On Governing Water - Aqua Shock: Water in Crisis - page 111

interaction directly with the water's allocation under this system.
In the West, on the other hand, you have the Bureau of Reclama-
tion and Department of Interior (federal agencies) heavily involved
in water disbursement.”
Riparian water rights are intended to give people whose land
borders on streams and rivers equal rights to the water, adds
Chicago-based water issues expert A. Dan Tarlock. “However,
nobody knows what the rights actually are because there has never
been any real attempt to quantify them. Basically it's 'act fi rst and
see if you get sued,'” says Tarlock, a frequent consultant to gov-
ernment agencies, author of the treatise Law of Water Rights and
Resources , and co-author of a casebook on water law, now in its sixth
edition. “Every time I have to write an opinion for some water proj-
ect in the East as opposed to the West, what I say is, 'There is no
certainty here, so the real question is: What's the risk of getting
sued?' and it's usually pretty minimal,” Tarlock adds.
Regulated riparianism. There is no such thing as pure riparianism
anymore, says Villanova professor of law Joseph Dellapenna. Instead,
he offers a third approach to water rights, which he calls regulated
riparianism. Dellapenna describes regulated riparianism as a system
of public property in which the state manages the resource in trust
for the public through time-limited permits. The permits provide
the necessary water security for private action, while the time limits
allow the state to revisit its decisions periodically—much like the way
the Federal Communications Commission issues broadcast licenses
or the Federal Energy Regulatory Commission issues dam permits.
This is, like traditional riparian rights, also a system of common
property, but in that case each person with lawful access basically
decides for him- or herself when, where, how, and how much water
to use, says Dellapenna. Prior appropriation, on the other hand,
is a system of private property in which each appropriator holds
a water right that is strictly defi ned as to when, where, how, how
much, and relative priority. Within the confi nes of these rights,
appropriators are free to use the water according to their own
judgment.
Some Eastern states have tempered their riparian rights approach
with a water permitting system. Florida, for example, uses a permit
system that works somewhat as prior appropriation does in the West,