Kentucky’s Proposed Definition of “Private Waters”

Public Comment Deadline: September 30, 2026
The Kentucky Department of Fish and Wildlife Resources has proposed changes to 301 KAR 1:001, the regulation containing definitions used in Kentucky’s fishing regulations. The proposal follows legislation enacted during the 2026 General Assembly that established specific treatment for certain qualifying “private lakes or ponds.”
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The proposed regulation appropriately defines a “private lake or pond” using several specific criteria: it must be on private land, have no surface-water connection to public waters, be inaccessible to fish from other public waters, and be outside the 100-year floodplain. Those limitations recognize an important reality, a truly isolated farm pond is fundamentally different from a stream, wetland or other water that is physically connected to Kentucky’s broader aquatic system.
KWA’s concern is with a separate new definition. The regulation would define “private waters” as “any water body that is not a public water or a private lake or pond.”

That distinction matters because Kentucky law defines “public waters” for purposes of the Fish and Wildlife chapter as waters flowing in a natural stream channel or waters impounded on a natural stream. Under the proposed regulation, therefore, virtually any water body falling outside that definition and outside the newly defined category of a private lake or pond could potentially fall into a broad residual category called “private waters.”

KWA is concerned that this creates a category that is far broader than ordinary Kentuckians would understand the words “private waters” to mean. Waters do not become ecologically isolated simply because they fall outside a particular regulatory definition of “public waters.” Wetlands, springs, karst features, headwater areas, floodplain waters and other aquatic resources can be physically and biologically connected to downstream rivers and streams even when they do not neatly fit within the statutory definition being used for fish and wildlife purposes.

There is also a basic clarity problem. Calling a water body “private” can imply something about ownership, public rights, access, or the government's authority over that water, even though those questions may be governed by entirely different laws. A regulatory definition adopted for administering fishing laws should not unintentionally create confusion about the broader legal status of Kentucky waters.

KWA believes Kentucky can implement the General Assembly’s specific exemption for genuinely isolated private lakes and ponds without creating an unnecessarily broad new category of “private waters.” The broader point is that “not a public water under KRS 150.010” is not the same thing as “private.” The statutory definition of “public waters” was written for a specific Fish and Wildlife purpose and does not comprehensively capture every waterbody that is publicly owned, publicly used, or functionally part of a public water system.

That is the risk of the proposed definition: it turns a narrow statutory definition into a default rule that everything outside it is private, potentially reclassifying waters that have traditionally been understood or managed as public resources without the General Assembly ever making that policy choice.

What KWA is asking you to do: Ask the Kentucky Department of Fish and Wildlife Resources to remove the proposed definition of “private waters.” The General Assembly authorized the Department to address a specific category of qualifying private lakes and ponds; it did not direct the Department to create a broad new definition of all “private waters,” and such a definition is not necessary for Fish and Wildlife to carry out its mission.
At a minimum, before adopting any broader definition, the Department should conduct a fuller analysis of what “public waters” and “private waters” mean under Kentucky law and how those concepts interact with ownership, public rights, fish and wildlife management, and other state water laws. Any future definition should be based on that analysis and should not simply classify every water that does not meet the definition of a public water or a qualifying private lake or pond as “private.”
Written comments are due September 30, 2026, and may be submitted to Jenny Gilbert, Legislative Liaison, Kentucky Department of Fish and Wildlife Resources, at [email protected]. A public hearing is also scheduled for September 30 at the KDFWR Administration Building in Frankfort; anyone wishing to speak must notify the agency in writing at least five working days beforehand. 
Your Voice Matters
Public comment periods are one of the most direct opportunities Kentuckians have to influence how regulations are written before decisions become final. Comments do not need to be long or technical to be useful. Personal experience such as where you hunt, fish, paddle, hike, obtain drinking water, own land, or have seen the effects of erosion and poorly managed roads, can help agencies understand what these decisions mean on the ground.
For each of these proposals, KWA encourages commenters to explain why the issue matters to them, identify the specific concern they want the agency to address, and clearly state what they want the agency to do.