How 1041 Regulations are
Impacting Geothermal
Development
A discussion of how counties are applying 1041
regulations to geothermal development and the
challenges it creates for government and business
© 2012 By Todd M. Starr
First a Word about County’s
• “As a political subdivision, a county, and its
commissioners, possess only such powers as are
expressly conferred upon them by the constitution and
statutes, and such incidental implied powers as are
reasonably necessary to carry out such express
powers.” Board of County Com'rs of Dolores County v.
Love 172 Colo. 121, 470 P.2d 861 (Colo. 1970).
1041
C.R.S. § 24-65.1-10
(2) It is the purpose of this article that:
(b) Local governments shall be encouraged to designate areas and
activities of state interest and, after such designation, shall administer
such areas and activities of state interest and promulgate guidelines for
the administration thereof; and
(c) Appropriate state agencies shall assist local governments to
identify, designate, and adopt guidelines for administration of matters of
state interest.
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C.R.S. 24-65.1-104 (10):
• “Mineral” does not include surface or groundwater
subject to appropriation for domestic, agricultural, or
industrial purposes, nor does it include geothermal
resources.
_________
On Federal lands Geothermal = Mineral
Other lands Geothermal = Water
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C.R.S. 24-65.1-108
Responses of State Agency or Commissions
…such agency or commission shall establish a reasonable time period,
which shall not exceed sixty days following receipt of such permit
…if additional information is required, said agency or commission shall
set a reasonable time period for response following the receipt of
such information
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C.R.S. 24-65.1-201
Areas of State Interest
(1) Subject to the procedures set forth in part 4 of this article, a local
government may designate certain areas of state interest from
among the following:
(a) Mineral resource areas;
(b) Natural hazard areas;
(c) Areas containing, or having a significant impact upon, historical,
natural, or archaeological resources of statewide importance; and
(d) Areas around key facilities in which development may have a
material effect upon the key facility or the surrounding community
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C.R.S. 24-65.1-203
Activities of State Interest
(f) Site selection and construction of major facilities of a
public utility;
(h) Efficient utilization of municipal and industrial water
projects;
(j) The use of geothermal resources for the commercial
production of electricity.
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C.R.S. 24-65.1-402
Regulations
(1) The local government shall develop guidelines for
administration of the designated matters of state
interest.
(2) A local government may adopt regulations interpreting
and applying its adopted guidelines in relation to
specific developments in areas of state interest and to
specific activities of state interest.
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C.R.S. 24-65.1-403.
Technical and financial assistance
(1) Appropriate state agencies shall provide technical
assistance to local governments in order to assist local
governments in designating matters of state interest
and adopting guidelines for the administration thereof.
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$$$SHOW ME THE MONEY$$$
(2)(a) The department of local affairs shall oversee and
coordinate the provision of technical assistance and
provide financial assistance as may be authorized by
law.
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C.R.S. 242-65.1-501
(1)(a) Any person desiring to engage in development in an
area of state interest or to conduct an activity of state
interest shall file an application for a permit with the local
government in which such development or activity is to take
place. A reasonable fee determined by the local
government sufficient to cover the cost of processing the
application, including the cost of holding the necessary
hearings, shall be paid at the time of filing such application.
Current Status
• Most Counties have 1041 Regulations
• None have Geo Thermal Specific
Current Status
• Archuleta County (a/k/a God’s County) is developing
Geothermal specific 1041 Regulations.
• Involving Chafee County, Ouray County and Dolores
County
• Consistency across the state should promote
development and lower costs
Why
• Why would a county develop 1041Regulations specific to
Geothermal?
• Better-suited to address environmental impacts of land use than
zoning regulations because the statute is a very specific grant of
authority over environmental impacts associated with matters of
state interest.
• 1041 regulations are rarely preempted. We know that 1041
regulations apply to projects funded by or authorized by special
districts, colleges, and municipalities, whereas, after the Hygiene
case, it is clear that zoning regulations are preempted by 30-28(1)110(c).
• California Coastal Commission v. Granite Rock : 1041 applies to
state agencies and on federal land.
Why
(cont’d)
•
•
•
•
Ability to draw upon State resources
Consistency (Activity & Elected Official)
Economic Development
Local Control
On With The Show
• How counties are applying 1041 regulations to
geothermal development and the challenges it creates
for government and business?
They Are Not!......yet
Challenges it creates for
government
• Expertise in smaller rural areas (DOLA)
• Crafting Regulations that can respect the emerging
nature of industry
• Budgetary constraints
• Stress to respond, monitor and enforce
Challenges it creates for
business?
• Compliance
• Risk of Public Disclosure
• As with any permitting process, denial
Why Care About The Impacts
of Geothermal?
• Impacts cannot be predicted as they are very site
specific and depend a lot on the technology, (elsewhere
impacts have included loss of wildlife habitat from downwind deposition zones, subsidence, odor, CO2 and
Sulphur dioxide emissions, and of special importance to
areas like Pagosa, there are potential negative impacts
on production rates at nearby tourist hot springs and
spas.
• Requires large amounts of water for injecting
underground. "Flowback fluids" are highly contaminated
(but probably will require under ground injection permits
which minimize the impact to water quality.)