Section 37-90.5-107 - Permits for the use of geothermal resources - rules(1)(a) After receipt of the necessary application, the state engineer shall issue a use permit to use distributed geothermal resources consistent with the requirements described in section 37-90-137.(b) After receipt of the necessary application, the state engineer shall issue a use permit to use allocated geothermal resources consistent with the requirements described in section 37-90-137 and after a determination that any associated geothermal fluid is nontributary groundwater. For the purposes of this section, this determination must rely on the definition of nontributary groundwater pursuant to section 37-90-103 (10.5) as determined by: (I) A decree of the water court;(II) A permit to construct a well to withdraw nontributary groundwater issued by the state engineer pursuant to section 37-90-137;(III) Rules adopted by the state engineer pursuant to section 37-90-137 (7)(c) for produced water that apply to use permits that are limited to the use of water as a material medium as the only beneficial use of water; or(IV) Rules adopted by the state engineer pursuant to subsection (6)(a) of this section.(2) The use of water as a material medium is recognized as a beneficial use.(3)(a) Nondiversionary utilization methods do not require a use permit pursuant to subsection (1) of this section but are subject to the rules adopted pursuant to section 37-90.5-106 (1)(a)(I) and (1)(b)(I); however, nothing in this subsection (3)(a) prevents the developer of a geothermal resource from establishing a water right based on the developer's actual utilization.(b) The requirement to issue a use permit pursuant to subsection (1)(b) of this section does not apply to operations that are solely nonconsumptive geothermal operations using allocated geothermal resources.(c) The use permit issued pursuant to subsection (1) of this section may be waived by the state engineer for a diversionary utilization method that does not impair valid, prior water rights.(d) The use permit issued pursuant to subsection (1) of this section may allow for nonconsumptive secondary uses of geothermal fluid, including the recovery of geothermal by-products, and may allow for consumptive secondary uses of geothermal fluid, including sale, which do not impair valid, prior water rights.(e) Notwithstanding any provision of this subsection (3) to the contrary, a water right to use a distributed geothermal resource associated with tributary groundwater may be obtained only in water court and is subject to article 92 of this title 37. The beneficial use of energy extracted from geothermal fluid associated with a distributed geothermal resource is the basis, measure, and limit of the water right, and efficient application methods must be used for the use of energy to qualify as a beneficial use.(4) Notwithstanding any provision of this section to the contrary, section 37-90-137 (4) applies to any consumptive use of allocated geothermal resources.(5) The provisions of articles 90 and 92 of this title 37 relating to notice, hearings, appeals, and the administration of water rights apply to all permitting actions by the state engineer pursuant to this section.(6)(a)(I) The state engineer may adopt rules for the administration of this section, including rules and procedures for the determinations described in subsection (1)(b) of this section.(II) The state engineer's rule-making authority pursuant to subsection (6)(a)(I) of this section includes the authority to adopt rules:(A) Pursuant to which geothermal fluid, in whole or in part, is determined to be nontributary pursuant to subsection (1)(b) of this section; and(B) That provide rule-making and adjudicatory procedures for the determinations described in subsection (6)(a)(II)(A) of this section that are made after the initial rule-making conducted pursuant to subsection (1)(b) of this section.(b) In any rule-making proceeding conducted pursuant to this section, any interested person has the right of cross-examination. Judicial review of any rules adopted pursuant to this section and any nontributary groundwater determinations made pursuant to subsection (1)(b) of this section must be in accordance with section 24-4-106; except that venue must be exclusively in the water court for the water division or divisions where the groundwater that is the subject of any applicable rule or determination is located.(c) In any judicial action seeking to curtail or declare unlawful the withdrawal, use, or disposal of groundwater pursuant to this section, there is a rebuttable presumption that any determination made by the state engineer pursuant to subsection (1)(b) of this section is valid.(d) Any rules adopted pursuant to this section must not conflict with existing laws and do not affect the validity of groundwater well permits existing prior to the adoption of the rules.Amended by 2023 Ch. 235,§ 9, eff. 7/1/2023.L. 83: Entire article added, p. 1421, § 1, effective June 10. L. 92: (7) amended, p. 2181, § 50, effective June 2. L. 2010: (8) amended, (SB 10 -174), ch. 189, p. 813, § 7, effective August 11. L. 2012: IP(3) amended, (SB 12-175), ch. 208, p. 886, § 160, effective July 1.