The following comments are from a presentation made by Marge Tempest, Utah Division of Water Rights at the Utah Geothermal Working Group Meeting, September 5, 2003.

General information involving diversion and use of water

1. All waters in the state (surface and underground regardless of temperature, quality, location or age) are the property of the public, subject to all existing rights to use water. In Utah, all projects involving the diversion of water for beneficial use require water rights.

2. Water rights are based on the Doctrine of Prior Appropriation. This fundamental principle establishes that those who first made beneficial use of water should be entitled to continued use in preference to those who came later. Thus, should the supply of water in either a specific resource or a hydrologic system become limited, those water right holders with senior (earlier) priority can require to be fully satisfied before junior (later) priority rights are served, regardless of type of beneficial use.

3. Beneficial use is the basis and measure and limit of a water right. Once established, water rights must be continually used, or they are subject to challenge as fully or partially forfeited.

4. A water right holder does not necessarily have to own the land where the water is diverted or the water is used. Water rights can be conveyed separately from land. However, if the approved water right and the place of use are owned by the same entity, and the land where the water is used is deeded without reservation of the water right, the approved water right can be conveyed silently as an appurtenance.

5. Rights can be obtained for new projects by: (1) filing applications to appropriate if water is available for new appropriation, (2) filing change applications on existing rights to amend them to authorize the new use, or (3) filing exchange applications on existing rights to allow for release of existing water supplies in lieu of water diverted for a new project. Change and exchange applications would require the retirement of the historic use to accommodate the proposed new development. Change and exchange applications require a hydrologic tie between the historic and the proposed sources.

6. In review of applications, the State Engineer must consider: if there is water available in the proposed source, if the proposed use will impair existing rights or interfere with the more beneficial use of water, if the proposed plan is physically and economically feasible and would not prove detrimental to the public welfare, if the applicant has the financial ability to complete the proposed works, if the application was filed in good faith and not for purposes of speculation or monopoly, and whether the application will unreasonably affect public recreation or the natural stream environment.

Information specific to heat projects

1. Proposals to utilize water because of its special temperature characteristics are treated the same as other water developments -- when the temperature is 120 degrees centigrade or less. There may be additional considerations due to unique circumstances with such water, but many of the issues remain the same as routine water projects.

2. Projects to utilize the temperature of the earth without diverting water would likely not require a water right. For example, drilling a well over thirty feet deep to use a closed loop heating system would need an authorization for a licensed driller to construct the well but would not need a water right application. Conditions for the well driller may be required to assure that any diversion of water or impact to water-bearing zones is prevented or minimized during the construction of the facility.

3. Test wells, monitor wells, and observation wells used to study water resources or manage projects would likely not require a water right, but would be subject to well drilling regulations if over 30 feet deep. Such authorizations are issued with specific limitations regarding diversion of water.

Information specific to high-temperature heat

1. Water and steam (geothermal fluid) at temperatures greater than 120 degrees centigrade (248 degrees Fahrenheit) are subject to special statutes addressing geothermal resource conservation. Appropriate water right filings are still required to divert and use the water, and special conditions regarding construction and operation of facilities to utilize such water are required to be met. Ownership of the water right is in the name of the applicant or its successors.

2. Ownership of the heat and energy (geothermal resource) is addressed separately. It derives from an interest in land, including federal and Indian lands to the extent allowed by law. In the event that the need for a cooperative or unit operation to conserve the resource and prevent waste is considered, the Division of Water Rights may initiate an adjudicative proceeding to address the matter. Adjudicative proceedings by the State Engineer are generally informal in nature and would involve the participation of the interested parties.