21080.67.
(a) This division does not apply to a geothermal exploratory project, as defined in Section 21065.5, for which a county or the Geologic Energy Management Division is the lead agency pursuant to Section 3715.5, including any permit, funding, or other approval by a state or local agency for the geothermal exploratory project as may be required by this division, if the lead agency determines that the geothermal exploratory project meets all of the following conditions:
(1) The project does not include the production of geothermal resources in commercial quantities.
(2) The project site is not more than 20 acres total at the surface and the project site does not disturb more than 12 acres of previously undisturbed ground at the surface. For purposes of this paragraph, “undisturbed” means in a natural state without industrial or other development.
(3) The project site does not include, or lie within 100 feet of, any of the following:
(A) A site that is included on any list compiled pursuant to Section 65962.5 of the Government Code.
(B) Rivers, streams, or riparian corridors, except temporary road or electric distribution line crossings. Temporary road or electrical distribution line crossings shall be undertaken pursuant to an agreement issued by the Department of Fish and Wildlife pursuant to Chapter 6 (commencing with Section 1600) of Division 2 of the Fish and Game Code, as applicable.
(C) Lands identified for conservation in an adopted natural community conservation plan pursuant to the Natural Community Conservation Planning Act (Chapter 10 (commencing with Section 2800) of Division 3 of the Fish and Game Code) or a habitat conservation plan pursuant to the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), or other adopted natural resource protection plan.
(D) Identified habitat for species of special status identified by state or federal agencies, including species protected under the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), or the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code), and any species identified as fully protected pursuant to Sections 3511, 4700, 5050, and 5515 of the Fish and Game Code.
(E) Lands with a conservation easement unless consistent with the terms or requirements of the easement.
(4) The project site does not include, or lie within, 300 feet of wetlands, as described in subdivision (l) of Section 21067.5.
(5) Wells included within the project are set back at the surface at least 100 feet from a public road and at least 300 feet from a building that is open to the public, if present, and the property line of any adjacent properties that are not affiliated with the project or the project applicant.
(6) The project will not result in significant adverse impacts to any of the following:
(A) Natural resources, including sensitive habitats and any species of special status identified by state or federal agencies, including species protected under the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), or the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code), and any species identified as fully protected pursuant to Sections 3511, 4700, 5050, and 5515 of the Fish and Game Code.
(B) Hydrological resources, including rivers, streams, wetlands, groundwater wells, springs, and aquifers.
(C) Tribal, historical, and other cultural resources.
(7) The project applicant has provided to the lead agency a legally binding commitment to comply with Section 21183.5.
(8) The project applicant has submitted to the lead agency a preliminary description of the anticipated composition of fluids to be used for any hydraulic fracturing operations expected to occur in the geothermal exploratory project, if applicable.
(9) Unusual circumstances do not exist that would cause the project to have a significant adverse impact on the environment.
(b) (1) The project developer shall conduct a reconnaissance survey using best practices, including the identification of relevant protocols and guidelines used in conducting the survey, and shall supply the lead agency with the reconnaissance survey when applying for an exemption from this division pursuant to this section. The reconnaissance survey shall include, but is not limited to, all of the following information:
(A) The identification of natural resources including sensitive species of flora and fauna, sensitive habitats and hydrological resources including rivers, streams, wetlands, groundwater wells, springs, and aquifers. The reconnaissance survey shall include a biological resources survey that shall, at a minimum, identify any species of special status identified by state or federal agencies, including species protected under the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), or the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of Division 2 of the Fish and Game Code), and any species identified as fully protected pursuant to Sections 3511, 4700, 5050, and 5515 of the Fish and Game Code.
(B) The identification of any tribal, historical, and other cultural resources.
(2) For purposes of this subdivision, “reconnaissance survey” means a survey of a proposed geothermal exploratory project site conducted before applying for an exemption from this division pursuant to this section. A reconnaissance survey does not need to include the level of detail required in an initial study.
(c) (1) Upon receipt of an application for a project pursuant to this section, the lead agency shall engage in a scoping consultation regarding the proposed development with a California Native American tribe that is traditionally and culturally affiliated with the geographic area, as described in Section 21080.3.1, of the proposed geothermal exploratory project in order to determine whether the project will result in significant adverse impacts to a tribal cultural resource. In order to expedite compliance with this subdivision, the lead agency shall contact the Native American Heritage Commission for assistance in identifying any California Native American tribe that is traditionally and culturally affiliated with the geographic area of the proposed geothermal exploratory project.
(2) The timeline for noticing and commencing a scoping consultation pursuant to this section shall be as follows:
(A) The lead agency shall provide a formal notice of an application pursuant to this section to each California Native American tribe that is traditionally and culturally affiliated with the geographic area of the proposed development within 30 days of receiving that application.
(B) Each California Native American tribe that receives a formal notice shall have 30 days from the receipt of that notice to accept the invitation to engage in a scoping consultation.
(C) If the lead agency receives a response accepting an invitation to engage in a scoping consultation, the lead agency shall commence the scoping consultation within 30 days of receiving that response.
(3) The scoping consultation shall recognize that California Native American tribes traditionally and culturally affiliated with a geographic area have knowledge and expertise concerning the resources at issue and shall take into account the cultural significance of the resources to the culturally affiliated California Native American tribe.
(4) (A) The parties to a scoping consultation conducted pursuant to this subdivision shall be the lead agency and any California Native American tribe traditionally and culturally affiliated with the geographic area of the proposed geothermal exploratory project.
(B) More than one California Native American tribe traditionally and culturally affiliated with the geographic area of the proposed geothermal exploratory project may participate in the scoping consultation. Upon request by any of the participating California Native American tribes, the lead agency shall engage in a separate scoping consultation with that California Native American tribe.
(5) The applicant and the applicant’s consultants may participate in a scoping consultation process conducted pursuant to this subdivision if all of the following conditions are met:
(A) The applicant and the applicant’s consultants agree to respect the principles set forth in this subdivision.
(B) The applicant and the applicant’s consultants engage in the scoping consultation in good faith.
(C) The California Native American tribe participating in the scoping consultation approves the participation of the applicant and the applicant’s consultants. The California Native American tribe may rescind its approval at any time during the scoping consultation, either for the duration of the scoping consultation or for any particular meeting or discussion held as part of the scoping consultation.
(6) The participants to a scoping consultation pursuant to this subdivision shall comply with the following confidentiality requirements:
(A) Section 7927.000 of the Government Code.
(B) Section 7927.005 of the Government Code.
(C) Subdivision (c) of Section 21082.3.
(D) Subdivision (d) of Section 15120 of Title 14 of the California Code of Regulations.
(E) Any additional confidentiality standards adopted by the California Native American tribe participating in the scoping consultation.
(7) A scoping consultation pursuant to this subdivision shall be deemed to be concluded if either of the following occurs:
(A) The parties to the scoping consultation document an enforceable agreement concerning methods, measures, and conditions to avoid or address potential impacts to tribal cultural resources that are or may be present.
(B) One or more parties to the scoping consultation, acting in good faith and after reasonable effort, conclude that a mutual agreement on methods, measures, and conditions to avoid or address impacts to tribal cultural resources that are or may be present cannot be reached.
(8) This division shall not apply to a scoping consultation pursuant to this subdivision.
(9) For purposes of this subdivision, the following definitions apply:
(A) “Consultation” means the meaningful and timely process of seeking, discussing, and considering carefully the views of others, in a manner that is cognizant of all parties’ cultural values and, where feasible, seeking agreement. Consultation between local governments and California Native American tribes shall be conducted in a way that is mutually respectful of each party’s sovereignty. Consultation shall also recognize the tribes’ potential needs for confidentiality with respect to places that have traditional tribal cultural importance. A lead agency shall consult the tribal consultation best practices described in the “State of California Tribal Consultation Guidelines: Supplement to General Plan Guidelines” prepared by the former Office of Planning and Research.
(B) “Scoping” means the act of participating in early discussions or investigations between a local government and a California Native American tribe, and the development proponent if authorized by the California Native American tribe, regarding the potential effects a proposed development could have on a potential tribal cultural resource, as defined in Section 21074, or California Native American tribe as defined in Section 21073.
(C) “Tribal cultural resource” means a site, feature, place, cultural landscape, sacred place, including a Native American sanctified cemetery, Indian cemetery, or Indian burial area, or an object with cultural value to a California Native American tribe that is any of the following:
(i) Included or eligible for inclusion in the California Register of Historical Resources or the National Register of Historic Places.
(ii) Included in a local register of historical resources as defined in subdivision (k) of Section 5020.1.
(iii) Included in a tribal government register maintained by a Tribal Historic Preservation Officer approved by the Secretary of the Interior pursuant to Section 101 of the federal National Historic Preservation Act (54 U.S.C. Sec. 300101 et seq.).
(iv) Identified by the Native American Heritage Commission as a sacred place pursuant to Section 5097.94 or 5097.96.
(d) If the lead agency determines that a project is not subject to this division pursuant to this section, the requirements of Section 21183.5 shall apply.
(e) (1) The lead agency may require the project applicant to file an indemnity bond before it makes its determination pursuant to subdivision (a). The bond, in a form and manner prescribed by the lead agency, shall be in an amount sufficient to secure any supplemental costs beyond the applicant’s bonding requirements with the Geologic Energy Management Division, pursuant to Section 3725, to secure full reclamation of the project site.
(2) If a project is not subject to this division pursuant to this section, the project shall include full reclamation of all well pads, temporary routes, and other disturbances, including the reestablishment of vegetative cover with native plants, unless those disturbances are incorporated into a subsequent geothermal field development project, as defined in Section 65928.5 of the Government Code.
(f) At least 30 days before making a determination to approve a geothermal exploratory project as exempt from this division pursuant to this section, the lead agency shall post a written notice of the intent to apply the exemption at the project site and post a written notice of the intent to apply the exemption and the entire project application on its internet website.
(g) If the lead agency determines that a project is not subject to this division pursuant to this section, and the lead agency determines to approve or carry out the project, the lead agency shall file a notice with the State Clearinghouse in the Office of Land Use and Climate Innovation and with the county clerk of the county in which the project is located in accordance with subdivisions (b), (c), and (d) of Section 21152. The lead agency shall provide a copy of the notice filed with the State Clearinghouse to the Department of Fish and Wildlife and the relevant California regional water quality control board.
(h) If a project is not subject to this division pursuant to this section, when making a filing pursuant to Section 3735 to the Geologic Energy Management Division of the Department of Conservation, the project developer shall include a disclosure of the composition of fluids used in all relevant hydraulic fracturing operations, and shall file a copy of the disclosure with the lead agency, if applicable.
(i) For purposes of this section, “project site” means land that is altered at the surface for a geothermal exploratory project that is seeking an exemption from this division pursuant to this section. “Project site” shall not necessarily include the entire property on which the project is located.
(j) This section is not intended, and shall not be construed, to limit consultation and discussion between a local agency and a California Native American tribe pursuant to other applicable law, confidentiality provisions pursuant to other applicable law, the protection of religious exercise to the fullest extent permitted pursuant to state and federal law, or the ability of a California Native American tribe to submit information to the local agency or participate in any process of the local agency.
(k) This section shall remain in effect only until January 1, 2031, and as of that date is repealed.