In a published opinion filed December 15, 2021, the First District Court of Appeal (Div. 5) affirmed a trial court’s judgment entered after sustaining a demurrer to a writ petition in a CEQA action without leave to amend.  Mission Peak Conservancy, et al. v. State Water Resources Control Board (Christopher George, et al, Real Parties in Interest) (2021) ___ Cal.App.5th ___.

Relevant Background

As legal background and context, the law provides a streamlined process for a person to acquire a right to divert from a stream and appropriate relatively small amounts of water – up to 10 acre-feet per year – for domestic (or other specified uses) into a storage facility (such as a pond or tank).  (Wat. Code, §§ 1228-1229.)  The eligible person obtains the right by registering the use with the State Water Resources Control Board (SWRCB), paying a fee, and then putting the water to “reasonable and beneficial use.”  The registration form requires contact information; certain factual details about the use, diversion and storage; a certification that the registrant has provided the registration to the Department of Fish and Wildlife (DFW) and will comply with any conditions that DFW imposed; and a copy of any condition that DFW imposed.  The registration is deemed complete when the SWRCB receives a substantially compliant form and the fee; the completed registration confers on the registrant the right to take and use the amount of water shown on the form, and the right remains effective until forfeited or revoked under specified circumstances.  The SWRCB can set general terms and conditions applicable to all registrations, but given its lack of jurisdiction over individual permits, it has designated the registration process as exempt from CEQA as a ministerial decision.  (23 Cal. Code Regs., § 3730(e).)

The Litigation

Appellant’s operative writ petition challenged the real parties’ facially-complete registration for a small domestic use on an Alameda County property, alleging that the form contained materially false information, and that the SWRCB knew or should have known the project did not qualify.  It contained a single cause of action for CEQA violations, and sought a writ of mandate revoking the registration and compelling the SWRCB to conduct CEQA review.

The Court of Appeal’s Decision

In affirming the trial court’s judgment of dismissal after demurrer, the Court of Appeal noted that CEQA applies only to discretionary, not ministerial, decisions, and that “[t]he test is whether the law governing the agency’s decision to approve the project gives it authority to require changes that would lessen the project’s environmental effects.  [citation.]  If so, the project is discretionary; if not, the project is ministerial.”  (Citing Protecting Our Water & Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479, 493 (POWER); my August 28, 2020 post on that case can be found here.)  Because appellant could not point to any statute granting the SWRCB authority to impose conditions on the challenged registration to lessen its environmental effects, the Court determined the process is ministerial and not subject to CEQA; under the statutory scheme, only general conditions applicable to all permits can be imposed, and the registration is automatically deemed complete and the registrant’s right to take and use the water is secured when the SWRCB receives a substantially compliant registration form with the required fee.  (Wat. Code, §§ 1228.6(a), (b); 1228.3(b); 1228.4(a).)  The SWRCB merely applies a checklist of fixed criteria in determining whether a registration is compliant, which is typical of ministerial actions.  (See CEQA Guidelines, § 15369; POWER, supra, 10 Cal.5th at 489, 493.)

The Court rejected appellant’s three contrary arguments.  First, DFW’s discretion to impose conditions could not be imputed to the SWRCB.  DFW’s review process occurs and its conditions are imposed before SWRCB’s registration process is completed; the board has no authority to alter and must accept those conditions, which simply constitute an item on the SWRCB’s “checklist.”  (Citing Wat. Code, § 1228.6(a)(2), and Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11, 29-30, my April 24, 2017 post on which can be found here.)  Further, contrary to appellant’s argument, POWER “does not remotely suggest that an agency lacking discretionary authority is required to conduct CEQA review because a different agency had such authority.”

Second, appellant’s argument that the SWRCB “had discretion, in a colloquial sense, to deny the project” or require changes to meet program requirements in light of the alleged misrepresentations on the form “misunderstands the test[,]” which “is whether the board had the legal authority to impose environmentally beneficial changes as conditions on the project.”  Appellant pointed to no such authority and simply argued the board “made an erroneous ministerial decision.”  As pointedly observed by the Court:  “CEQA does not regulate ministerial decisions – full stop.”  (Citing Pub. Resources Code, § 21080(b)(1).)

Third, the Court rejected appellant’s “confusing” substantial evidence argument because appellant identified no relevant factual findings of the SWRCB upon which the CEQA exemption turned.

Finally, appellant did not explain how it could amend its petition to state a viable cause of action.  Accordingly, the trial court properly sustained the demurrer without leave.

Conclusion

In brief summation, it appears to me that the First District’s short and pithy opinion correctly decided this case based on a fundamental legal  principle demarcating the reach of CEQA – full stop.  It also appears that the plaintiffs/appellants misconceived CEQA review by the SWRCB – which is plainly unavailable in this context – as a remedy for a registrant’s alleged violations of the terms of a ministerial small domestic use registration.

 

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