Colorado § 37-90.5-104 - Ownership declaration.

§ 37-90.5-104. Ownership declaration.

(1) Where a geothermal resource is found in association with geothermal fluid which is tributary groundwater, such geothermal resource is declared to be a public resource to which usufructuary rights only may be established according to the procedures of this article. No correlative property right to such a geothermal resource in place is recognized as an incident of ownership of an estate in land.

(2) The property right to a hot dry rock resource or a geothermal resource associated with nontributary groundwater is an incident of the ownership of the overlying surface, unless the property right is severed, reserved, or transferred with the subsurface estate expressly or is otherwise expressly separate from the surface estate. Geothermal resources associated with nontributary groundwater shall not be transferred separately from the nontributary groundwater. With respect to any severance, reservation, or transfer occurring after September 1, 2025:

(a) For any severance, reservation, or transfer of nontributary groundwater, there is a rebuttable presumption that the severance, reservation, or transfer includes any associated geothermal resources unless the severance, reservation, or transfer expressly states otherwise; and

(b) For any severance, reservation, or transfer of geothermal resources associated with nontributary groundwater, there is a rebuttable presumption that the severance, reservation, or transfer includes the associated nontributary groundwater unless the severance, reservation, or transfer expressly states otherwise.

(3) Nothing in this section shall be deemed to derogate valid, existing property rights to geothermal resources which have vested prior to July 1, 1983. However, such property rights shall not be deemed vested absent the award of a decree for an application filed prior to June 10, 1983, pursuant to existing water law or the entering into of a geothermal lease prior to June 10, 1983, or unless utilizing facilities are actually in existence prior to July 1, 1983. A facility for utilization of geothermal resources shall be considered to be in existence if it is in actual operation or is undergoing significant construction activities prior to operation.

(4) Notwithstanding any provision of this section to the contrary, nothing in this section:

(a) Derogates the rights of a landowner to nontributary groundwater;

(b) Affects any ownership or rights to a geothermal resource associated with nontributary groundwater, which resource is acquired before July 1, 2023; or

(c) Prevents an owner of nontributary groundwater rights from accessing nontributary groundwater for nongeothermal purposes that will not materially injure a prior geothermal operation.

(5) Repealed.

Source: L. 83: Entire article added, p. 1420, § 1, effective June 10. L. 2023: (2) and (4) amended and (5) added, (SB 23-285), ch. 235, p. 1236, § 7, effective July 1. L. 2025: (2) and (4) amended and (5) repealed, (HB 25-1165), ch. 257, p. 1305, § 13, effective August 6.

Cross references: For the legislative declaration in HB 25-1165, see section 1 of chapter 257, Session Laws of Colorado 2025.