In an opinion filed June 28, and later ordered published on July 27, 2018, the Second District Court of Appeal (Div. 6) affirmed the trial court’s judgment dismissing on demurrer a writ petition seeking to compel the County of San Luis Obispo to comply with CEQA in issuing well construction permits to four agricultural enterprises, mostly for vineyard irrigation. The Court held County’s governing local ordinance, which addresses only water quality issues and incorporates fixed technical standards for well construction from relevant Department of Water Resources (DWR) Bulletins, established a ministerial scheme for issuing such permits and does not confer “discretion to shape a well permit to mitigate environmental damage arising from groundwater overuse.” California Water Impact Network v. County of San Luis Obispo (Justin Vineyards and Winery, LLC et al., Real Parties in Interest) (2018) 25 Cal.App.5th 666.
Appellant’s petition alleged County’s decision to issue permits for groundwater extraction wells was discretionary, and it complained that County’s failure to conduct allegedly required CEQA review resulted in its failure to analyze individual or cumulative environmental impacts, including adverse water supply impacts, from its ongoing approval of dozens, and possibly hundreds, of well permits over the past several years.
In affirming the judgment of dismissal, the Court of Appeal reviewed the petition and County’s governing ordinance de novo to determine whether County was required to conduct CEQA review, or whether well permit issuance was a CEQA-exempt ministerial act. The Court first made some contextual observations, including that constitutionally-declared state water policy requires water resources to be put to beneficial use (Cal. Const., Art. X, § 2), and that water use for domestic and irrigation purposes is considered beneficial. (Wat. Code, § 106.) Further, overlying owners have extraction rights, and local agencies manage groundwater appropriation through permitting.
Before addressing the specifics of County’s well construction ordinance (County Code Chapter 8.40), the Court laid out the relevant and well-established ministerial/discretionary act analysis: While CEQA applies to projects subject to discretionary government approval, it does not apply to ministerial acts (Pub. Resources Code, § 21080(a),(b)(1)); a discretionary project “requires the exercise of judgment or deliberation” and “does not encompass situations where the agency ‘merely has to determine whether there has been conformity with applicable statutes, ordinances, or regulations’” (CEQA Guidelines, § 15357); ministerial actions “involv[e] little or no personal judgment by the public official as to the wisdom or manner of carrying out the project” and the “official merely applies the law to the facts as presented but uses no special discretion or judgment in reaching a decision. A ministerial decision involves only the use of fixed standards or objective measurements, and the public official cannot use personal, subjective judgment in deciding whether or how the project should be carried out.’” (§ 15369.)
The Legislature excluded ministerial projects from CEQA because “unless a public agency can shape the project in a way that would respond to concerns raised in an EIR… environmental review would be a meaningless exercise.” (Citing Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 117.) “Absent discretion to deny a permit, an agency has no duty to conduct a CEQA review, no matter what ‘terrible environmental consequences’ an EIR might reveal.” (Quoting Leach v. City of San Diego (1990) 220 Cal.App.3d 389, 394.) The “litmus” for distinguishing between discretionary and ministerial functions is the agency’s governing law: “The agency may determine what acts are ministerial by analyzing its own laws ([CEQA Guidelines] § 15268(a)), and its view of the scope and meaning of its own ordinance is entitled to great weight unless that view is clearly erroneous or unauthorized. (Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, 1015.)”
Applying these relevant principles to County’s well construction ordinance, which covers extraction wells for irrigation purposes, the Court noted the ordinance’s stated purpose is to ensure wells are constructed, repaired, modified or destroyed in such a manner that groundwater will not be contaminated or polluted, and so that the well water obtained will be suitable and safe for beneficial use. In other words, its standards are focused on ensuring wells are constructed so as to protect the quality of the groundwater and water extracted for beneficial use. Well permit applications are accordingly required to list well location, depth and use, and to describe nearby property lines, sewage systems, water courses or bodies, drainage patterns, wells and access roads.
Only licensed well drilling contractors may receive permits, which “shall be issued” if they comply with county and state standards; in the case of non-coastal zone permits, such as those at issue in the case before it, the Court noted the issue essentially boiled down to whether the state standards in the incorporated DWR bulletins require County to exercise discretion before issuing well permits. In concluding they do not, it observed that the issuance of building permits is presumed ministerial absent any discretionary provision in the governing ordinance (CEQA Guidelines, § 15268(b); Friends of Juana Briones House v. City of Palo Alto (2010) 190 Cal.App.4th 286, 302-303), that “[a] well building permit is a type of building permit” and that “[s]o long as technical standards and objective measurements are met, County must issue a well permit to licensed contractors.”
The DWR Bulletins’ technical specifications are designed to protect water quality, not to regulate usage or supply, and do not call for the exercise of subjective judgment. Per the Court, Chapter 8.40’s purpose is preventing contamination or pollution of groundwater during well construction, repair, modification or destruction, and it would be impermissible to rewrite it “to infer a legislative intent to condition well permits on pump limits or subsidence monitoring, which have nothing to do with groundwater pollution. The County has no discretion to impose water usage conditions on permits issued under Chapter 8.40.”
The Court also noted its analysis was unaffected by Appellant’s claim that County exercises some discretion in issuing well permits since “to trigger CEQA compliance, the discretion must be of a certain kind; it must provide the agency with the ability and authority to ‘mitigate… environmental damage’ to some degree.” (Quoting San Diego Navy Broadway Complex Coalition v. City of San Diego (2010) 185 Cal.App.4th 924, 934.) Further, the Ordinance’s “instruction to applicants to include all necessary information [to determine if groundwater will be protected] does not transform the inquiry into a discretionary review.”
After noting that the 2014 Sustainable Groundwater Management Act (SGMA) was not addressed in County’s relevant ordinance or at issue in the case, the Court summarized its holding as follows:
Appellant did not and cannot plead a cause of action requiring County to comply with CEQA before issuing well permits under County Code Chapter 8.40. No aspect of that ordinance, or the DWR standards it incorporates, supports an interpretation that well permits are discretionary. Instead, the statutory scheme imposes fixed technical requirements. When those requirements are met – and appellant does not allege otherwise – issuance of a well permit is a ministerial act. CEQA does not apply to the ministerial act of issuing a well permit.
As illustrated by this case, and others (a number of which are cited in it), CEQA plaintiffs frequently attempt to expand the statute’s reach by characterizing ministerial local ordinance permitting schemes as actually conferring meaningful discretion on the local agency to shape the approval to mitigate environmental concerns. Courts have correctly rejected such attempts where the ordinance merely provides for a determination of conformity with fixed objective standards for permit issuance, or where any “discretion” conferred is not meaningful in the sense of allowing the agency to deny or condition the approval to mitigate environmental damage, or where any discretion allowed does not apply to the challenged project at issue. (See, e.g., Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11, my April 24, 2017 post on which can be found here.) The Court’s opinion here underscores an important point: even though the issuance of ministerial permits may have adverse environmental effects, CEQA simply does not apply to or require environmental analysis of such approvals.
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com.