RAPID/Geothermal/Alaska/Water Access & Rights
Alaska Geothermal Water Access & Water Rights(19-AK)
In Alaska, geothermal resources, including hot brines and waters associated with the resource, are considered minerals for regulatory purposes. Alaska uses a temperature threshold to define geothermal resources. In order to be considered a “geothermal resource” the highest-temperature in a given geologic formation must be greater than 120 degrees Celsius. AS 41.06.060. As such, where the resource is greater than 120 degrees Celsius , Alaska water laws and regulations do not apply. Where the resource is not greater than 120 degrees Celsius (hereafter “low-temp”), Alaska water laws and regulations do apply.
Where a geothermal facility requires the use of water for ancillary purposes involved in a given project (cooling water, dust suppression, etc.), the requirements and process depends on whether the use qualifies as a “significant amount” of water under 11 AAC 93.035. If the use qualifies as a significant amount for ancillary activities related to geothermal development, developers will likely need to obtain water through municipal or governmental supplies, private lease supplies, a temporary water use permit, or a new water right. If the use qualifies as a significant amount for low-temp resource development, the developer will likely need to obtain a water right permit from the Alaska Department of Natural Resources (ADNR) Mining Land and Water (ML&W), construct a production well, and subsequently receive a license to appropriate water.
The following uses of water qualify as “significant amount”:
- The use of more than 5000 gallons of water in a single day from a single source; or,
- The regular daily or recurring use of more than 500 gallons of water per day for 10 days or more per year; or,
- The non-consumptive use of more than 30,000 gallons of water per day (0.05 cubic feet per second) from a single water source; or,
- Any water use that might adversely affect the water rights of other appropriators or the public interest. 11 AAC 93.035
For water needs that do not rise to the level of “significant amount” the developer does not need a permit, certificate, or authorization to divert, impound, or withdraw the water. However, developers should contact the ADNR regardless, as any water use could trigger the last factor in the “significant amount” definition.
One common way for developers to obtain a “significant amount” of water is to transfer all or parts of a water right by purchasing or leasing the right from an existing right holder. In order to effect any transfer of water rights, the developer must file a permit, certificate, deed, lease, contract, assignment of permit or other instrument transferring an appropriation with the office of the ML&W and record a certified copy of the instrument in the recorder's office of the recording district in which the appropriation is located. AS 46.15.160. Generally, the right to use water under an appropriation or permit runs with the land where it has been beneficially used and passes to the new owner of land upon a conveyance. However, all or part of an appropriation may be severed from the land, sold, leased, or transferred for other purposes or to other land, if approved by the ML&W. AS 46.15.160.
Temporary Water Use Permit
For the use of water for ancillary purposes involved in a given project (dust suppression, etc), if the developer seeks to use a “significant amount” of water for less than five years and the water in question is not already appropriated, the developer may submit an Application for Temporary Use of Water to the ML&W. The ML&W will issue public notice of the application and will approve the temporary use if it is consistent with 11 AAC 93.210 -93.220. A permit for the temporary use of water does not establish a water right or priority and the developer must comply with all permit terms over the course of use. Temporary water permits may be renewed, once, for an additional five year term.
Permit to Appropriate
In the case of low-temp resource development and in rare cases for the use of water for ancillary purposes involved in a given project (cooling water, etc), the developer may obtain a new water right by submitting an Application for Water Right to the ML&W. ML&W will provide public notice of the application, respond to any comments, and hold a hearing regarding the application if necessary. If the proposed appropriation is consistent with AS 46.15.080, ML&W will issue a permit to appropriate water. The permit will include required timelines for the construction of a water well and proof that the water is being put toward beneficial use. The developer must submit a Statement of Beneficial Water Use, and if approved, ML&W will issue a certificate of appropriation.
Determine Which State and Federal Permits Apply
Use this overview flowchart and following steps to learn which federal and state permits apply to your projects.
Permitting at a Glance
|Water Right Classification:||Prior Appropriation||||None. Water rights classifications are defined at the state-level.|
|Water Right Agency:||Alaska Division of Mining Land and Water|
|Geothermal Right Classification:||(Mineral and water) In Alaska, waters with temperatures lower than 120 degrees Celsius are available for appropriation as groundwater, and subject to state water law. Waters above this mark are treated as geothermal resources and owned by the state regardless of surface ownership. Alaska does, however, give surface owners a preferential right to prospecting or leasing the geothermal right.||||Geothermal resources include:
|Is a Water Right Required to Pump Geothermal Fluids?||Yes if below 120 degrees Celsius||Given the rights conveyed and the applicable definition of “geothermal resources,” developers do not need to obtain a state water right related to the extraction of hot water and brines that are part of the geothermal resource/formation. The right to extract water, brines, and fluids for the purposes of geothermal development is inherent in the rights conveyed under a federal geothermal lease.|
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