summer of 1 53 water use was curtailed by cities in many
parts of the United States. About 25 percent of those served by public
water systems had their use of water curtailed sometime between Jan-
uary 1 and September 30, 1953. Kentuckians fared relatively well in this
respect, since only 2. 8 percent of those served by public water supplies
in the state experienced a water shortage.

Eleven Kentucky cities are reported as having water shortages dur-
ing that period. In three communities this shortage was the direct result
of drought. One city suffered from a supply failure and greatly increased
industrial use. The other 7 cities had shortages because of increased pop-
ulation and an unusual seasonal fluctuation in water use. In these 7 cases
the demand overtaxed either the treatment or distribution facilities of the
water system.

These facts indicate that to date the municipal water supply problem
in Kentucky is less critical than in many other areas of the nation. The
demands placed upon municipal systems, however, will almost certainly in-
crease in the years immediately ahead. Treatment and distribution systems
will require expansion, and some cities may have to exercise the right of
eminent domain to condemn and purchase new sources of water supply.

Volume of Municipal Pumpage

The United States Geological Survey in cooperation with the Agri-
cultural and Industrial Development Board collects data on municipal and
industrial pumpage of water in Kentucky. The 1955 estimates have been
made available for use in this study. 6


5. K. A. MacKichan and J. B. Graham, "Public Water-Supply Shortages,
1953, Supplement 3, Water Resources Review (Washington: Water Re-
sources Review, 1954), 8 pp.
6. G. E. Hendrickson, District Geologist, Ground Water Branch,
Water Resources Division, Geological Survey, United States Department
of the Interior, Louisville, letter to Phil M. Miles, Chief, Maps and Min-
erals Division, Agricultural and Industrial Development Board, Frankfort,
dated December 2, 1955.


- 58 -


~









Municipal pumpage for the year is estimated 82.2 billion
gallons. Surface sources provide 65.7 billion gallons of this total, and
16. 5 billion gallons is ground water.

Industry uses 43. 8 billion gallons of the total municipal pumpage,
and the remaining 38.4 billion gallons is used by private residents. Since
an estimated population of 1, 374, 700 is served by municipal water sys-
tems, the daily per capital consumption for personal demands in Kentucky
is about 77 gallons. When industrial use is included per capital. consump-
tion in Kentucky towns and cities is 164 gallons a day.

Industrial Water Use

Industry is a heavy user of water resources. The availability of
an adequate water supply meeting the quality requirements of the par-
ticular industry is a vital factor considered in locating new plants. Fail-
ure of water supply can halt operations of a factory just as surely as a
shortage of coal or raw materials. Industries must locate where water
supply is assured for the present and the future.

Types of Water Use in Industry

Almost all industrial water use falls into four categories: cooling,
processing, boiler feed, and sanitary and service purposes.

Many industrial processes require temperature reduction, and
water is usually the cheapest cooling medium. Such.water must be cool
and non-corrosive. A high degree of purity is seldom required. Ground
water is often preferred for cooling, since it is much cooler than surface
water in summer months.

Process water is that which actually comes in contact with the
product during manufacture. A great variation exists in the quality of
water required for this purpose. Water used in food products must be
bacteriologically safe and low in mineral content. Ground water is gen-
erally used for processing because of its more constant quality.

Steam is used in many types of manufacturing. Bbiler feed water
must be pure enough to avoid corrosion and rapid formation of boiler scale.
Generally speaking, if satisfactory water for boiler feed is not available,


7. North Carolina Department of Conservation and Development et al.,
Water Resources of North Carolina (Raleigh: The Department, 1955),
pp. 44-55.


-59-


____ _~1 ____~ __1_____~_ ~_~~1__11 _____ ~1_~_____~____1_1___II________________C1 --~1_____I1~-1~









an area is not suited for large-scale industrial development. Much steam
is used in paper manufacture, textile finishing, and chemical and food
production.

Water use for sanitary purposes includes that for drinking, show-
ers, and toilet facilities. Water of a quality suitable for domestic use
is required. Fire protection, cleaning and lawn sprinkling are service
uses of water in most plants.

Quantity of Industrial Requirements

Many industries require large quantities of water per unit of pro-
duction. The table on the opposite page illustrates the extent of water use in
some major Kentucky industries. The larger quantities in most cases
are based on the use of water in the cooling process.

Volume of Industrial Use in Kentucky

Industry in Kentucky pumped an estimated 62. 5 billion gallons of
water in 1955. Ground water sources accounted for 31. 9 billion gal-
lons of this total. The remaining 30. 6 billion gallons were surface water.

In addition industry used 43. 8 billion gallons of water pumped by
municipal systems. Total industrial use then was 106. 3 billion gallons,
or almost 65 percent of water use in Kentucky.

Irrigation

Kentucky now has about 1, 000 irrigation systems. 9 Each system
irrigates an average of 20 acres. In addition, about 1, 000 acres are
irrigated on a custom or rental basis. About 21, 000 acres, therefore,
are being irrigated in the state.

An estimated 3 inches of water per acre is used each year. When
evaporation and other losses are taken into account, about 30, 000 gallons


8. G. E. Hendrickson, District Geologist, Ground Water Branch, Water
Resources Division, Geological Survey, United States Department of the
Interior, Louisville, letter to Phil M. Miles, Chief, Maps and Minerals
Division, Agricultural and Industrial Development Board, Frankfort,
dated December 2, 1955.
9. Letter from Stephen Q. Allen, Extension Specialist in Farm Manage-
ment, University of Kentucky, Lexington, to Charles Wheeler, Novem-
ber 22, 1955.


- 60 -









INDUSTRIAL REQUIREMENTS FOR WATER
Water Required
Product Unit Produced (gallons per unit)
Brewing
Beer Barrel 470
Whiskey Gallon 80


Buildings
Office
Hospital
Hotels
Laundries
Commercial
Institutional

Cement

Coke

Meat
Packing House
Slaughterhouse
Stockyards
Poultry

Milk
Receiving Station
Bottling works
Cheese Factory
Condensery
Creamery
Dry milk factory
General dairy

Oil refining


Person
Bed
Guest Room

Pound of "work"
Pound of "work"

Ton

100 tons


100 hogs killed
100 hogs killed
Acre
100 pounds live weight


1,000
1,000
1,000
1,000
1,000
1,000
1,000


pounds
pounds
pounds
pounds
pounds
pounds
pounds


raw
raw
raw
raw
raw
raw
raw


27-45 (per day)
135-350 (per day)
300-525 (per day)

4. 3-5.7
3

750

360,000


550
550
160
2,200


180
250
200
150
110
150
340

77,000


milk
milk
milk
milk
milk
milk
milk


100 barrels


Soap factories

Soft drinks

Steam power

Tanning
Vegetable
Chrome

Rayon hosiery

Synthetic rubber


Ton


Case


Ton of coal


100 pounds raw hide
100 pounds raw hide

1,000 pounds produced

Ton


500

2.5


60,000-120, 000


800
800

9,000

600,000


- 61 -


F-


_ ______.___ __1_1 _______ _IIX__1__11____1__~ ________~_~___~ _~_~II____ __









of water are needed to put on an acre-inch. On this basis each acre ir-
rigated requires about 90, 000 gallons of water per year. The total water
use for irrigation in Kentucky then would approximate 1, 890, 000, 000
gallons per year at present.

An estimated 50 percent of this amount comes from farm reser-
voirs or ponds. About 40 percent is pumped from streams, and 10 percent
is ground water.

Recent Expansion of Irrigation

Irrigation on this scale is a recent development in Kentucky. In
1950 between 25 and 50 systems were operating in the state. These sys-
tems were owned largely by vegetable growers in the Louisville and
Cincinnati areas. In 1951 about 100 systems were purchased to irrigate
tobacco and other crops.

Economics of Irrigation

Experience has shown that any crop with a high cash value per
acre and which is grown on fertile soil can be irrigated profitably. In
Kentucky the following long-time average yield increases may be ex-
pected:10

Tobacco 250 pounds per acre and $4. 00 per 100
pounds increase in price.
Corn 20 bushels per acre.
Pasture Increase carrying capacity by one-third.
Alfalfa hay About one ton per acre.

An irrigation system is costly, however, and the farmer should
establish clearly in his own mind the need for such a system before its
purchase. Several principles of agricultural economics deserve con-
sideration in this regard.

Most farmers have limited capital and must decide what invest:-
ment will produce the greatest return. The best return from irrigation
may be expected on fertile, well-developed farms with adequate build-
ings and machinery. Those with relatively unimproved farms may find
that fertilizer, improved seed, better livestock, pasture renovation and
better equipment will provide a greater return than irrigation.


10. Stephen Q. Allen, "Economic Guide Posts" (Lexington: College
of Agriculture, University of Kentucky, 1954).


- 62 -


I









Irrigation is not a substitute for good farming practices. It com-
plements other improved practices and makes them more profitable.

The farmer should determine the long-time effect of drought on
his farming operation. He should estimate the increased yields to be ex-
pected from supplemental irrigation. If the value of increased production
over the life of the system exceeds costs of installation and operation, then
the system would be profitable.

Other improved practices will also reduce the effect of drought.
The farmer should consider the alternatives of using more fertilizer, con-
structing terraces and diversion ditches, contour planting, increasing
water-holding capacity of the soil, or reducing livestock numbers to what
his farm will carry in an average year. Like irrigation, all of these
practices increase costs of production. The farmer should carefully con-
sider which alternatives will give him the greatest return for the invest-
ment and costs involved.

Summary

The major uses of water are for domestic purposes, municipal
supply, industry, irrigation, hydroelectric power, and recreation. Social
and economic progress has greatly increased water demands for each of
these uses.

Many uses of water, however, involve little or no reduction in
available supply. More than 90 percent of the water withdrawn by mu-
nicipal and industrial users is returned to streams, lakes or recharge
wells. 11 Where pollution is effectively controlled, such water is avail-
able for reuse several times. In contrast, not more than 30 percent of
irrigation water is available for reuse in the immediate area.

The table on page 64 summarizes estimated water use in Ken-
tucky in 1955. Total withdrawals are estimated at 164. 4 billion gal-
lons. Impressive though this quantity of water may be it represents
less than 1.5 percent of the average annual supply in Kentucky, This
fact again emphasizes the importance of conservation measures to make
water supply available where and when it is needed.


11. Arthur M. Piper, "The Nation-Wide Water Situation" in Subsur-
face Facilities of Water Management And Patterns of Supply Type
Area Studies, IV (Washington: House Interior and Insular Affairs Com-
mittee, United States Congress, 1953), p. 1.


- 63 -


_ _1_1__ ~____1________ _______I___I~1_ P~_ __C________I_________ ___~____~_____ ~__ ~~










KENTUCKY ESTIMATED ANNUAL WATER
(in billions of gallons)


Use
Municipal Pumpage
Used by individuals
Used by industry

Industrial Pumpage
Used, by manufacturing industries
Used by non-manufacturing industries

Domestic Purposes
Used in homes
Used for livestock

Irrigation


Total


USE, 1955


Billions of gallons


38.4
43.8


59.1
3.4


7.1
10.7

1.9


164.4


- 64 -


--


-









IV. ALTERNATIVE LEGAL APPROACHES


Two distinct systems of water law prevail in the United States.
These systems appear to have arisen out of basic differences between
physical and human relationships in the two areas.

The thirty-one eastern states, including Kentucky, follow the ri-
parian rights doctrine. This eastern area is normally one of excess
water but also suffers at tImeis Ti r conditog f tag This doctrine
emphasizes the right o'water use in -ft-
tions on amount, exce that the right of use is e-
tEde on owner These eastern
es Ageneral, o ve state-wide administrative agencies reg-
lating water development and use.
R" -T -- "---- --'-
The seventeen western states adhere to the prior appropriation
doctrine. These states are characterized by water shortage but at times
may have an excess. The appropriation doctrine gives an exclusive right
to use a specified amount of water at a specific time and place, without
the requirement that the use be on riparian land. State-wide administra-
tion of water use and development is the rule in this area.

The riparian system of water rights seems to have had its in-
ception in continental Europe where the supply of water was commonly in
excess of requirements. The prior appropriation system on the other
hand developed in the complex economy of artificial uses and water short-
age in the western states.

Development of the Riparian Rights Doctrine

The English common law was in effect in the original thirteen col-
onies before the Revolution. The common law, however, included no well-
defined system of water rights at that time.


1. This chapter is based largely on the following authorities:

C. E. Busby, "American Water Rights Law" in The South Carolina
Law Quarterly, December, 1952, pp. 106-129.
C. E. Busby, The Beneficial Use of Water in South Carolina
(Spartanburg: South Carolina Soil Conservation Committee, 1953).
Ohio Legislative Service Commission, Water Rights in Ohio
(Columbus: The Commission, 1955).
North Carolina Department of Conservation and Development,
Water Resources of North Carolina (Raleigh: The Department, 1955),
Chapter XVII.


- 65 -


r ____ II ~__ ___~___I _~~ 1~11__ ___ I_ ~ _1__ ___ ---------~l-~-PIIII1~- ~I-- -X ------- -_-- 11- -111- -- -









Early English law recognized an established use of water, not
as a property right but as a form of pleading in water controversies.
Wrongful diversion of water from one who had long enjoyed its use could
be attacked as a nuisance, or, later, as trespass.

The recognition of established uses of water appears to have in-
fluenced Blackstone. He outlined two broad principles. 2 The first was
based on long use of and access to a stream. This first principle was
not unlike the later doctrine of riparian rights, although it did not em-
phasize use in common or ownership of riparian lands. His second
principle was priority of use as a limitation on the first rule. The sec-
ond principle was accepted by English courts as the doctrine of prior
occupancy as late as 1831.

The doctrine of prior occupancy could have developed into an
appropriative system not unlike that in the Western states. It was based
on an exclusive right by reason of prior occupancy, rather than a right in
common. The American andFzench revolutions, however, placed a
special emphasis on the common o m n pluenced
water rights law. --- --

In 1804 the Code Napoleon was proclaimed in France. The riparian
rights doctrine is based upon Article 644 of the Code Napoleon:

He whose property borders on a running waterco e,
other thaHiT- wlnc It'sdeckare n appurtenance of the
public domainTh-y-'rtCle 538 under the titTeof Classifica-
tir-fo- i.gs,n n ay supply himself from itinitEpaga
fo6r Yer.gaeooi roperties. He whose estate such
water to use it within the spa hei h
it crosses, but _cndit on of restoring it, at it
ure from his land, to its o.

This principle, in turn, had been developed from the Roman civil law.

The Code Napoleon was adopted in Louisiana in 1812. Both in
America and France the revolutionary spirit was running high in its em-
phasis on liberty, equality and fraternity. The cases construing the Code
with respect to water policy insisted upon the absolute equality of rights in
this regard.


2. 2 Blackstone's Commentaries 403; 3 Blackstone's Commentaries
Z218.
3. Liggins v. Inge, 7 Bing. 682, 893, 131 Eng. Rep. 263.


- 66 -









In practice, however, this approach presented difficulty. If
every owner had equal rights to the waters of a stream, no one could
uIe itIf e lowermOBs own "~~ter ieam demanded the undiminished
flow, none of the other owners could use any of the water. The lower
owner d nt even T av--eToE-i e water-Th order r Eonainliffhis riht.
iecould simly de nd tha teiundiminished flow come past his lands.

--- This problem was recognized by Justice Joseph Story of the United
States Supreme Court and Chancellor James Kent of the New York Court,
who developed the French rule beyond its early construction. Justice
Story used the word "riparian" for the first time in Tyler v. W
in 1827. Kent's detailed statements on the riparian doctrine came in
1828. In developing his doctrine, Kent quoted from most of the civil law
sources available to him including the Code Napoleon, the Institutes of
Justinian and the works of Pothier. 5

The riparian principles of Story and Kent began to appear in
English decisions in 1849. In the key case, Wood v. Waud, the English
Court drew freely upon the views of the two American jurists. This case
has been cited ever since in American courts as authority on riparian law.
This construction of the riparian doctrine has been summarized by Busby:7

One who owned lands touching upon a stream was en-
titled to have the full flow of the stream come by his place
undiminished in quantity and unimpaired in quality (Code
Napoleon), except that each landowner was entitled to make
reasonable use of the water upon his own lands, provided:
(1) that he returned the s tre t l nel before
it left his lands, so as not to deprive succeeding lower ri-
parian owners of their rights, and (2) that use on his own
land was reasonable in respect to the corresponding rights
of other riparian owners lying below him (rule of reasonable
use).

This principle of law is still the rule in the thirty-one riparian rights
doctrine states.


4. 4 Mason 397, Fed Case No. 14,312.
5. 3 Kent's Commentaries 353, 355.
6. 3 Exch. 748, 154 Eng Rep. 1047.
7. C. E. Busby, "Water Rights and Our Expanding Economy" in
Journal of Soil and Water Conservation, March, 1954, p. 68.


- 67 -


_ ~_~_____1~ 11_1___ ____ _I____jlls__________I~--- --I1----.-I___II- --~ ~---









Origin of the Appropriation Doctrine


The appropriation doctrine of water rights appears to have had
its origin in the mining camps of the western states. The early un-
written law with respect to gold and silver "finds" was quite similar
to present water law in the west. The rule was that he who discovered
valuable minerals had the benefit of his labor, if he developed the claim
in a reasonable time and continued to work it diligently. If he failed
to work his claim diligently, then his right was forfeited. The same
principle was applied to water rights.

As the western territories became states, some of them specif-
ica ly repudiated riparian rights in their constitutions. Other western
states adopted mixed systems of riparian and appropriative rights.

The doctrine of prior appropriation is defined in the Report of
the President's Water Resources Policy Commission as follows:

The appropriation doctrine.. rests on the proposi-
tion that beneficial use of water is the basis, measure and
limit of the appropriative right. The first ir timn P4 p-~
in right. Perfected o b use he ri tis lost by aban-
dM .ent An a.ppro priatiye water ihis no r ied
byownership of riparian lands.... Its existence and rela-
ltonship to other rights on the same stream are
i 7erifs of time of initiation of the rightby start oftie
work to divert water coupled with an intent to make bene-
ficial use of it and the~ dilgenc-with whiTe~rppropr6-iator
prosecutes to completion his diversion works and actually
applies the water to beneficial use.

This statement describes in general water law in thee een western
states, although details vary widely from one state to another.

Statutory Water Law in Appropriation States

Of the seventeen western states, eight have appropriation exclu-
sively. The other nine states have combinations of riparia rights and
appropriation law.n Arona. Colorado, Idaho, Montana, Nevada, New
Mexico, Ui;-f iand Wyomingappropriation law is exclusive. Several state
laws are described below to illustrate significant provisions.


8. Report of the President's Water Resources Policy Commission,
Vol. III, Water Resources Law, p. 156 ff.


- 68 -









Exclusive Appropriation States


The Arizona Constitution expressly repudiates the riparian
rights doctrine. The legislature has enacted a comprehensive water
code which is administered by the Office of the State Land Commissioner.
The water code gives the following priority to water uses: (1) domestic
uses, (2) municipal uses, and (3) irrigation. The commissioner is given
authority to establish water districts and appoint a commission for each.
The commission makes rules and regulations to implement the code and has
quasi-judicial power to interpret and make conclusions of law. Water
proceedings originating in the courts are first referred to the administra-
tive body for decision.

Each person wishing to appropriate water must apply to the com-
missioner. When all requirements are met, a certificate of appropriation
is issued. The resulting right is lost when it is not exercised for five suc-
cessive years.

In Colorado responsibility for administering the water law is vested
in the state engineer. He can make and enforce rules, but adjudication is
handled solely by the courts. The constitution establishes the following
priority of water uses: (1) domestic, (2) agricultural, and (3) manufac-
turing.

Under the Idaho Constitution priority of appropriation gives the
prevailing right, except that domestic uses take priority over all others
in times of shortage. The Department of Reclamation executes the water
law. The appropriator may gain a constitutional right simply by divert-
ing water and putting it to beneficial use. A statutory procedure is also
provided for acquiring a water right through application to the depart-
ment. The latter procedure has the advantage that the effective date of
the right is the date of application, while under the constitutional method
priority of right does not begin to run until the actual diversion of water.

Montana is unique in that it has no' centr_.al t-atpe aninisgra-
tion of water use. The water law is enforced and administered by the
county c.oUts. If no de t r xinjati6n of rights has begin miiadeSiy the court
w i'jresprect to vetreatm, the appropriator merely files notice
with the county court and div-ertsthe water. If such a dete1fmirrnltrhas
beemaeenmadethen the appicani must ire an engineer to survey his pro-
posed diversion site and its relation to other appropriators, so that the
county court may determine his right. After weighing the facts the court
approves or rejects his application. Rights are lost only by abandon-
ment.


- 69 -


__ ._ ~____ _~__________~__I_______~~____1__11~__1_









States With Mixed Rights


In California, Kansas, Nebraska, North Dakota, Oklahoma,
Oregon, SoEfD~a0Rota, Texas, and Washington the doctrine of riparian
right-swas first recognizednd that of appropriation superimposed at
a later date.

Under ".alifornia law only water on public lands and the lmnus
from private lands is available for appropriation. Re o zed rpa
ua&mlb both reasonable an beneparian rights may be
lqAti through prescription. "..

In N br .eS Supreme Court has ruled that, unless a riparian
owner is making tual use of water and has proof of that fact, Hie cannot
prevent appropriation. -His only recourse is to seek dam~ag.Irom the
ap.rqoprfiator.

Regarding North Dakota, the United States Supreme Court has
held that the riparian rights doctrine is the -aw-of-hre--s ae. E
of appropriation is maintained, however, under a constiltuiopal provi-
sion that all flowing streams anridnatural watercourses shall forever_
remain the property of the state for mining, irrig"ting, and manufactur-
ing purposes. N6'ca-eshi~xvari1sennwhich fully test the relative strength
of the two systems.

The situation in Oklahoma is similar to that in North Dakota.
South Dakota also falls into this classification, since both North Dakota
and South Dakota have a common background in the legal system of the
Territory of the Dakotas before its division into states.

I Tas rirarn ahts 1reva over a. ro riative rights. The
language of the apopr nation statuteshas always protected te riparian
owner.

The Washington appropriation statutes apply only to waters flow-
ing through public lands. Vested ripariani ghts are protected by law.

In Oregon the end th legislation and judicial decision has
been to reduce the impo nce of riparian rigs in avor of appropria-
own e fd W r te whidic tne can
put tobenecial use. The ziparian.owner may eec o clm either as a
riparian- Tbn-g aprpTiator t- a The 1Code
terminated ri arian en being used or ca able of
ona e time by means of works then under construction.


- 70 -









These examples illustrate the difficulties arising from co-
existence of the two types of water rights. In no state are the two sys- /
teams co-equal. The relative strength of the opposing righiti1 comes V
a matter of judicial interpretation Inseveral states, fte7 staiu-of
rights is unclear, because few test cases have'-b-eei-fbefore-the--eurts.

Possible Application of Appropriation Doctrine in Kentucky

The growing problem of supplemental irrigation has furnished
the primary motivation for proposing changes in water law in Kentucky
and the other eastern stares. Irrigation is a highly consumptive water
use,.. As has been shown, about two-thirds of the water apple
is not returned to local water supplies. In contrast, over 9_ pp ritrU
the water used by industry and ciie is rturnede to streams, taes, or
reCEha gr r --or-onro6i' sniiT''iIrf iI- ar tuto c on-
flicts with other riparian owners, because natural supply is very low
Sw en irrigation is needed,

Ciies can resort to eminent domain to condemn a source of water
supply. "Ins tries an landona suitable water source and
make reasonable use of the water. The primary need of industries and
cities would appear to be protection against conflicting consumptive uses
by others.

Those advocating a shift to the appropriation doctrine in Ken-
tucky anvo ho. -th Ta xafytjdrt1h #. the right of reasonable
use, rather than of a ecific oo uncertain ii o justify con-
sidl e investment in egujment fr. aconsumptive use such as ir-
r igion. under appropriation non-riparian owners also would be
entitled to use water. Each user would know the exact quantity of wa-
ter he could use i periods o~ fiiitSpIy'tnfte number oiap rp
riators having prior claims in periods of short pply_.He.could,
accor ingly, judg fcnt~.risk involved in the insta-a.tion of any
given water-using equipment.

A number of questions must be raised, however, regarding the
possible application of the appropriation doctrine in Kentucky.. Maruis,
in the article cited on page 14, has presented these issues in a thought-
provoking manner.

S In f he 17 apprr contrast, o lat.. 9 r. a- wa-er-
use is for Ir-rgij P In .contrast, __ly.li-l <"' 1 P-. L!-ater


states. Supplemental irrigation probably will never


- 71 -


_~^____ _____1_1__~1__ ________ ___~_____~_l____fl___I________________


I










prove profitable in the humid eastern states except for intensively
farme crops of hh cash value.

ppropiation has not solved the water problemsof fwt.i r
states. I ac t gurnt water problem he West are tremendous.
T-e effect of water law in the'West ha sert'o-fe ep,%ewater use in favor
or irrigators.

The 1952 report of The President's Materials Iblicy Commis-
sion sets forth that group's conclusion with regard to water law in
the western states in strong terms:9

Except for the Pacific Northwest, most of the
economically avaiable water athe Western Statesis
altocardfur iiittlit:rowa available far-targe
industrial requirements without cost acquisition offarm
rights and properties.... The West has gotten only a
small percentage of existing industries, and may get an
even smaller proportion of future expansion unless large
quantities of cheap water can be made available for manu-
facturing and other industrial uses. There is probably only
oner mero by which this can be accomTpisnhe dcurtamIng
a part o existing irrigation or plans for new irrigation
when inedustriaI e-ds'enveloed.s W-e-Tnde -
cide whether its future must be sacrificed by its antiqua-
ted 'prTo6rties system in water use.

This finding would seem to indicate some caution in considering a shift
to appropriation of water in the eastern s. In the West, the lack
of iexibi industrial
development which is one of thepresent major goals of the southeast-


As has been shown, termination of unused riparian rights in Ken-
ucky would raise grave constitutional questions. Those who were di-
ested of such unused riparian rights would almost certainly have to be
compensated by the state. Only in the face of some impelling necessity
would the General Assembl B acted to direct such action.


9. President's Materials Policy Commission, Resources for Freedom
(Washington: The Committee, 1952), pp. 86, 90, 94.


- 72 -









Conclusions

The Kentucky Court of Appeals committed the Commonwealth
to the riparian rights doctrine as early as 1887. The first legislative
statement of general water policy, however, was when the General
Assembly in its 1954 session passed House bill 497.

The 1954 enactment is a classic statement of the reasonable use
theory of riparian rights. The new law is in accord with the doctrine
developed by the Court of Appeals, but also clarifies points which had
never been presented to the court.

In application "reasonable use" is determined by a court or jury
on the basis of statutory and Common Law standards. The Kentucky
statute provides a basis for the most liberal judicial intePr r MO of
rS i7Able uS e. No aajo cases g adju dication of rights under
th"'e e954"T~Wave been before the courts. The absence of such cases is
an indication that water users have been able to determine their rights
under the statute without resort to the courts.

Existing case law offers no bar to the Court of Appeals uphold-
ing a liberal interpretation of reasonable use when the issue finally is
presented. Such a ruling would dispose of some of the major objec-
tions to riparian rights presented by advocates of appropriation.

Liberal Interpretation of Reasonable Use

As described in Chapter 1, the fundamental right of the riparian
owner is only to be free from unreasonable interfereA t with-
hisusei of wa er.-Wat M p-r vrai-iIged so
long as it does not interfere with reason perl -.r
ian--oii therefore, is nio- jure until unreasonable interference
actually occurs, so p"- cnpton'doesrot egItn "orn agi nst.him until.
taMt time.-

-) Under such liberal interpretation riparian rights are freely
severable rm the land andmay be transferred tononriparians.^ This
p o oii-ity oturchasing water rights expe uesiife of water on non-
riparianlands.

Making Water Rights More Certain

No ap li~tion of the riparian doctrine can be as certain as the
appropriation of a fixed r ae.. The- l
if evtrTrToweer m-ateTsmgbmeopre certain in any one of sev-
eral ways.


- 73 -


__ ~_~_____ ~_~____ ___ _____1_________1___1__l_____l_______~~ _________1__~__


~










Eminent Domain. T&_power of eminent domain might be exercised
in behalf of those who require a more certain location o wafrt
is pogible -dier riparian rigs. Eminent domain, however, has been
strictly construed by the Kentucky Court of Appeals. The cases cited
on pages 17 and 18, supra, would indicate that eminent domain could
be extended only to enable the citizen to perform a public duty or ser- Q
vice or to acquire a property in which the public would have a right of
use.

Permits. North Carolina has recently ar ,otA a 1, pohibiting sub-
stantial withdrawals of water for rriatign withwit fir nbtn
penauit.1 Such a A^Loer ustxs from excessive with-
drawals for irrigation. The law alsoprovides a method for achieving
equity between coiet i ators. Flexibility in operations is i -
taed through conditions and limitations on the permits, and-at-the-e~me
time some protection is afforded to the irrigator who invests in equlp-
._. ___;~--__ ______-____---1"- ----, .neq ip~.- *-., .. ..,. -,a" i-


The effective adrnirtrai-r. nf p-crmPt yp, inle a
great deal of policing and supervision. The machinery to accomplish
can Se '"''" .

The California System. As has been noted, California law recognizes
both riparian and appropriative rights. Riparian rights are preserved
to the extent that they can evP t. -^-- P-a



This plan does not divest riparian rights. At the same time it
gives some degree of ceit to appropriators of water in excess of
riparian us. the ntpla- i -feiaqui
administrative and enforcement staff to execute the law.

The Legislative Policy Question

Less than 1. 5 percent of the available average annual waters sup-
ply is used in Kentucky. The remaindT"rF' stream runoff or recharges
ground water.

The rights of domestic users are guaranteed under the riparian
rights doctrine. Municipalities can exercise the right of eminent do-
main to condemn and pay for a water supply. Indust rdinaril
lishes itself where water supply is sufficient to meet its needs.


10. North Carolina General Statutes, sec. 113-8. 1 (1952)
10. North Carolina General Statutes, sec. 113-8. 1 (195Z)


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r









Only a little over 1 percent of present water use in Kentucky
is for irrigation. About 1, 000 irrigation systems are in operation.
Water conflicts of grave local importance have occurred on small
streams where irrigation depleted the limited natural supply of water
during the dry summer months.

Future expansion of irrigation in Kentucky cannot be predicted
with certainty. Economic factors, however, would appear to limit
profitable irrigation to crops of high cash value which are grown on a
small area. About half of the water now used for irrigation in the state
comes from ponds and reservoirs.

The 1954 statement of water policy passed by the General Assem-
bly emphasizes the right of riparian owners toqimpound surplus water
in~pfertods heavy stream flow. Irriators can acquire a reliable source
of supply in this manner. In fact, about half of them already use this ap-
proach.

Based on their interpretation of these facts the General Assembly
could:

1. Leave the state's basic WaA 1 lin its present form. In
that event, irrlg-a'tors could either depend on a reasonable share of the
natural flow which is ineY ... ...-. flow
for later use in drought periods.
2. without changing the basic water law, require permits for
irri ators. This T~p"lan ffiintrWeTdomireis 'acaziad established u s. At
t REtimi e a basis would be provided to safeguard the investment of
one irrigator aga-in~i others subseciuently-developing- irrigation works.
Such a plan wou-id..i ipear to be a proper regulation of private rights in
the public interest. Administrative machinery would be required to put
this system into effect. .
-------Adopt the appropriation doctrine, ofwater-law, which would
almost certa tiyinvrolve-the state's paying riparian owners for the unused
rights of which they were divested.

No one of these alternatives will increase total available water
supply. When the ribiount of water available is inadequate, allusers must
accept a reductTon in -e amoiun ifey-t'e, or some must be depve d6f'
waettaitgetEe. The goal of the GeneraiT sembly istoprevent wst
andpromote the most desirable uses of water, both for today and for
TuturTe'--eveloepmeint of iihe state.


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