Colorado § 37-90.5-105 - Access - reasonable accommodation.

§ 37-90.5-105. Access - reasonable accommodation.

(1) Geothermal leases may be awarded by the state board of land commissioners for lands under its jurisdiction through negotiation or by competitive bidding, but no such lease may be awarded prior to a public notice period of thirty-five days.

(2) Where the property right to a severable geothermal resource has been severed, reserved, or transferred with the subsurface estate, its owner may enter upon the overlying surface parcel at reasonable times and in a reasonable manner to prospect for and produce the energy from such resource, if adequate compensation is paid to the owner of the surface parcel for damages and disturbance in accordance with subsection (3) of this section. This right of entry shall not include the right to construct surface utilization facilities, and such facilities may be constructed only upon agreement with the surface owner in accordance with subsection (3) of this section.

(3) (a) (I) A developer of any type of geothermal resource shall develop the resource in a manner that accommodates the surface owner by minimizing intrusion upon and damage to the surface of the land.

(II) As used in this section, "minimizing intrusion upon and damage to the surface" means selecting alternative locations for wells, roads, pipelines, or heat exchange or generation facilities, or employing alternative means of operation, that prevent, reduce, or mitigate the impacts of the geothermal development on the surface, where such alternatives are technologically sound, economically practicable, and reasonably available to the developer.

(III) The standard of conduct set forth in this subsection (3) does not prevent a developer from entering upon and using that amount of the surface as is reasonable and necessary to explore for and develop the geothermal resource.

(IV) The standard of conduct set forth in this subsection (3) does not abrogate or impair a contractual provision that is binding on the parties and that expressly provides for the use of the surface for the development of geothermal resources or that releases the developer from liability for the use of the surface.

(b) A geothermal resource developer's failure to meet the requirements set forth in this subsection (3) or, if applicable, subsection (2) of this section, gives rise to a cause of action by the surface owner. Upon a determination by the trier of fact that such failure has occurred, a surface owner may seek compensatory damages or such equitable relief as is consistent with paragraph (a) of this subsection (3) or, if applicable, subsection (2) of this section.

(c) (I) In any litigation or arbitration based upon subsection (2) of this section or paragraph (a) of this subsection (3), the surface owner shall present evidence that the developer's use of the surface materially interfered with the surface owner's use of the surface of the land. After such showing, the developer bears the burden of proof of showing that it met the standard set out in paragraph (a) of this subsection (3) and, if applicable, subsection (2) of this section. If a developer makes that showing, the surface owner may present rebuttal evidence.

(II) An operator may assert, as an affirmative defense, that it has conducted geothermal resource development in accordance with a regulatory requirement, contractual obligation, or land use plan provision that specifically applies to the alleged intrusion or damage.

(d) Nothing in this section:

(I) Precludes or impairs any person from obtaining any and all other remedies allowed by law;

(II) Prevents a developer and a surface owner from addressing the use of the surface for geothermal resource development in a lease, surface use agreement, or other written contract; or

(III) Establishes, alters, impairs, or negates the authority of local and county governments to regulate land use related to geothermal resource development.

Source: L. 83: Entire article added, p. 1420, § 1, effective June 10. L. 2010: (2) amended and (3) added, (SB 10-174), ch. 189, p. 812, § 6, effective August 11. L. 2012: (1) amended, (SB 12-175), ch. 208, p. 886, § 159, effective July 1.