This study discusses navigability concepts, consumptive rights to surface and ground waters, the disposal of diffused surface waters and the administration of Kentucky's statutory water allocation system.
Federal regulatory powers are based on navigability as is state ownership of submerged lands. Kentucky uses the ebb-and-flow test of navigability to determine title to submerged lands but uses a navigability-in-fact test to determine the scope of state regulatory authority. Consumptive uses of water in Kentucky are governed by the riparian landowner to use as much water as he needs as long as his use does not interfere with the legitimate uses of other riparians. Underground streams are subject to the same consumptive use rules, but an overlying landowner can use as much percolating ground water as he needs even though other users are harmed. Kentucky follows the civil law rule with respect to the disposal of diffused surface water, but recent cases seem to have applied the more modern reasonable use rule.
In addition to these common-law rules, the Department for Natural Resources and Environmental Protection, under the provisions of KRS Chapter 151, administers a permit system under which both riparian and nonriparian users are allowed to make beneficial uses of water. The permit system, however, is not particularly comprehensive, and is subject to various criticisms.
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The work on which this report is based was supported in part by funds provided by the Office of Water Research and Technology; United States Department of the Interior, as authorized under the Water Resources Research Act of 1964.
Ausness, Richard C. and Flynn, Bill H., "The Law of Water Allocation in Kentucky" (1975). KWRRI Research Reports. 113.