RAPID/Geothermal/California/Water Access & Rights
California Geothermal Water Access & Water Rights(19-CA)
In California, geothermal resources, including hot brines and waters associated with the resource, are considered minerals for regulatory purposes. Therefore, water removed from the ground in order to obtain geothermal resources is regulated as part of the overall mineral resource and not otherwise subject to California water law.
California defines geothermal resources as: “the natural heat of the earth, the energy, in whatever form, below the surface of the earth present in, resulting from, or created by, or which may be extracted from, such natural heat, and all minerals in solution or other products obtained from naturally heated fluids, brines, associated gases, and steam, in whatever form, found below the surface of the earth, but excluding oil, hydrocarbon gas or other hydrocarbon substances.” Cal. Pub. Res. Code Sec. 6903.
For ancillary water uses involved in geothermal development projects (cooling water, dust suppression, etc.), developers will likely need to obtain water through municipal or governmental supplies, private lease/purchase supplies, a short or long term water transfer, or a new water right. The California State Water Resources Control Board (SWRCB) administers the rules and regulations pertaining to water rights for surface waters and subterranean streams under Title 23 CCR Waters and the California Water Code.
In the rare case that the project area abuts surface water, the developer may be able to satisfy the project need for ancillary water uses via a riparian water right. In most cases, riparian rights take priority over appropriative rights but are still subject to the public trust and may not harm riparian rights of others. If the developer has a riparian right sufficient to satisfy the entire project water need, no permit is needed and the developer may continue with the project. However, developers are encouraged to file a Statement of Water Use and Diversion with the SWRCB in order to establish a record of water use that could be used to evidence the water right in the case of future disputes.
Change in Ownership
Where the developer chooses to purchase a surface water right from an existing right holder, the developer must submit a Notice of Change of Ownership to the SWRCB. Subsequent to verifying the change, the SWRCB will send notice of the change to the new owner, the primary previous owner, and any non-primary previous owners in order to ensure that all those with a stake in the water right are aware of the change in ownership.
Change in Existing Water Right
In addition to changing ownership, developers may need to change the point of diversion, place of use or purpose of use of an existing water right. Developers may choose to condition a purchase on the seller completing the change process or developers may pursue the change process subsequent to the purchase. Regardless, the changing party must submit a Petition for Change Form to the SWRCB, issue public notice of the petition, consult with the California Department of Fish and Game (CDFG) and the Regional Water Quality Control Board (RWQCB), and respond to public protests (if any). If necessary based on public protests, the SWRCB may hold a hearing on the change. Ultimately, the SWRCB will issue an order approving or denying the change of use.
Short or Long Term Water Transfer
California water law allows for the transfer of surface water rights form one party to another via either a Short Term Water Transfer (for one year or less) or a Long Term Water Transfer (for more than one year). Only water that would have been consumptively used or stored is available for transfer. Before issuing approval for a Short Term Water Transfer, the SWRCB must determine that the transfer will not injure any legal user of the water and that the transfer will not unreasonably affect fish, wildlife or other instream beneficial uses. California Water Code Section 1725. As part of the process, the developer must notify the public and consult with the CDFG and the RWQCB. If members of the public object to the transfer, the SWRCB may choose to hold a hearing on the petition. If no hearing is held or subsequent to a hearing, the SWRCB issues an order either approving or denying the temporary transfer. ( Section 1725, 1726; 23 CCR 801 et seq.; 23 CCR 811 et seq.)
Surface Water Appropriation
In rare cases, developers may seek a new water right to satisfy the ancillary water needs of a geothermal project. For new surface water rights, interested developers must submit an Application to Appropriate Water to the SWRCB and abide by the administrative process. Appropriating surface water in California can be costly and time consuming because the process includes extensive environmental compliance and review under the California Environmental Quality Act (CEQA).
Developers seeking to satisfy the project water need via groundwater appropriation should be aware of the following:
- Groundwater appropriation is only available if the project overlies a groundwater basin that is not fully adjudicated;
- Many groundwater basins are subject to groundwater management plans; and
- Even in the rare circumstances where groundwater appropriation is potentially available, local water well standards and procedures apply.
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:||Hybrid of Prior Appropriation and Riparian Right||||None. Water rights classifications are defined at the state-level.|
|Water Right Agency:||California State Water Resources Control Board|
|Geothermal Right Classification:||(Mineral) California defines ownership of geothermal resources as whomever owns the mineral estate. A geothermal resource is defined as "the natural heat of the earth, the energy, in whatever form, below the surface of the earth."||||Geothermal resources include:
|Is a Water Right Required to Pump Geothermal Fluids?||No||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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