I've posted a little bit about this before, here's the whole story. Kind of complicated, but interesting.
In 1964 the Corps impounded Barkley Lake with the just completed construction of Barkley Dam on the Cumberland River. The stated purposes of the dam were for flood control, electric generation, and navigation. They purchased in fee up to the 367 contour for the length of the lake, and purchased a flowage easement up to elevation 378. On tributaries flowing into the Cumberland, they only purchased properties where the 359 contour (normal summer pool) would extend outside the banks of the tributary. Upstream of that, they only purchased the flowage easements up to 378, even though there was property below their typical buy line of 367. They can still flood it, but don't own it, and it's not flooded at normal summer pool. Normal winter pool is 354, and I have never seen the lake lower than that. So the crucial levels are:
378 - Flowage Easement
367 - Corps Fee Line on Main Lake
359 - Normal Summer Pool
354 - Normal Winter Pool
I own the first piece of property on one of the tributaries that the Corps did not buy. They have a flowage easement across it. The creek begins approximately 8 miles upstream of my property and is a spring fed (multiple springs) flowing stream year round with a measured flow in dry times of about 15,000 gallons per minute. A group of local farmers, including me, would like to put a pump station on my property on the creek to withdraw water for crop irrigation upstream in the watershed of the creek. It would have the capacity to pump up to 5000 gpm during crop season (normally June-Sept). The only practical site for the pump station would be between the horizontal locations where 354 winter pool and 359 summer pool back up through the creek channel. The bottom of the creek there is about 351.5, so there is always at least 2.5 feet of water depth at this spot. Plus, since this is virtually the end of the creek, water withdrawal there would have no effect on any landowners upstream. (As a side note, my property goes to the far bank of the creek, because of some case back in the 30's where it was deeded over by the owner across the creek to settle some dispute.)
Since it would be in the Corps flowage easement, we have applied for a permit to construct the pump station and lay underground pipeline. We've jumped through all the hoops they have required (archaelogical study, wetland delineation, endangered species id, etc.). No problems with any of those. However, now the Corps indicates they may have a problem with any water withdrawal below summer pool at 359. They say they have no authority to prevent it above 359, that would be under the Ky. Division of Water because at that point is is always a flowing stream. Division of Water says that withdrawal from flowing streams for ag purposes in Ky. is exempt from the normal regulations. The problem is that the only time water is at 359 at the site is when the Corps has it backed up to that level, normally from May 1 to July 1, then dropped down to winter pool by December 1. This varies depending on rainfall, this year it's dry and is currently at 356, and has yet to reach 359.
Question is, at what point did the Corps take the rights to the use of the water that the Division of Water would allow if the lake was not there? The easement option for the property that was exercised back in the late 50's calls for an Easement:
"permanently to overflow, flood, and submerge" any part of that lying below 359 (summer pool), together with the right to "occasionally flood that part above 359". No mention of conveying anything else. The last part of the option says "RESERVING, however, to the Vendor, his heirs, and assigns, ALL SUCH RIGHTS AND PRIVELEGES as may be used and enjoyed without interfering with or abridging the rights and easements to be conveyed."
If they hold that they can prevent water withdrawal below 359, this property and the one on the opposite side of the creek would be the only ones on this stream deprived of the water. The bottom of the creek on the other upstream properties is above 359, so they have water year round. I could go along with 354, which is maintained year round, but I would question 359.
They may still approve it, they are still thinking about it. If not, I think there is a case to be made that they only purchased an easement to flood the property and did not take away the use of whatever water is in the creek. They are saying they have to maintain the original purposes for the impoundment, navigation, electic generation, and flood control. Since they only maintain 359 for a couple of months/year, none of those seem to require 359. They do allow withdrawal for industries and municipalities, our county water comes out of it.
I know, the Corps can do whatever they want. However, that doesn't necessarily mean they would be right. This is a multi-million dollar project if it can happen, so some amount of arguement will be warranted should they first deny the permit. Anybody have any similar circumstances? I suspect not, since it seems to be an odd one for the Corps as well.
I'm quite up on western water law (appropriation) but not so much on eastern (riparian). It's sounds like under Kentucky law you have the right to use the stream. The easement seems to be to flood to the elevation and I don't see anything about restricting your riparian rights to maintain the elevation of their reservoir.
Is their concern that your water use will interfere with their ability to keep their reservoir up to elevation 354. If that is the case then they'd need to restrict all use from the stream instead of just your use (like western water law). I'd try and find out what their real concern is. I'd probably get the states interest in defending state rights against federal rights. Then it would be just like here in the west, state/federal at each other all the time.
You could always move your diversion point upstream far enough to get above stream bed 359. Then see what they say.
There may be some downstream water rights holders that the USACE must honor and to do so the elevation of the pool must be maintained. You did not mention any established downstream rights that your taking of water might effect, you only noted the upstream owners and did not say if all of that water historically flowing downstream is already claimed by others. The water you see may be only passing through the dam for others to use, there may an obligation to let it flow out the spillway and your taking will have an adverse effect on those prior rights. Late comers seldom get water from a long established source unless they buy the lands that have established rights to that water.
jud
I don't think Kentucky has water rights like here in the west. Riparian landowners have a right to use the stream although there probably is a limitation as to not harm other uses downstream.
Here in the west it's first in time - first in use and you have water rights established on that basis (western water rights are considered real property). It's very regulated and water is more valuable than land.
I'd expect as time passes that more of the eastern US will become more like the west as water gets more and more scarce.
A little more info for context...
The Corps has told us their concern would only be with the pool, and then for the purpose of hydro power. Barkley Lake covers 57,900 acres at summer pool. It's 134 miles long, with 1004 miles of shoreline. Every time a boat locks through, 37,500,000 gallons of water also go through. When only 1 of the 4 generators is operating, 6500 cubic feet per second are flowing thru it (slightly less than 3 million gallons/minute). In addition, Barkley Lake is connected directly to Ky. Lake, formed by Ky. Dam on the Tennessee River, by a 400 ft. wide open canal a couple of miles upstream of each dam. Ky. Lake covers 160,300 acres, and is 184 miles long. The minutia of withdrawing 5000 gpm intermittently from a tributary over 4 months of growing season, is staggering compared to that.
This is Barkley Dam
This is Ky. Dam.
That flowage easement has always read as a very limited rights on the properties around the lake to me.
I am always surprised at the number of people who think that they have severally limited usage rights, beyond the easement language. Some people are actually concerned about maintaining their property below 378 based on hearing from someone else the 'problems' with the COE that could arise.
It will be interesting to see how this shakes out.
A little more info for context...
I thought that was where you were talking about. You are correct. What you want to do is incredibly minor in the big scheme of things.
Problem with that is....
Somebody else owns that property, so it is not immediately available.
The Corps owns in fee simple everything downstream of this property. This is the first property they didn't buy on this tributary.
A little more info for context...
Yeah, I can understand the non effect of your 5000 gpm.
In Utah you would need a water right to withdraw 10 gpm from Lake Powell. Just because a river flows by your property doesn't mean you have the right to use one drop. An illegal diversion of water (even 1 gpm) could result in fines into the thousands of dollars per day. Some of the biggest fights you can imagine result over water. There has been people killed. Some developers (even cities) will buy farms just to get the water rights to use somewhere else.
Ain't it fun dealing with a federal agency? I used to work for SCS, seen it from the inside. Left because I didn't like it!
I try to stay away from surveying around Lake Barkley. It's not at all like surveying around KY lake.
A little more info for context...
I recall someone telling me that they were looking at property in Colorado and you could not legally collect the rainwater that fell on your roof.
A little more info for context...
This reminds me of the "Milagro Bean Field War" movie from the late '80's.
The water rights wars out west just baffles me with the lack of common sense involved.
Being from S. LA you just don't think of water that way.
