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LEGAL ANALYSIS Geothermal resource development is required to comply with various bodies of state and federal law. This legal analysis, authored by Moses, Wittemyer, Harrison & Woodruff and RPI Consulting, outlines the basic legal pa‐ rameters associated with geothermal resource develop‐ ment. The legal context of a particular geothermal energy strategy is dependent on several factors, such as whether water is tributary vs. non‐tributary water, whether the use of water is diversionary and/or consumptive use, and whether there are split estates involved in a particular ap‐ plication. 17 Legal Topic Land ownership Tributary Geothermal Water Non‐Tributary Geothermal Water Dry Hot Rock Land ownership ‐ surface severed Geothermal resource is subject to prior and appropriation; split estate may provide surface Split estates require surface owners to allow surface access for sub‐surface owners in a reasonable manner and at a reasonable time with compensation for damages (does not include the right to construct surface facilities for utilization of the geothermal resource). Split estates require surface owners to allow surface access for sub‐surface owners in a reasonable manner and at a reasonable time with compensation for damages(does not include the right to construct surface facilities for utilization of the geothermal resource). subsurface estates”). estates (“split access for sub‐surface owner to initiate an appropriation of tributary geothermal fluid. Geothermal rights Rights in tributary geothermal fluid are acquired through prior appropriation and require a Geothermal Permit. Diversionary or consumptive uses must meet one of three statutory criteria to prevent or to offset injury to prior water or geothermal rights. Applicants must demonstrate intent and ability to put the resource to beneficial use in order to receive a geothermal right. Geothermal groundwater rights are not based on prior appropriation but on ownership of the overlying land and assumption of a 100‐year aquifer life. Applicant has the burden of proof that the groundwater is non‐tributary and of the amount of such water underlying owner’s land. State Engineer’s Statewide Non‐Tributary Groundwater Rules apply. Heat pump or heat exchange closed (“geoexchange loop”)systems do not require appropriation of a water right; but a property right to the geothermal resource can be established based on actual utilization. Drilling or well construction permit A Drill Permit is required for construction of wells towithdrawgeothermalfluid.Theonlypermit required for a geoexchange loop system is certification of the person constructing the system. All wells are subject to the State Engineer’s Geothermal Rules. An individual constructing a geoexchange loopsystemmustbecertifiedunderState Geothermal Rules. Drill permit also required if depth of more than 2,500 feet or temperature higher than 212°F. Discharge permit Re‐injection requires a Colorado Division of Water Resources well permit after notice to and consultation with the Colorado Water Quality Control Division (CWQCD) and possibly with the Colorado Oil and Gas Commission. Applicants must also submit well information to EPA under federal Underground Injection Control regulations. Discharge of geothermal fluid to surface stream may require permit from CWQCD. Geothermal energy plants may also require Process Water, Stormwater and/or Groundwater Individual Industrial Wastewater permit. Re‐injection requires a Colorado Division of Water Resources well permit after notice to and consultation with the Colorado Water Quality Control Division (CWQCD) and possibly with the Colorado Oil and Gas Commission. Applicants must also submit well information to EPA under federal Underground Injection Control regulations. Discharge of geothermal fluid to surface stream may require permit from CWQCD. Geothermal energy plants may also require Process Water, Stormwater and/or Groundwater Individual Industrial Wastewater permit. Geothermal resource is not tied to surface ownership. Geothermal resource is tied to surface ownership, but can be severed, transferred or reserved. Geothermal resource is tied to surface ownership, but can be severed, transferred or reserved. Pre‐1983 rights evidenced by court decree, geothermal lease or facilities in existence prior to July 1, 1983 are grandfathered. Pre‐1983 rights evidenced by court decree, geothermal lease or facilities in existence prior to July 1, 1983 are grandfathered. A Drill Permit is required for construction of wells to withdraw geothermalfluid. Theonlypermit required for a geoexchange loop system construction is certification of the person constructing the system. All wells are subject to the State Engineer’s Geothermal Rules. Pre‐1983 rights evidenced by geothermal lease or facilities in existence prior to July 1, 1983 are grandfathered.PDF Image | Geothermal Energy Master Plan Town of Rico, Colorado
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