Hydropower Water Access and Water Rights (19)
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 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 Process
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, hydropower project developers should refer to the complex set of laws governing water in the state in which the development is proposed.
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.
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.
In Alaska, a developer may need to obtain a water right from the Alaska Division of Mining Land and Water (DMLW) if the project will divert, impound or use a significant quantity of surface or ground water. A hydropower developer may need to obtain a water right even for non-consumptive uses of water. 11 AAC 93.035(b). “Non-consumptive water use” means the instream use of water, or the diversion of water where the quantity of water diverted is not diminished except by evaporation or transpiration and the water is returned to its original source at the original point of diversion immediately after its use. 11 AAC 93.970 – Definitions. For more information, see:
In California, depending on the type of hydropower facility (dam, run-of-river, or pumped storage) and other water needs (such as dust suppression for roads and construction activities), the developer may rely upon surface water, groundwater, or municipal wastewater to meet the project’s overall water requirements. California law provides for different treatment of surface water and groundwater.
California has a hybrid surface water law system, containing elements of both riparian and prior appropriation water rights. 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. For more information, see:
In Colorado, the system of prior appropriation, known as the Colorado Doctrine (Doctrine) governs all surface and groundwater. Colorado Constitution Art. XVI, §§ 5, 6; CRS 37-82-101; CRS 37-92-102. “The basic tenant of the Colorado appropriation system is “first in time, first in right.”
Depending on the source of water supply and the use of the water, the 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 Ground Water Commission or the Colorado Division of Water Resources (State Engineer’s Office). CRS 37-80-101-111; Colorado Code of Regulations 2 C.C.R. 410-1, Rules and Regulations for the Management and Control of Designated Ground Water; 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:
In New York, water use is controlled by riparian principles. Both riparian and littoral owners are subject to the rule of reasonable use and must not unreasonably interfere with others’ uses of the water. 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 developer may also need to obtain a Protection of Waters Permit if the project modifies or disturbs a stream. For more information, see:
In Vermont, surface water and ground water 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). If the project abuts surface water, water use is controlled by riparian principles. If the developer owns the lands touching the waterway they have satisfied the riparian right to use the water. Chatfield v. Wilson, 31 Vt. 358, 262-63 (1858).
A developer may need to obtain a number of permits regarding the use of groundwater and surface water in Vermont. The developer may need a Stream Alteration Permit if the project changes, alters, or modifies any water-course, and/or a Groundwater Withdrawal Permit if the project withdraws 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:
Hydropower projects require access to water, which in many instances will require a water right or other approval by Washington Department of Ecology (“Department of Ecology”). Washington uses a prior appropriation system for the distribution of both surface water and groundwater rights 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. The Department of Ecology manages the state’s water resources and grants individuals or groups the right to use state waters under Washington – Wash. Rev. Code §§ 90.03 et seq., Water Code. In Washington, a hydropower developer requires a water right from the Department of Ecology or a local conversancy board to withdraw or divert and make beneficial use of public surface or groundwaters of the State. RCW 90.14.041.
A hydropower developer may also need to obtain a 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 to obtain 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:
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