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NATURAL RESOURCE AND ENVIRONMENTAL LAW—WATER LAW The Secretary of the Interior has delegated its geothermal leas- ing authority to the BLM. To lease the mineral rights associated with geothermal resources, a developer or other interested party may nominate a federal parcel for leasing and submit bids pursuant to a BLM-established bidding process through which leases are awarded to the highest responsible and qualified bidder.15 BLM and U.S. Forest Service lands are subject to leasing, but national park lands are not—for example, Yellowstone National Park is not subject to geothermal development. If a competitive lease sale is nominated and held out for a given land tract, but no competitive bids are received, that particular tract will be available for noncompetitive leasing for a subsequent two- year period. Lands subject to existing mining claims also may be available for noncompetitive geothermal leases. Leases may be available for competitive bidding as a block.16 The Energy Policy Act of 2005 expanded the acreage limitation for geothermal leases to a single area up to 5,120 acres. Additional- ly, the limitation on total control and ownership of geothermal leases within a particular state was expanded from 20,480 acres to 51,200 acres.17 Geothermal leases have a primary term of ten years, which can be extended, provided that certain requirements are met toward development of the resource.18 The Energy Policy Act of 2005 led to restructured regulations concerning the general geothermal leasing process, as well as to re- visions to the regulations that govern royalties and readjustment of lease terms, conditions, and rentals.19 The federal government re- tains 25 percent of revenues collected from royalty payments based on the lease, state governments receive 50 percent of royalty reve- nues collected, and county governments receive 25 percent.20 A geothermal lease does not grant the lessee the exclusive right to develop a parcel of land, and does not grant the right to develop other types of minerals. Other developers can lease rights to mate- rials within the same lease area. Each lessee is under a duty to not interfere with other types of mineral leases on a given parcel and must reasonably accommodate the surface uses in the area.21 The BLM completed a programmatic environmental impact statement (PEIS) for geothermal leasing and development in De- cember 2008.22 The Record of Decision for the geothermal PEIS: (1) allocated BLM lands as either open to be considered for geot- hermal leasing or closed for geothermal leasing, and identified na- tional forest lands that are legally open or closed to leasing; (2) de- veloped a reasonably foreseeable development scenario that indi- cates a potential for 12,210 megawatts of electrical generating capacity from 244 power plants by 2025, plus additional direct uses of geothermal resources; and (3) adopted stipulations, best man- agement practices, and procedures for geothermal leasing and de- velopment.23 The analysis conducted by the PEIS will be tiered with analysis of site-specific environmental impacts necessary for development of individual leases. BLM hopes to expedite these de- cisions and analyses with more resources by opening its Renewable Energy Coordination Offices, which were announced in May 2009.24 In addition, Chapter 24 of Title 30 of the U.S. Code promotes geothermal research, development, and demonstration projects through inter-agency collaboration and the provision of loan guar- antees. The Geothermal Energy Coordination and Management Project has exclusive authority with respect to the establishment or approval of programs or projects initiated for research, develop- ment, identification of new areas of technology and resources, and the development of demonstration projects.25 The Act also formed a loan guarantee program for qualifying projects.26 With regard to water, the Geothermal Steam Act states that the U.S. Congress did not make an express or implied claim or denial on the part of the federal government as to its exemption from 66 The Colorado Lawyer | September 2010 | Vol. 39, No. 9PDF Image | Getting Into Hot Water: The Law of Geothermal Resources in Colorado
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