RAPID/Geothermal/Colorado/Water Access & Rights

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Colorado Geothermal Water Access & Water Rights(19-CO)

The state of Colorado defines geothermal resources as “The natural heat of the earth, including the energy that might be extracted from the natural heat, the material medium used to extract the energy from a geothermal resource, and geothermal byproducts.” CRS § 37-90.5-103(3).

Pursuant to CRS 37-90.5-107, “the appropriation of geothermal fluids to recover geothermal resources is recognized as a beneficial use of ground water.” ( 2 CCR 402-10). Generally, developers need a permit from the Colorado Division of Water Resources (CDWR) in order to appropriate groundwater in order to utilize its geothermal energy, otherwise known as an application to appropriate geothermal fluid. CRS 37-90.5-107(2)(a). However, developers that remove and reinject water in a “closed loop” system in order to obtain geothermal resources may be exempt from the (appropriation) permit requirement if waived by the CDWR. CRS 37-90.5-107(2)(a). The CDWR may only waive the permit requirement if the use will not impair valid, prior water rights. Regardless, any geothermal resource exploration, production, or reinjection wells require prior approval from the CDWR in the form of a water well permit. CRS 37-90.5-106.

Where the geothermal facility requires a consumptive use of water or 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 supplies, or a new or changed water right. The CDWR administers the rules and regulations pertaining to water rights in accordance with C.R.S. 37 - Water and Irrigation and 2 C.C.R. 402 - Division of Water Resources. The rules and restrictions vary depending on the specific basin/location and whether the water is considered tributary, nontributary, or not nontributary. Developers should always consult with the CDWR early in the process.

Water Well Permit

In Colorado, every new well that is not otherwise exempt and that diverts ground water from areas outside of the boundaries of a designated ground water basin must obtain a water well permit by submitting a Well Permit Forms and Associated Documents to the CDWR. The CDWR issues water well permits pursuant to the requirements in C.R.S. 37-90-137 and 2 C.C.R. 402-7 - Non-tributary Ground Water Rules|2 C.C.R. 402-7. The CDWR may hold a hearing regarding the water well permit application. Subsequent to permit issuance and well construction, the developer must submit a Form GWS-31 to the CDWR.

Tributary vs. Nontributary

All tributary geothermal resources are the property of the public and the use of such is governed by the CDWR and CRS 37-90.5. Tributary water is groundwater with an effective hydrologic connection to a surface drainage system. It includes shallow bedrock aquifers and alluvial aquifers. All water in Colorado is considered to be tributary unless it has been designated otherwise by the CDWR. 2 CCR 402-10.

Nontributary geothermal wells are governed by the corresponding statute for non-geothermal water wells. CRS 37-90-137. C.R.S. 37-90-103(10.5) defines “nontributary” to mean “ground water located outside the boundaries of any designated ground water basins in existence on January 1, 1985, the withdrawal of which will not, within one hundred years of continuous withdrawal deplete the flow of a natural stream at an annual rate greater than one-tenth of one percent of the annual rate of withdrawal. Developers can petition the CDWR to make a determination regarding tributary-status.

Denver Basin

Projects that require a well for the consumptive use of water within the Denver Basin ( i.e., the Dawson, Denver, Arapahoe, and Laramie-Fox Hills aquifers) are subject to specific rules (2 CCR 402-6 The Denver Basin Rules) in addition to the general rules (CRS 37-90-137). Water within the Denver Basin may be classified as nontributary or not nontributary. Under CRS 37-90-103(10.7), "not nontributary ground water" is defined as “ground water located within those portions of the Dawson, Denver, Arapahoe, and Laramie-Fox Hills aquifers that are outside the boundaries of any designated ground water basin in existence on January 1, 1985, the withdrawal of which will, within one hundred years, deplete the flow of a natural stream, including a natural stream as defined in sections 37-82-101(2) and 37-92-102(1)(b), at an annual rate of greater than one-tenth of one percent of the annual rate of withdrawal.”

In determining whether the water is from a nontributary or not-nontributary source, the developer should consult The Denver Basin Rules for maps and descriptions of the location of nontributary ground water in the Denver Basin and the Colorado Division of Water Resources.

Designated Basin

Projects that require a well for the consumptive use of water within a designated basin are subject to the heightened rules and procedures administered by the Colorado Ground Water Commission (CGWC) pursuant to CRS 37-90-104 and under CRS 37-90-107, 108. Designated basins include a group of eight basins in the eastern plains of Colorado with only a small amount of surface water.

Denver Basin and Designated Basin

Part of the Denver Basin aquifers lies beneath the boundary of a Designated Ground Water Basin. For ground water that is located within both the Denver Basin and the Designated Ground, the CGWC oversees the adjudication of water rights upon the basis of ownership of the overlying land and well permitting under C.R.S. 37-90-107, Application for Use of Ground Water and 2 C.C.R. 410 - Rules and Regulations for the Management and Control of Designated Ground Water.

More Information

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

Colorado Federal

Water Right Agency: Colorado Ground Water Commission, Colorado Division of Water Resources
Water Right Classification: Prior Appropriation Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882) and Colorado Constitution [1] None. Water rights classifications are defined at the state-level.
Geothermal Right Classification: (Mineral and water) In Colorado geothermal resources are considered water rights on private lands, but mineral rights on state and federal lands. However, if the geothermal resource is classified as a mineral right, only the heat is classified as a mineral. [2] Geothermal resources include:
  1. All products of geothermal processes, including indigenous steam, hot water, and hot brines;
  2. Steam and other gases, hot water, and hot brines resulting from water, gas, or other fluids artificially introduced into geothermal formations;
  3. Heat or other associated energy found in geothermal formations; and
  4. Any byproducts.
43 CFR 3200.1.
Is a Water Right Required to Pump Geothermal Fluids? Yes - The use of water as a material medium is recognized as a beneficial use of such water. All applications to appropriate groundwater in order to utilize its geothermal energy shall be considered an application to appropriate geothermal fluid. (2) (a) Prior to the production of geothermal fluid from a well, other than for flow-testing purposes, a permit to appropriate shall be obtained from the state engineer. This requirement shall not apply to nondiversionary utilization methods (i.e., non-consumptive uses of the geothermal fluids); however, such exemption shall not prevent the developer of a geothermal resource from establishing a property right based on his actual utilization. [3] 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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List of Reference Sources

  1. Coffin v. Left Hand Ditch Co., {{{Volume}}} 6 Colo. 443 unknown (1882).
  2. Paul Morgan. 2012. Geothermal Regulations in Colorado - Land Ownership is the Key. In: GRC Transactions. GRC Annual Meeting; 2012/09/30; Reno, Nevada. Davis, California: Geothermal Resources Council; p.
  3. C.R.S. 37-90.5-107 Relationship to water - when permit required (2013).