RAPID/Roadmap/19 (1)
Hydropower Water Access and Water Rights Overview (19)
A hydropower developer must consider the project’s water access and water right needs. Water access and water rights are predominantly governed by state law. Based on the nature of the energy resource, hydropower projects require access to water, which in many instances will require a determination by the relevant state authority as to whether a water right is necessary. In addition, a developer may require water for, among other uses, dust suppression for roads and construction activities. Depending on the situation and demands of a project, a developer may seek water from a lease-holder, a municipality, or a permanent water right.
In the western United States, surface water rights are most often governed by a system of prior-appropriation, which allocates water rights by priority based on the date of application to a beneficial use; first in time, first in right. While in the eastern United States, surface water rights are governed by a system of riparian rights, which allocates rights based on property ownership adjacent to a body of water. In addition, some states have a hybrid system, such as California, which integrates both the riparian and prior-appropriation doctrines.
Water Access and Water Rights Overview Process
1
19.1 – Initiate State Water Access and Water Rights
Hydropower projects use water to generate electric energy and, as such, require access to water and might require water rights, under state law. The discussion of the prior-appropriation and riparian systems below refers to common issues that arise but is not representative of any particular state system. State water rights regimes can vary dramatically and, therefore, a hydropower project developer should refer to the complex set of laws governing water in the state in which the development is proposed.
Prior-Appropriation Systems
Under prior-appropriation regimes, hydropower generation is generally considered a non-consumptive use. Non-consumptive uses result in no net consumption of water. Hydropower projects that are non-consumptive are those that result in zero net consumption by returning to the stream the same amount of water diverted for the project. However, storing water in an uncontained system can result in evaporative consumption of the resource. For example, net consumption from evaporation might occur from large impoundments containing a reservoir or from a canal system.
In some states, no water right is required for non-consumptive uses unless other considerations are relevant. For example, many segments of water in various watersheds have minimum flow requirements known as in-stream flow rights. Impact to in-stream flow rights senior to the developer’s rights must be considered even for non-consumptive uses. In-stream flow rights would be relevant if, for example, in-stream flow rights exist on a segment of water between intake and discharge.
As an example of how one jurisdiction treats water access and rights for hydropower projects, in Colorado, to divert water for the purpose of generating hydroelectric power, the developer must obtain a water right based on the beneficial use of power generation. However, if hydropower is added to an existing system, such a system existing for irrigation or municipal use, the developer might not need to obtain a new water right water if the timing and duration of diversions, as well as net consumption, are not changed from their previous or historic use.
Riparian Systems
In riparian systems, water rights are use rights associated with ownership of land. The major distinction from water rights in a prior-appropriation system is that use is not required to hold the right. While riparian rights are those rights that attach to land adjacent to a stream or river, littoral rights are those rights that attach to land adjacent to a lake; these rights are often collectively referred to as riparian rights. Often there is no regulatory oversight of riparian rights; no permits system, no applications to file, no administrative process. As such, disputes over rights are adjudicated in state courts.
Use rights to water in riparian systems are qualified rights subject to the correlative rights of other riparian landowners. Relevant considerations that may apply, depending on the jurisdiction, are rights to natural flow of a stream and reasonable use. Issues might arise where use for the hydropower project impacts the natural flow of a stream or the reasonable use of another riparian right holder. “Natural” uses, such as those for domestic purposes, are preferred over “artificial” uses, such as those for commercial purposes. Water use for generating hydroelectric power is considered an artificial use. The developer should consider whether the proposed hydropower project will affect the correlative rights of other riparian landowners.
For a discussion of water rights regimes, see The Law of Water: An Introduction of Vermont Water Law; see also, Colorado Energy Office, Small Hydropower Handbook.
Alaska
Alaska water law is governed by a prior appropriation water rights system. A hydropower developer may need a water right from the Alaska Division of Mining Land and Water to divert, impound or use a significant quantity of surface or groundwater. In certain circumstances, a developer may also need to obtain a water right for non-consumptive uses of water. 11 AAC 93.035(b). For more information, see:
Arkansas
Currently, the RAPID Toolkit does not have state specific content regarding water access and water rights for hydropower development in Arkansas.
California
California has a hybrid surface water law system, containing elements of both riparian and prior appropriation. The California State Water Resources Control Board (SWRCB) has exclusive jurisdiction over surface water rights and groundwater that is closely related to or behaves like surface water. All other sub-surface water is defined as “percolating groundwater” and is not subject to regulation by the SWRCB. Rights to percolating groundwater are determined by the court system and subject, in most cases, to local groundwater management. A hydropower developer may need a water right from the SWRCB for projects that require the use of surface water or groundwater that is closely related to or behaves like surface water. For more information, see:
Colorado
Colorado surface and groundwater law is governed by the prior appropriation system, known as the Colorado Doctrine. Colorado Constitution Art. XVI, §§ 5, 6; CRS 37-82-101; CRS 37-92-102. “The basic tenant of the Colorado prior appropriation system is “first in time, first in right.” A hydropower developer may need a water right, a well permit, or approval of a water replacement plan either adjudicated by the designated water court, or from the Colorado Groundwater Commission or the Colorado Division of Water Resources (State Engineer’s Office). CRS 37-80-101-111; CRS 37-92-301, Water Rights Determination and Administration Act of 1969; Colorado-C.R.S. 37-90 et seq., Colorado Groundwater Management Act. For more information, see:
Illinois
Currently, the RAPID Toolkit does not have state specific content regarding water access and water rights for hydropower development in Illinois.
Indiana
Currently, the RAPID Toolkit does not have state specific content regarding water access and water rights for hydropower development in Indiana.
Iowa
Currently, the RAPID Toolkit does not have state specific content regarding water access and water rights for hydropower development in Iowa.
Kentucky
Currently, the RAPID Toolkit does not have state specific content regarding water access and water rights for hydropower development in Kentucky.
Louisiana
Currently, the RAPID Toolkit does not have state specific content regarding water access and water rights for hydropower development in Louisiana.
Minnesota
Currently, the RAPID Toolkit does not have state specific content regarding water access and water rights for hydropower development in Minnesota.
Mississippi
Currently, the RAPID Toolkit does not have state specific content regarding water access and water rights for hydropower development in Mississippi.
Missouri
Currently, the RAPID Toolkit does not have state specific content regarding water access and water rights for hydropower development in Missouri.
New York
New York water law is governed by riparian principles. Both riparian and littoral owners are subject to the rule of reasonable use. Barkley v. Wilcox, 86 N.Y. 140, 146-47 (N.Y. 1881). Surface waters are held in public trust and it is the policy of the state to develop state waters for public beneficial use, while also conserving the state’s water resources. A hydropower developer may not unreasonably interfere with other riparian water rights. A developer may also need a Protection of Waters Permit from the New York State Department of Environmental Conservation to modify or disturb a stream. For more information, see:
North Dakota
Currently, the RAPID Toolkit does not have state specific content regarding water access and water rights for hydropower development in North Dakota.
Ohio
Currently, the RAPID Toolkit does not have state specific content regarding water access and water rights for hydropower development in Ohio.
Pennsylvania
Currently, the RAPID Toolkit does not have state specific content regarding water access and water rights for hydropower development in Pennsylvania.
Tennessee
Currently, the RAPID Toolkit does not have state specific content regarding water access and water rights for hydropower development in Tennessee.
Vermont
Vermont surface water and groundwater is held in public trust. 10 V.S.A § 901; 10 V.S.A. § 1390. Surface water in Vermont is governed by a system of riparian rights. Johns v. Stevens, 3 Vt. 308, 315-16 (1830). A hydropower developer may need a number of approvals regarding the use of groundwater and surface water. The developer may need a Stream Alteration Permit to change, alter, or modify any water-course, and/or a Groundwater Withdrawal Permit to withdraw groundwater, and/or a Lake Encroachment Permit for any encroachment beyond the mean water level of a lake or pond. 10 V.S.A. §1021(a); Stream Alteration Rule, CVR 12-030-022 § 301(a); 10 V.S.A. § 401. For more information, see:
Washington
Washington surface and groundwater is governed by a prior appropriation system, in which water users receive the right to use water on a “first in time, first in right” basis. RCW § 90.03.010. Under Washington law, the waters of Washington belong collectively to the public and as such are not owned by any individual or group. A hydropower developer may need a water right or other approval from the Washington Department of Ecology (Department of Ecology) or a local conservancy board to withdraw or divert and make beneficial use of public surface or groundwater of the state. A developer may also need to Reservoir Permit from the Department of Ecology to construct an impoundment and store water, for beneficial use, in a reservoir. W.A.C. § 508-12-260; Application for a Reservoir Permit, at p. 4. In addition, a developer may need a Hydraulic Project Approval for any project that diverts, obstructs, or changes the natural flow or bed of any state water. W.R.C. §77.55.011(11); W.R.C. §77.55.021; W.A.C. §220-660-010. For more information, see:
West Virginia
Currently, the RAPID Toolkit does not have state specific content regarding water access and water rights for hydropower development in West Virginia.
Wisconsin
Currently, the RAPID Toolkit does not have state specific content regarding water access and water rights for hydropower development in Wisconsin.
Contact Information
Suggest a contact using the Feedback button above.Suggest edits using the Feedback button above.
References