RAPID/Geothermal/Washington/Water Access & Rights
Washington Geothermal Water Access & Water Rights(19-WA)
The state of Washington defines geothermal resources as sui generis: “being neither a mineral resource nor a water resource and as such are declared to be the private property of the holder of the title to the surface land above the resource, unless the geothermal resources have been otherwise reserved by or conveyed to another person or entity.” RCW 78.60.040. Pursuant to RCW 78.60.060, developers that remove and reinject water in a “closed loop” system in order to obtain geothermal resources are not subject to the appropriation rules and procedures outlined in RCW 90.44 Regulation of public groundwaters. In addition, water reasonably lost during the testing of a geothermal well or the temporary failure of a “closed loop” system is exempted from RCW 90.44.
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 Washington State Department of Ecology (WSDE) administers the rules and regulations pertaining to water rights ( RCW 90.03.380 and RCW 90.44.100) and should be consulted throughout any processes related to water rights and water access. Depending on the project location, the developer may require approval of a transfer or changed water right from both the WSDE and a local Water Conservancy Board. For new water rights, developers must obtain a permit from the WSDE, unless the water need falls within the 5,000 Gallons/day industrial exception. Regardless, for any project that requires new or additional water wells, the developer must formally notify the WSDE, hire a licensed well driller, and submit a water well report within 30 days after constructing the well.
Transfer or Change
Much of Washington’s public waters have been accounted for through water right claims, permits, or certificates. As a result, geothermal developers seeking water rights will likely acquire existing water rights already in use. Certain elements of a water right cannot be changed, including the instantaneous withdrawal rate or total annual quantity. However, other elements of a water right, such as the place of use, point of diversion or withdrawal, purpose of use, and season of use can be changed with the approval of the WSDE under RCW 90.03.380 and RCW 90.44.100 or through an approved local Water Conservation Board with WSDE approval under RCW 90.80 Water Conservancy Boards.
The circumstances in which a water right can be transferred or changed are complex and developers should contact the WSDE or an attorney for specific situations. Generally, a water right cannot be transferred if the transfer would cause injury to other water right holders. Additionally, a surface water right must be “perfected” (put to beneficial use) before the water right becomes eligible for a transfer, while a groundwater right does not need to be perfected to change the point of withdrawal or place of use ( RCW 90.44.100).
Water Conservancy Boards
The Washington Legislature authorized the creation of water conservancy boards under RCW 90.80 Water Conservancy Boards to expedite the administrative process for voluntary water right transfers within individual counties. In counties that have a water conservancy board, the board has the power to review applications for water transfers where the water proposed for transfer is currently diverted or would be diverted within that county. RCW 90.80.070. After approving a voluntary water transfer, the local water conservancy board must submit its record of decision to the WSDE for final approval. RCW 90.80.080).
New Water Right
In some cases, geothermal developers may be able to satisfy the project water need by acquiring a new water right. Washington employs a prior appropriation or “first in time, first in right” system under RCW 90.03 Water Code for surface waters and RCW 90.44 Regulation of public groundwaters for groundwater. The WSDE oversees the process for obtaining water rights and drilling wells for groundwater extraction. If the source of water supply will require a new water right, the developer generally must initiate the New Water Right Permit Process. A new water right permit may be required regardless of whether the source of water supply is a surface water (e.g., lakes, rivers, streams, and springs) or groundwater supply. WSDE issues water right permits through its regional offices in Lacey, Bellevue, Yakima, and Spokane.
5,000 Gallons/day Exception
However, under RCW 90.44.050 groundwater use for industrial purposes not exceeding 5,000 gallons per day is exempt from the permit process. Under the exemption, all wells for a given project apply toward the 5,000 gallon limit. In addition, the permit exemption is not available to prospective water users in certain areas that have been closed to further appropriation due to limited water availability. A developer should consult the WSDE for groundwater limitations at the specific project site. Although exempt groundwater withdrawals do not require a permit, the use of the groundwater is still subject to Washington water law and cannot interfere with a senior water right, including instream flow rules (i.e., withdrawals under the exemption establish a water right subject to the same privileges and restrictions as a water right permit or certificate). Regardless, developers may apply for a water right permit even if the use falls under the permit exemption.
If the source of water is a groundwater supply that will require the developer to drill a new well, the developer must initiate the Water Well Notice of Intent for New Well process. For a new water well, the developer must complete the Wells: Notice of Intent Forms and submit the form to the WSDE pursuant to RCW 18.104.048 and WAC 173-160-151. The NOI process does not result in a permit or certificate for a water right nor permission or approval to use water from the well. The NOI process informs the WSDE of the construction and location of a new well. The developer must otherwise obtain access to the groundwater through either the water permit/certificate system or a groundwater exemption to the permit/certificate system.
A developer seeking to use groundwater for an activity may need to drill a new well in a different location than a previous well, drill an additional well at an existing location, or drill a replacement well at the same location to access the groundwater. The WSDE oversees the process for drilling replacement or new additional wells under RCW 90.44.100.
In addition, when a developer needs to drill a new well, the developer must complete the Notice of Intent (NOI) to Drill a Well form and submit the form to the WSDE under RCW 18.104.048 and WAC 173-160-151.
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:||Washington State Department of Ecology|
|Geothermal Right Classification:||Sui generis: “being neither a mineral resource nor a water resource and as such are declared to be the private property of the holder of the title to the surface land above the resource, unless the geothermal resources have been otherwise reserved by or conveyed to another person or entity.” RCW 78.60.040.||Geothermal resources include:
|Is a Water Right Required to Pump Geothermal Fluids?||Pursuant to RCW 78.60.060, developers that remove and reinject water in a “closed loop” system in order to obtain geothermal resources are not subject to the appropriation rules and procedures outlined in RCW 90.44 Regulation of public groundwaters. In addition, water reasonably lost during the testing of a geothermal well or the temporary failure of a “closed loop” system is exempted from RCW 90.44.||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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