Blog by: Keyera Jackson
Kentucky’s water laws were written in the 1800s and still govern in the 21st century. The system was built when water demand was much lower and today water laws are ill-suited to deal with the growing demand of water. Riparian rights are tied to land ownership adjacent to a watercourse.[I] Under this doctrine, landowners have the right to use and enjoy the water, provided their use is reasonable and does not infringe upon the rights of other riparian owners.[II]
Kentucky adheres to the riparian rights doctrine, which grants landowners whose property borders a watercourse the right to make reasonable use of the water.[III] The reasonable use doctrine establishes a middle ground between the “natural flow” rule and unrestricted use, allowing for flexibility in balancing competing interests.[IV] Under this framework, riparian owners may use water for natural and domestic purposes, even if such use consumes the entire flow of the stream.[V] However, for other purposes like irrigation, the use must be reasonable ensuring that it does not exclude others from their rightful access to water.[VI] This doctrine sounds flexible, but it does not set hard limits. Instead, it asks judges to decide what’s “reasonable.” Thus, the doctrine is dependent on who the judge is, and the evidence presented resulting in farmers being given a patchwork of rulings to follow. Farmers need predictability to plan crops, and long-term investments. If they don’t know whether their water rights will hold up in court, it can create uncertainty. On top of that, two farmers in different counties could face different rulings under the same law which undermines the idea that laws should apply equally and fairly to everyone. Judicial discretion in water law matters because it can turn what should be consistent legal right of access to water into something that is unevenly distributed.
Next, Kentucky law prioritizes domestic uses of water, which include household needs and providing drinking water for livestock and poultry.[VII] These uses are deemed superior to all other uses, prioritizing basic human and animal needs are met before water is allocated for other purposes.[VIII] This reflects the state’s effort to balance needs, but it can leave farmers at a disadvantage when drought hits. Under Kentucky law, agriculture gets recognized as legitimate but only under “reasonable use,” meaning irrigation can be limited if it impacts other riparian owners.[IX] Irrigation is essential for many crops, especially during hotter summers and longer droughts. If irrigation is always ranked below domestic use, farmers may lose out in times of scarcity. When water runs short households and cities legally get priority. Farmers may have to cut back, reduce yields, or even abandon crops. This means farming communities will face difficulties planning long-term, since their access depends on what lawmakers prioritize in the law. If laws consistently prioritize domestic growth over agriculture, farmers could be pushed out of their land, rural economies could weaken, and food systems could become less stable.
Kentucky’s Energy and Environment Cabinet adds a regulatory layer, through regulations like 401 Ky. Admin. Regs. 10:030, where the cabinet enforces pollution controls and ensures cleaner water for all users.[X] By reviewing water supply plans the Cabinet tries to align local water use with state and regional goals.[XI] The Cabinet regulates how water is used, but it doesn’t change who has priority rights. These modern regulations are still rooted in riparian doctrine. The Cabinet shows lawmakers recognize water needs modern oversight, but because it operates on top of an outdated riparian rights framework, it can only regulate within those old boundaries.
On the other hand, Courts have developed a few catchall standards of relevant factors for assessing reasonableness.[XII] A multi-factor standard announced by the Minnesota Supreme Court is often quoted:
“In determining what is a reasonable use, regard must be had to the subject-matter of the use; the occasion and manner of its application; the object, extent, necessity, and duration of the use; the nature and size of the stream; the kind of business to which it is subservient; the importance and necessity of the use claimed by one party, and the extent of the injury to the other party; the state of improvement of the country in regard to mills and machinery, and the use of water as a propelling power; the general and established usages of the country in similar cases; and all the other and ever-varying circumstances of each particular case, bearing upon the question of the fitness and propriety of the use of the water under consideration.”[XIII]
While this does show that courts moved away from the natural flow theory trying to adapt more of a factors test, the courts have not gone far enough. These factors may have been a fix for the 19th century issues, but not for the 21st century issues.
Today climate change, drought, population growth, and artificial intelligence demand a system that accounts for scarcity. Instead of the current case-by-case decisions, lawmakers could strengthen statewide water allocation systems and set clear priorities during drought and storages. Lawmakers could keep the reasonable use standard behind the doctrine but pair it with more bright-line statutory standards. Lastly, lawmakers could shift the doctrine of reasonable use to include long-term sustainability. By doing so, they would be building long-term planning into the law and ensure farming communities, cities and ecosystems all have a fair share of water in the future.
[I] Stuart M. Speiser, Charles F. Krause, Alfred W. Gans, American Law of Torts § 21:17 (Feb. 2025) (ebook).
[II]Id.
[III] Klutey v. Commonwealth, Dept. of Highways, 428 S.W.2d 766, 769 (Ky. 1967).
[IV] Id.
[V] Id.
[VI] Anderson v. Cincinnati Southern Ry., 86 Ky. 44, 5 S.W. 49, 51 (1887).
[VII] KRS § 151.210.
[VIII] Id.
[IX] Kraver v. Smith, 164 Ky. 674, 177 S.W. 286, 291 (1915).
[X] 401 KAR 10:030.
[XI] Id.
[XII] Anthony Dan Tarlock, Jason Anthony Robinson, Law of Water Rights and Resources § 3:59 (July 2025), Westlaw (last visited October 4, 2025).
[XIII] Id.