Federal Geothermal Land & Geothermal Resource Access(3-FD)
Developers are required to obtain a Geothermal Lease from the Bureau of Land Management (BLM) in order to obtain federal mineral rights. In addition, developers may be required to obtain access to additional lands for their geothermal projects. For geothermal projects on United States Forest Service (USFS) or Bureau of Reclamation (BOR) lands, developers are required to obtain use authorization. Developers requiring access to federal lands for activities such as transmission and roads must obtain Right-of-Way access if the federal land implicated is not already covered by a lease. Developers of geothermal projects which will impact Indian tribes will have to work closely with those tribes.
Federal Geothermal Leases
The geothermal lease process is initiated by an interested party submitting a Nomination of Land for Geothermal Leasing on Form 3203-001 at the appropriate BLM state office. Some lands are not available for geothermal leasing by BLM, such lands are listed in 43 CFR 3201.11. Developers may be required to pursue amendments to land use plans in order to make certain areas available for geothermal leasing. If the lands are available for lease, then BLM will hold an oral competitive auction and the lands will be offered to the highest qualified bidder. Developers may obtain a lease through a non-competitive process if no one bids on the leases in the competitive auction.
A Geothermal Lease conveys the exclusive right to drill for, extract, produce, remove, utilize, sell, and dispose of all geothermal resources in the lands subject to the lease. BLM Form 3200-024a.
Geothermal resources include:
- All products of geothermal processes, including indigenous steam, hot water, and hot brines;
- Steam and other gases, 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 byproducts.
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.
Other Federal Land Access
Developers must obtain Right-of-Way Access for activities such as transmission, roads, and access if the federal land implicated is not already covered by a lease. Developers must obtain Right-of-Way (ROW) access from the federal agency with authority over the land in question through initial contact to begin the ROW process. Some federal agencies that may be implicated by the ROW process include the Bureau of Land Management, United States Forest Service, and/or United States Department of Transportation. The requirements and procedures for obtaining ROW access vary depending on the agency involved. Any application for a ROW must conform to the applicable land use plan, and will require review under the National Environmental Policy Act (NEPA). All applications for a ROW on federal lands, no matter which agency is overseeing the process, must be completed through Form SF-299 which contains detailed instructions.
Developers must obtain a special use authorization from the United States Forest Service (USFS) if their project requires authorization of use and/or occupancy of USFS lands. Special Use Authorization is granted for a specific use or occupancy of the land for a specific period of time. When developers propose to occupy and use USFS lands, they are required to contact the USFS office responsible for the management of affected land as early as possible in advance of the proposed use. 251.54(b)(2). USFS may approve or deny a special use authorization request following review of the proposal.
Developers must obtain a Use Authorization from the Bureau of Reclamation (BOR) if they seek to possess or occupy, or extract natural resources from, BOR lands, facilities, or water bodies. The Use Authorization will define the terms and conditions under which the developer may use the land. Infrastructure projects, such as transportation, telecommunications, utilities, and pipelines are typical uses which require a BOR Use Authorization. 43 CFR 429.3(e). Developers must submit a Form SF-299 application form to request authorization for the placement, construction, and use of energy, transportation, water, or telecommunications systems and facilities on BOR land. 43 CFR 429.10. Developers will be required to pay estimated administrative costs before full review of the application will be completed, and will be required to pay a use fee if the application is approved. 43 CFR 429.18(b) 43 CFR 429.24.
Developers are required to work closely with Indian tribes when seeking to develop geothermal resources on Indian land. The Bureau of Indian Affairs (BIA) administers many programs including natural resources management on trust lands representing 55 million surface acres and 57 million acres of subsurface mineral estates. The Division of Energy and Mineral Development within the BIA assists tribes with the exploration, development and management of their energy and mineral resources. Developers of geothermal projects that will implicate an Indian tribe must submit a formal letter expressing interest to enter into an agreement to the Tribal Council or appropriate office. Developers will negotiate with the appropriate tribe for a lease, which must be approved by the BIA. The Indian Mineral Development Act of 1982 provides guidelines for Indian mineral owners in preparing mineral leases which may impact the final lease obtained by the developer.
Determine Which Federal Permits Apply
Use this overview flowchart and following steps to learn which federal and state permits apply to your projects.
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