Geothermal Site Considerations Overview (2)
Site Considerations Overview Process
2.1 - Consider Project Location
Statutory or regulatory limitations require that certain lands be excluded from consideration for development. These lands generally include U.S. National Monuments, federally designated Wilderness Areas, and U.S. Forest Service primitive areas. Prior to substantial investments, a developer should research whether a proposed site or area is available for development. Federal Energy Regulatory Commission (FERC),Bureau of Reclamation (BOR), U.S. Forest Service (USFS), Fish and Wildlife Service (FWS), and Bureau of Land Management (BLM) provide guidance on federal exclusions and site specific stipulations to protect environmental resources.
Development may be restricted on a site for a variety of reasons, including:
- National park, monument, lakeshore, parkway, battlefield, or recreational area;
- National wildlife refuge, game preserve, fish hatchery;
- National scenic waterway;
- Wilderness area or wilderness study area;
- Indian or Military reservation;
- Cultural and historic value;
- Recreational, geologic, wildlife, or scenic value;
- Fish presence value;
- Threatened and endangered species;
- Impacts to Military operations;
- Land and Water Conservation Fund areas; or
- Urban Park and Recreation Recovery lands.
Under Executive Order 11988, each federal agency is required to take action to reduce the risk of flood loss, to minimize the impact of floods on human safety, health and welfare, and to restore and preserve the values of floodplains. If a proposed project is located within a floodplain, then federal agencies are required to take specific actions during environmental review under the National Environmental Policy Act (NEPA). For example, the federal agency will be required to consider alternatives to avoid adverse effects and incompatible development in floodplains areas.
Each BLM and Forest Service field office has a Land Use Management Plan outlining site-specific exclusion information and stipulations for mitigation of environmental concerns. Visit the BLM or USFS for links to local offices.
Resources to Determine Land Use Limitations
The Western Renewable Energy Zones initiative addresses exclusions of potentially available areas in its Phase 1 Report, which you can find on the Western Governors' Association Energy Website.
The Western Governors' Association has developed the Crucial Habitat Assessment Tool (CHAT) which allows developers to access an online system of maps displaying crucial wildlife habitat and corridors across the western United States. The developer will be able to make an initial determination as to whether the proposed project will interfere with a wildlife area. CHAT is designed to reduce conflicts during the development process and ensure the protection of wildlife through incorporating such considerations in the land use decision-making process.
The Natural Resources Defense Council (NRDC) in conjunction with the United States Department of Defense has developed the Renewable Energy and Defense Geospatial Database (READ-Database) to provide Geographic Information Systems (GIS) data to assist developers in choosing an appropriate site for their renewable energy project. The READ-Database highlights possible project locations which are unlikely to interfere with military activities, and have the fewest environmental conflicts. To access the READ-Database, developers must submit a request to the NRDC on their website.
The BLM/FS Geothermal Leasing in the Western US Programmatic Environmental Impact Study (PEIS) (2008) gives an overview of available federal lands in the western United States and provides a high-level view of exclusion areas (see page 2-12, Fig. 2-5).
BLM's Surface Management Agency provides an Interactive Map on BLM's Geocommunicator Website.
2.2 - Consider Land Access
Dependent upon land ownership of the proposed development site, the process for obtaining land access and/or a lease will vary. Reviewing the potential lease process can prevent surprises. Many federal agencies have varying requirements for siting projects on land which they manage. For example, if a project is located near a national park and could impact or impair National Park Service (NPS) resources, then the developer is required to coordinate with NPS to determine whether the impact would harm the integrity of park resources or values. The developer should consider any federal agencies or land that may be impacted by the proposed project to determine whether any further siting restrictions may be applicable.
In addition, it is critical to determine the classification of geothermal ownership within the state in which the proposed project is situated. There are three possible classifications of ownership for the geothermal resource represented in the various states in the United States: 1) a mineral right, 2) a water right, or 3) sui-generis. Below is a list of each state included in the RAPID Toolkit with a discussion of each state's treatment of geothermal rights. Ownership of geothermal interests are subject to legal uncertainties of state law and in many states a developer should have local legal counsel conduct a thorough review of ownership rights.
Alaska (Mineral and water)
- In Alaska, waters with temperatures lower than 248 degrees Fahrenheit (120 degrees Celsius) are available for appropriation as groundwater, and subject to state water law. Waters above 248 degrees Fahrenheit are treated as geothermal resources (AS 41.06.060) and owned by the state of Alaska through a reservation of geothermal rights regardless of surface ownership (AS 38.05.125). Alaska does, however, give surface owners a preferential right to prospecting or leasing the geothermal right (AS 38.05.181).
- 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" (Cal. PRC 6903).
Colorado (Mineral and water)
- In Colorado geothermal resources are regulated under the water rights system when the geothermal fluids are found in tributary groundwater, while a private landowner has the rights to the geothermal fluids in nontributary groundwater (CRS 37-90.5-104(1) and (4)). Where the geothermal resource does not have adequate fluid to bring the resource to the surface (i.e., is not a hydrothermal system) the resource is classified as "hot dry rock" and ownership of the geothermal resource rests with the surface owner, unless severed, reserved, or transferred (CRS 37-90.5-104(2)). (Geothermal Regulations in Colorado)
- In Hawai'i geothermal resources are included within the definition of mineral (HRS 0523A-0002). Hawai'i state law also defines a geothermal resource any fluids having a temperature less than 150 degrees Fahrenheit and not being used for electrical generation (HRS 0182-0001). Hawai'i also claims ownership of geothermal resources on all state and reserved lands. "Reserved lands" are those owned or leased by any person in which the state has reserved to itself, expressly or by implication, the minerals or the right to mine minerals, or both. "State lands" includes all public and other lands owned by or in the possession, use and control of the State of Hawai'i.
Idaho (Sui generis and water)
- In Idaho, ownership of "geothermal resources" is treated similar to mineral resource ownership. Groundwater having a temperature greater than 212 degrees Fahrenheit at the well bottom is classified as a "geothermal resource" (IC 42-4002(c)). Water between 85 degrees Fahrenheit and 212 degrees Fahrenheit at the well bottom is classified as a "low temperature geothermal resource." Idaho claims ownership of all geothermal resources underlying state and school trust lands. Idaho also claims the right to regulate development and use of all of the state's geothermal resources.
- The use of geothermal resources does not require a permit to appropriate water in Idaho unless it will decrease groundwater in any aquifer or other groundwater source or measurably decrease groundwater available from prior water rights. However, the use of low temperature geothermal resources does require a permit to appropriate water.
Montana (Sui generis)
- In Montana geothermal resources are sui generis, but are closely related to and possibly affecting and affected by water resources (MCA 77-4-104). On state lands, geothermal resources are owned by Montana as part of their mineral reservation and treated as a mineral lease. Geothermal resources are defined as the natural heat of the earth, including the energy, in whatever form in Montana (MCA 77-4-102). State water laws apply to all geothermal developments involving the production and diversion of geothermal fluids. Montana does label groundwater as a public reserve that must be appropriated for beneficial use. If any geothermal development on state land requires the utilization of water, the developer may apply to the Board of Land Commissioners anytime prior to 1 year before the expiration of a geothermal lease for permission to secure water rights under the geothermal lease (MCA 77-4-108).
Nevada (Mineral and water)
- Geothermal resources in Nevada belong to the owner of the surface estate, unless they have been specifically reserved by or conveyed to another person (NRS 534A.050). Geothermal resources are severable from the surface estate much like a normal mineral estate in Nevada. The geothermal resource includes the natural heat of the earth, pressure and all dissolved or entrained minerals...excluding hydrocarbons and helium (NRS 534A.010).
Oregon (Mineral and water)
- Geothermal resources are characterized in Oregon as water if the bottom hole temperature is less than 250 degrees Fahrenheit and as a mineral if the bottom hole temperature is greater than 250 degrees Fahrenheit. Oregon claims ownership of all geothermal resources located on state. ON private land, the surface owner owns the geothermal rights unless reserved or conveyed (ORS 522.035).
(Mineral and water)
- Ownership of geothermal resources in Utah derives from an interest in the land and not from an appropriated right to geothermal fluids (UCA 73-22-4). The right to a geothermal resources is based on ownership of the surface rights. However, the right to "geothermal fluids," which is defined as the "water and steam at temperatures greater than 120 degrees centigrade naturally present in a geothermal system" (UCA 73-22-3(4)) is based on a right to appropriate water and as such the developer must secure a permit from the Utah Department of Natural Resources and the Division of Water Rights to appropriate any geothermal fluids within the state.
(Mineral and water)
- In Texas geothermal resources are regulated by the Railroad Commission of Texas (RRC). There is discrepancy in Texas as to whether geothermal energy is regulated as a mineral right. Under, Tex. NR. Code § 141.0030, Geothermal energy and associated resources means:
- Products of geothermal processes, embracing indigenous steam, hot water and hot brines, and geopressured water;
- Steam and other gasses, hot water and hot brines resulting from water, gas, or other fluids artificially introduced into geothermal formations;
- Heat or other associated energy found in geothermal formations; and
- Any by-product derived from them.
- "By-product" means any other element found in a geothermal formation which is brought to the surface, whether or not it is used in geothermal heat or pressure inducing energy generation.
- There is also 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.
- In Washington geothermal resources are classified as sui generis, being neither a mineral right or a water right and the surface owner of private property owns the right to geothermal resources unless otherwise reserved or conveyed to another person or entity (RCW 78.60.040).
Land access is a key consideration for both the generation facility and for other required rights-of-ways (access roads, gen-tie lines, encroachment, etc.) Developers seeking to develop on private land must obtain property rights to the land, either by purchasing the land or negotiating a lease with the private landowner. To develop on state land, the developer might be required to obtain a lease, a right of way, or both. For example, if transmission facilities must be sited on state land in order to connect the project to the grid, the developer will need to obtain a transmission right-of way.
2.3 – Consider Water Access and Water Rights
Water access and water rights are predominantly governed by state law. Although water requirements are a primary site consideration for all renewable energy project developers, the requirements will differ greatly depending on the type of project.
For geothermal projects, a developer may require access to water for such uses as dust suppression for roads, construction activities, drilling operations, extraction of geothermal resources, plant cooling operations, etc. Water Access & Water Rights Overview: 19
2.4 - Review Applicable State and Local Law on Development Requirements
When considering a site for development, it may be useful to review some of the permits that will be required where the project is located. Reviewing the questions that will be considered during On-Site Evaluations will be useful in identifying potential issues with a particular location.
2.5 - Consider Environmental Process
The National Environmental Policy Act (NEPA) of 1970 requires Federal agencies to consider the potential environmental consequences of their proposed action, and any reasonable alternatives, before deciding whether and in what form to take an action.
The NEPA process is often the most time consuming process in permitting a geothermal site. It is often required for multiple phases of the project, so it is a good idea to list the phases early on in project development so that multiple phases may be addressed in one EA/EIS.
2.6 - Consider Transmission Siting and Interconnection Overview
The proximity to existing transmission and access to potential rights-of-way is key to a successful project.
2.7 - Contact Lead Agency
An important early step in project development is determining which agency (or agencies) is most central to the project. A lead agency is the public agency that has the principal responsibility for approving a project. Lead agency determination is affected by surface management (Federal, tribal, state, or private) or land/mineral rights ownership. In some jurisdictions there is a single agency officially designated as the lead agency for the entire project. In other circumstances, there is no single, dominant agency, while in others an agency may only be the lead on certain matters (e.g. environmental issues) or project phases.
The permitting process differs depending on the lead agency, so scheduling a meeting early in the development process is important. This meeting should precede any filings of applications and permits, since requirements obtained in a pre-filing meeting will heavily set the overall direction and timing of the project. The lead agency will often work directly with other coordinating or participating agencies; when this occurs developers are not allowed to interact with a coordinating agency directly. It may take one to two years between a pre-filing meeting with the lead agency and formally submitting permitting documents to that agency.
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