RAPID/Geothermal/Texas/Water Access & Rights

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Texas Geothermal Water Access & Water Rights(19-TX)

In Texas, geothermal resources, including hot brines and waters associated with the resource, are presumed minerals for regulatory purposes. As such, water removed from the ground in order to obtain geothermal resources is regulated as part of the mineral resource and not otherwise subject to Texas water law.

The state of Texas defines geothermal energy and associated resources as: “(A) products of geothermal processes, embracing indigenous steam, hot water and hot brines, and geopressured water; (B) steam and other gasses, hot water and hot brines resulting from water, gas, or other fluids artificially introduced into geothermal formations; (C) heat or other associated energy found in geothermal formations; and (D) any by-product derived from them.” Tx Nat. Res. Code 141.003

Furthermore, it is the declared policy of the state of Texas that: “since geopressured geothermal resources in Texas are an energy resource system, and since an integrated development of components of the resources, including recovery of the energy of the geopressured water without waste, is required for best conservation of these natural resources of the state, all of the resource system components, as defined in this chapter, shall be treated and produced as mineral resources;” Tx Nat. Res. Code 141.002(4)

Where the geothermal facility requires the use of water for ancillary purposes 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, a temporary water use permit, or a new or amended water right.

Temporary Surface Water Permits

For ancillary water uses related to construction, developers may be able to satisfy the project need by obtaining a temporary surface water permit. In Texas, the TCEQ, or in certain instances regional TCEQ offices or local Watermasters, issue temporary water permits for surface water use. Under Tex. Water Code § 11.138, a Temporary Water Permit is available if the diversion of water will not interfere with other water rights and the usage amount and time period either: 1) does not exceed ten acre feet and is for one year or less ( Application for a Temporary Water Use Permit for Up to 10 Acre Feet and Up to One Year); or 2) will exceed ten acre feet or is for longer than one year ( Application for a Temporary Water Use Permit for more than 10 Acre Feet, or for Longer than One Year). The TCEQ will not issue a temporary water permit for diversion periods greater than three years.

Transfer and/or Amendment

Texas water law allows for the transfer of surface water rights from one party to another. (Tex. Water Code, Title 2, Chapter 11 Water Rights). The Texas Commission on Environmental Quality (TCEQ) handles transfers of surface water rights. At a minimum, the developer and the previous owner need to submit a Transfer of Water Rights Ownership Application to the TCEQ. Where the project requires a changed purpose or location of use of the transferred water right, either the developer or seller of the water right may need to submit an Amendment of Water Rights Permit form to the TCEQ. If the developer does not own the overlying land, the developer may acquire the right to the groundwater beneath by obtaining the surface rights to the land. Alternatively, the developer may purchase the required ground water from the surface owner.

Conservation Districts

Developers seeking water for ancillary use within a groundwater conservation district may be subject to additional notice requirements and/or use restrictions. The developer should contact the local groundwater conservation district for procedures on how to transfer groundwater permits within a conservation district. Groundwater conservation districts are approved by and managed by the Texas Water Development Board (TWDB). The TWDB maintains Conservation Districts Maps. Except for wells located in Groundwater Conservation Districts and the Edwards Aquifer, which are subject to heightened rules and restrictions, groundwater pumping and usage is controlled by the rule-of-capture and private contracts.

New Water Right

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 a Water Rights Permit Application to the TCEQ and abide by the administrative process.

The TCEQ administers the rules and regulations pertaining to new surface water rights under a prior appropriation system (Tex. Water Code, Title 2, Chapter 11 Water Rights); while, groundwater rights belong to the surface owner and are dictated by the rule-of-capture and private contracts.

However, because Texas transitioned its water law system from an eastern riparian system to a western prior appropriation system in the late 1960s, there remain “decreed” riparian water rights that were grandfathered in from the pre-1967 system (Tex. Water Code, Title 2, Chapter 11 Water Rights).

Under, Tex. Water Code, Title 2, Chapter 11 Water Rights, surface water permits are only issued if a proposed appropriation is made for unappropriated water, complies with state laws and regulations, and the proposed appropriation does not unlawfully interfere with an existing water right.

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

Texas Federal

Water Right Agency: Texas Commission on Environmental Quality
Water Right Classification: Prior Appropriation, some pre-1967 raparian rights remain [1] None. Water rights classifications are defined at the state-level.
Geothermal Right Classification: There is some discrepancy in Texas as to whether geothermal energy is regulated as a mineral right. The statutory definition of “mineral” is the source of the uncertainty since statute describes geothermal energy as a mineral right. Per TX NR Code 141.003, geothermal energy includes the heat and any associated resource, therefore a developer can utilize gas and oil that come up when drilling for geothermal resources. [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? There is a discrepancy as to whether geothermal water, including injected water, is regulated as water or as a mineral due to the high salt content of the water. [From Texas GRR Meeting-2013_06_12_TX_flowchart_workshop_minutes.docx] 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. Texas TWC 11, Water Rights (1977).
  2. Texas TNRC 141.003, Definitions for Geothermal Resources (1979).