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Show KENTUCKY 339 b. RIGHTS ACQUIRED BY STATUTE The Water Kesources Act adopted in 1966 provides that before a user shall have the right to divert public water, he must obtain a permit from the Division of Water. However, no permit is required for the use of water for agricultural and domestic purposes, includ- ing irrigation. Nor is a permit required for the customary use of water in manufacturing operations or for use in industrial processing or manufacturing, provided the water is returned to the stream in substantially the same quantity and quality as when withdrawn, or for water injected underground for the production of oil and gas.31 The permit shall be specific in terms of quantity, time, place, and rate of diversion. A permit shall be issued if it is determined by the Division that the proposed use of water will not be detrimental to the public interests or rights of other public water users. If water is available, no permit shall be denied to a responsible appli- cant who has established a need for a useful purpose, but a permit may be issued for less water than applied for. A permit represents a limited right of use and does not vest ownership of the water in the user.32 Provision is made for notice and hearing prior to denial of a permit, or prior to issuance of a permit for an amount less than applied for. Any party aggrieved by a final order of the Division may seek judicial review. However, if supported by substantial evi- dence, the findings of fact of the Division are deemed conclusive.33 A record must be kept of water withdrawn under permit, and reports of water use must be filed with the Division. The Division may allocate water among permit holders in time of drought or emergency.34 3.2 Nature and Limit of Rights a. BASIS OF THE RIGHT Many of the features concerning the nature of the riparian water right under Kentucky law have been discussed by the court in language sometimes suggesting "natural flow" rights, but perhaps more often-and certainly more realistically-in language demon- strating reasonable use and its limitations. In discussing those cases, it is important to bear in mind that Kentucky now has the statutory permit system discussed above. The rule allowing riparian owners the right to supply their natural demands, even to the extent of materially diminishing the flow of the stream, and to also make use of water for secondary purposes which do not materially affect the quantity or quality of the stream, is usually characterized as the natural flow theory of riparian rights, as opposed to the reasonable use theory. The latter recognizes reasonable use by all riparians and each is entitled to be free from unreasonable interference by^ others with his use of the water. The Kentucky Court, while stating that the natural flow si Ky. Rev. Stat., sec. 151.140. 32 Ky. Rev. Stat, see. 151.170. 33 Ky. Rev. Stat., sec. 151.180. s* Ky. Rev. Stat., sees. 151,160 and 151.200. 499-242-73------23 |
