RAPID/Geothermal/Montana/Water Access & Rights
Montana Geothermal Water Access & Water Rights(19-MT)
In Montana, geothermal resources are considered “sui generis” being neither a mineral resource nor a water resource, but they are closely related to and possibly affecting and affected by water resources in many instances. MCA 77-4-104. As such, developers must secure a water right before diverting/appropriating geothermal resources, unless an exception applies. Similar to many western states, water rights in Montana are based on the Doctrine of Prior Appropriation. Water Law Basics in Montana.
Within the Montana Department of Natural Resources & Conservation, the Montana Water Rights Bureau administers permits related to water rights pursuant to MCA 85-2.
For ancillary water uses involved in geothermal development projects (cooling water, dust suppression, etc.), developers will likely need to obtain water by negotiating a transfer from an existing water right holder, or by applying for a permit to appropriate water.
Exception: Where Permit to Appropriate is Not Required
“Outside the boundaries of a controlled groundwater area, a permit is not required before appropriating ground water by means of a well or developed spring:
- when a maximum appropriation of 350 gallons a minute or less is used in nonconsumptive geothermal heating or cooling exchange applications, all of the water extracted is returned without delay to the same source aquifer, and the distance between the extraction well and both the nearest existing well and the hydraulically connected surface waters is more than twice the distance between the extraction well and the injection well;” MCA 85-2-306(3).
However, within the boundaries of a controlled groundwater area, a permit to appropriate is always required for geothermal development unless the developer acquires sufficient water rights from an existing water right holder. MCA 85-2-306(2).
Permit to Appropriate Water
Developers must file an application, available on the Montana Water Rights Bureau Webpage, including enough hydrologic data to satisfy the evidentiary burden. The Montana Water Rights Bureau will post public notice of the application and only issue a preliminary determination to grant a permit if the application conforms to the criteria in MCA 85-2-311. If the preliminary permitting decision is contested, the Montana Water Rights Bureau will hold a hearing prior to issuing a final decision. If issued, the developer must construct works to divert/appropriate water and show proof of beneficial use. Subsequently, the Bureau will issue a Certificate of Water Right.
The water acquisition process is the same for both traditional water uses and geothermal resources, with the exception of acquiring a water right under a geothermal lease on state lands. MCA 77-4-108 requires the lessee to apply to the land board (at least one year before expiration of the lease) for the water right, as opposed to applying directly to the Water Rights Bureau.
Water Transfer or Change
To transfer ownership of a water right, developers must record the ownership transfer with the Water Rights Bureau by submitting a Water Right Ownership Update. MCA 85-2-101. If the transfer involves a change in the water right, developers must undergo the same administrative process as for a new appropriation, explained above. MCA 85-2-302.
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 Agency:||Montana Department of Natural Resources & Conservation|
|Water Right Classification:||Prior Appropriation||||None. Water rights classifications are defined at the state-level.|
|Geothermal Right Classification:||(Sui generis) On state lands, geothermal resources are owned by Montana as part of their mineral reservation. 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, unless an exception applies. Montana does label groundwater as a public reserve that must be appropriated for beneficial use.||||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. 43 CFR 3200.1.|
|Is a Water Right Required to Pump Geothermal Fluids?||Yes, unless an exception applies. State water laws apply to all geothermal developments involving the production and diversion of geothermal fluids, unless the limited exception in MCA 85-2-306(3) applies. Nonconsumptive closed-loop geothermal development not within the boundaries of the controlled groundwater area may fit within the exception. Montana does label groundwater as a public reserve that must be appropriated for beneficial use. Preliminary Site Considerations||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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