- Construction of geothermal plants
For the construction of geothermal plants is has to be differentiated between near surface geothermics and deep geothermics regarding the authorisation requirements.
According to § 6 sentence 1 2. Alternative BBergG the generation of not mountainous resources require an approval or must be a property of the mining plant. Not mountainous resources are according to the legal definition of § 3 section 3 sentence 2 cypher 2 lit. a) BBergG geothermal energy and other kinds of energy which result out of the energy generation.
The extension of the BBergG on the use of geothermal energy results out of the fact that the generation and the exploration of geothermal energy are comparable to other mining activities and normally a borehole is necessary. According to this, the principle authorisation requirement should guarantee a preferably early consideration of public interests. It is not legally clarified, from which temperature of the heat carrier it is possible to speak about geothermal energy. As near surface geothermic systems usually need minor temperature differences to produce energy, it is questionable whether the construction of such systems needs to be approved according to mining law.
Furthermore, an approval according to § 4 section 2 number 1 BBergG is usually not required due to the mass of near surface geothermic systems. As far as the plant is only operated on one plot of land and the generated energy is also exclusively use on this plot of land, a mining approval is not necessary.
The answer to the question, whether the construction of near surface geothermal plants needs to be permitted under water law, complies with the question whether a water use in terms of § 3 WHG is existent.
Such a ground water production is given unquestionable for near surface geothermal plants. Nevertheless, such a use could be free of permission according to § 33 section 1 cypher 1 WHG. But this is legally debatable. Independent from this issue it has to be considered that the reinjection of the used water into the ground water is subject to approval in any case (see § 3 section 1 cypher 5 WHG). Near surface geothermal plants with ground water production are normally subject to an approval under water law as far as they reinject water into the ground water.
For geothermal plants without ground water production a water use in terms of § 3 section 1 cypher 5 and 6 WHG in normally rejected. But an authorisation requirement under water law can be given in the shape of an use-related matter of fact pursuant to § 3 section 2 cypher 2 WHG. According to this also measures are seen as an use, which are suitable to cause physical, chemical or biological changes in the nature of the water. Such changes can especially result from drilling operations in the scope of the construction of a plant as well as from temperature change of the ground water caused by the heat extraction during operation.
Independent from the fact, whether the construction of the plant is subject to an approval under water, it has to be considered, that according to § 35 section 1 WHG the federal states have to define that the works are watched as far as the system of the water economy require that for excavations which enters into the ground over a certain depth. (But it is not regulated by the federal states from which depth an inspection has to be carried out.) The inspection requires an obligation of disclosure, which enables the authority to check the effect of the works onto the water economy (see e. g. § 45 section 1 SächsWG for excavations that create the fear of an exposing of ground water or an impact on the size, the flow or the character of the ground water).
The Federal Water Act does not deploy a concentration effect, i. e. it does not include other necessary approvals. According to this a building application has to be filed independent from the approval under water law as far as the plant – as normally assumed – is subject to the definition of the term project according to the building law.
Projects of deep geothermics are basically subject to a mining approval. An exception of the basic authorisation requirement according to § 4 section 2 cypher 1 BBergG is rejected. Deep geothermal plants are usually subject to a mining approval according to § 8 BBergG.
The mining approval according to § 8 BBergG only constitutes private appropriation rights and activity rights. But it does not allow for the exercise of this rights under public law; therefore an accreditation of the operating plan according to the §§ 50 ff. BBergG is necessary.
Deep geothermal plants within nature protection areas (or bird sanctuaries or rather flora-fauna-habitat areas) are also subject to an environmental impact assessment as a plan approval procedure according to § 1 cypher 8 Environmental Impact Assessment-regulation concerning mining from a depth of 1,000 m and more.
The use of deep geothermics is usually an use-related matter of fact in terms of the Federal Water Act. This is unquestionable as far as the plants are pumping the heated water out of the depth. But also when geothermal energy is used within a significant extent without such a method, an use-related matter of fact in terms of § 3 section 2 cypher 2 WHG is regularly given as adequate temperature changes of the ground water are the consequence.
Furthermore, dispositions under water law can be made when an accidental development of the ground water results from the construction of the plant (§ 35 section 2 WHG). In this case it is possible to range the elimination of the development when this is necessary with regard to the water economy.
§ 35 section 1 WHG is not used within the scope of deep geothermics as appropriate regulations of the Federal Mining Act are preceding.
The explanations concerning near surface geothermics are also valid with reference to the the necessity of a building permit for deep geothermics.
On 06 June 2008, the German Federal Parliament has enacted the amendment of the Act on Renewable Energy Sources (EEG), which will come into force on 01 January 2009. In this connection, the legal conditions for the production of electricity out of geothermal energy had been improved significantly. There are only two levels of remuneration in the future, whereat the rates of remuneration are increased relevantly. When the plant is launched within the year 2009, they amount to 16 cent per kilowatt-hour for a capacity of up to 10 MW and for a capacity of more than 10 MW 10.5 cents per kilowatt-hour. Plants that are launched until 2015 are stimulated additionally by an increase in remuneration of 4 cent per kilowatt-hour. Newly introduced is a bonus on heat use of 3 cent per kilowatt-hour for electricity that is produced in combination with a heat use of the positive list. There is another additional remuneration of 4 cent per kilowatt-hour when the electricity is produced by using petrothermal techniques.
Finally, the regulations concerning feed-in management had been redesigned in a significant way. Newly launched geothermal plants have to be equipped with a technical or operational attachment to remote-controlled reduce the fed-in power in case of grid congestion. They also have to be equipped with an attachment to call-up the actual feed-in to which the grid operator has access. Please note! Also already existing plants have to fulfil this requirement from 01 January 2011 onwards!
For new plants (i. e. plants that had been launched after 31 December 2008) but also for already existing plants it is obtained in general that the grid operator is allowed to regulate the feed-in capacity of plants with more than 100 kW as far as otherwise the grid capacity would be busy for this grid area. Plants for the production of electricity out of combined heat and power are thereby equated with plants for the production of electricity out of renewable energy sources – this is one difference to the EEG 2004. According to the intention of the legislator it should be possible in this way to switch off exactly that plant which causes the grid congestion. But the grid operator is only allowed to execute the feed-in management for a transition period until its grid is extended. To urge the grid operator to an accelerated grid extension, § 12 EEG 2009 envisions a claim of compensation for all switched-off or rather all output throttled plant operators. It is possible that grid operator and plant operator agree on a certain amount of compensation. When they do not come to an agreement, the missed electricity revenues less saved expenses have to be replaced. Please note: The one who has to pay for the compensation is always the grid operator whose grid has caused the overload. This is not always the grid operator who has to collect and reimburse the feed-in electricity according to the EEG. Also the up streamed grid operator of the transmission grid has to be considered.
All in all the new EEG 2012 is really wide and it is foreseeable that there will be numerous problems of application.