Geothermal Water Use in Montana
At a Glance
|Water Right Agency:||Montana Department of Natural Resources & Conservation|
|Water Right Classification||Prior Appropriation|||
|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.|||
|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|
|Contacts/Agencies:||Montana Department of Natural Resources & Conservation|
State Water Use Process
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.
Local Water Use Process
Policies & Regulations
- ARM 17-30 - Water Quality
- An Introduction to Electric Power Transmission
- CAPS: Crucial Areas Planning System
- CHAT: Crucial Habitat Assessment Tools
- EPA Class V Permitting Authorities Website
- ETrans Federal Permitting Transmission Tracking System
- Edison Electric Institute State Generation and Transmission Siting Directory
- Environmental Recommendations for Transmission Planning
- Glossary of Transmission Grid Integration Terms
- MCA 77-4-100 Geothermal Resources
- MCA 77-4-108 - Water Rights in Connection with Geothermal Development
- MCA Title 85 - Water Use
- Major Facility Siting Program - Circular 2
- Montana - ARM 17.20 - Major Facility Siting
- Montana - Access Road Easement Policy
- Montana - Application for Right of Way Easement for Utilities Through State Lands
- Montana - Encroachment Permit Application
- Montana - Instructions for Application for Utilities Across State Trust Lands
- Montana - Land Use License Application
- Montana - MCA 75-20 - Major Facility Siting
- Montana - Right-of-Way Checklist
- Montana 2012 Final Water Quality Integrated Report
- Montana 2012 Final Water Quality Integrated Report: Appendix A
- Montana 2012 Report on Selected Heritage Properties
- Montana 310 Permit Database
- Montana 319 Projects (Nonpoint Source Programs) Wiki
- Montana 401 Water Quality Certification Webpage
- Montana Air Quality Program Laws & Rules Webpage
- Montana Association of Conservation Districts Webpage
- Montana Board of Water Well Contractors Handbook
- Montana Board of Water Well Contractors Webpage
- Montana Building with Wildlife Guide
- Montana Bureau of Mines and Geology Website
- Montana Code 76-2-301 and 302
- Montana Construction Dewatering General Permit - Example Authorization
- Montana Construction Dewatering General Permit Application Information
- Montana Cultural Records Webpage
- Montana Disinfected Water and Hydrostatic Testing General Permit
- Montana Domestic Sewage Treatment Lagoons General Permit
- Montana Domestic Sewage Treatment Lagoons General Permit Fact Sheet
- Montana Domestic Sewage Treatment Lagoons General Permit Information
- Montana Environmental Policy Act Guide
- Montana Facilities Which Do Not Discharge Process Wastewater (MDEQ Form 2E)
- Montana Geographic Information Library
- Montana Ground Water Pollution Control System Information Webpage
- Montana Ground Water Pollution Control System Permit Application Forms Webpage
- Montana Groundwater Information Center Webpage
- Montana Guide to the Streamside Management Zone Law & Rules Webpage
- Montana Hazardous Waste Program Webpage
- Montana Information for 310 Applicant
- … further results
"Water Use" is not in the list of possible values (Land Use, Land Access, Exploration, Well Field, General Construction, Power Plant, Environment, On Site Evaluation, Cultural Resources, Water Quality, Air Quality, Geological Resources, Aesthetic Resources, Waste & Hazardous Material, Water Access, Site Considerations, Transmission Siting & Interconnection, Plant Decommissioning, Biological Resources, Land Use Assessment) for this property.
- Montana MCA Title 85, Water Use (2013).
- Montana MCA 77-4-102, Geothermal Resource Definitions (2013).