In a published decision filed August 4, 2026, the First District Court of Appeal (Div. 2) partially affirmed and partially reversed a judgment granting a writ setting aside Sonoma County’s (“County”) 2023 amended groundwater well permit ordinance.  The Court of Appeal rejected the trial court’s determination that County violated the public trust doctrine in approving the ordinance because plaintiffs failed to meet their burden of showing County’s analysis in that regard was arbitrary, capricious or entirely lacking in evidentiary support; however, applying a less deferential standard of review to plaintiffs’ CEQA challenges, it affirmed the trial court’s ruling that substantial evidence failed to support County’s claimed Class 7 and Class 8 categorical exemptions (for actions taken “to assure the maintenance, restoration, or enhancement of a natural resource” or “the environment”) (CEQA Guidelines, §§ 15307, 15308) or the common sense exemption (§ 15061(b)(3).)  Russian Riverkeeper et al. v. County of Sonoma (2026) ___Cal.App.5th___.  (While the Opinion’s main focus – consuming 29 of the Slip Opinion’s 40 pages – was its analysis of why plaintiffs failed to meet their heavy burden of showing County violated the public trust doctrine, this post will per this blog’s standard practice focus primarily on the Court’s CEQA holdings.)

Brief Factual and Procedural Background Relevant to County’s
Groundwater Well Ordinance Amendments

Sonoma County relies on over 45,000 water wells – the most per capita of any California county – to supply the agricultural, residential, commercial, and industrial needs of users in the unincorporated county.  Between 2017 and 2022, the County issued an average of 320 groundwater well permits each year.  County’s groundwater well ordinance, codified in Sonoma County Code Chapter 25B, regulates the “procedures, construction standards and setbacks, destruction, and water treatment” of such wells.  The 2015 version of Chapter 25B provided for issuance of permits on a purely ministerial basis if objective standards were met.  County amended the ordinance in 2023 in an effort to comply with its public trust duties in response to a 2018 appellate decision holding counties share responsibility with the state for administering the public trust (Environmental Law Foundation v. State Water Resources Control Bd. (2018) 26 Cal.App.5th 844, 855, 868) and an ensuing lawsuit.

In connection with amending Chapter 25B to introduce discretionary review for some permits, County adopted a moratorium on new well permits from October 2022 to April 2023 to avoid “an undue rush on well permitting” under the existing ministerial scheme.  County engaged and relied on the work of a policy working group and a separate technical working group, aiming to integrate best available science and policies with robust community and stakeholder input in developing and ultimately adopting the ordinance amendments.  The amended Chapter 25B, which County adopted in April 2023, essentially required discretionary review of water well applications for potential adverse impacts on public trust resources, except as provided.  It created a geographic and mapped “Public Trust Review Area” (“PTRA”) consisting of the area estimated as where the underlying aquifer is interconnected with navigable surface waters or their tributaries, and based on available information that groundwater extraction may impact public trust resources, including instream salmonid habitat.  With certain exceptions for low water use wells (2-acre feet or less per year), existing use wells (limited to historical use with metering, monitoring and conservation measure requirements), and net-zero-increase extraction wells (as defined), the amended ordinance provided that all permits for proposed wells within the PTRA were subject to a discretionary review process (and hence subject to CEQA review), while permits for wells outside the PTRA would continue to be subject to a ministerial review process (and hence not subject to CEQA).

Reasoning that the relevant “baseline” was the ministerial well permitting in effect prior to the moratorium, County found its adoption of the Chapter 25B amendments CEQA-exempt under the Class 7 and 8 categorical exemptions and the common sense exemption.  Plaintiffs filed their writ petition challenging the amended ordinance on both public trust doctrine and CEQA grounds in May 2023.  Finding the relevant baseline to be the temporary moratorium, the trial court granted the petition in full in August 2024, entering an October 30, 2024 judgment invalidating the ordinance amendments and “rescinding” County’s claimed CEQA exemptions.

County timely appealed.  The Court of Appeal affirmed in part and reversed in part.

The Court of Appeal’s Opinion

Key holdings and principles from the CEQA portion of the Court’s opinion include:

• “When an agency concludes an activity is exempt [from CEQA] based on factual considerations, a court reviews for substantial evidence.  If the agency’s determination ‘involves pure questions of law, we review those questions de novo.’ ”  (Quoting Protecting Our Water & Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479, 495, my 8/28/20 post on which case can be found here.)
  
• County failed to carry its burden of proof to sustain the claimed Class 7 and Class 8 categorical exemptions because it failed to cite to substantial evidence in the record “ ‘. . . support[ing] the determination that the Project will assure the maintenance, restoration, or enhancement of the environment’ or a natural resource.”  (Quoting Save Our Big Trees v. City of Santa Cruz (2015) 241 Cal.App.4th 694, 711, my 11/13/15 post on which case can be found here.)
  
• The Class 7 ad 8 categorical exemptions apply to “[t]he prohibition of an activity that evidence shows is associated with ‘environmental problems, . . .’ ” but not to “actions that remove existing wildlife protections, authorize and regulate hunting, or relax existing environmental safeguards [because such actions] do not assure the maintenance, restoration, or enhancement of the environment.”  (Quoting Save Our Big Trees, supra, 241 Cal.App.4th at 707.)
  
• Here, while Chapter 25B regulates private activity that may indirectly benefit natural resources, per the Court, it can’t “be characterized as a preservation activity in a strict sense” (quoting Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 205), and “[e]ven assuming the amendments would have some beneficial impacts, . . . [they] also relax some regulations” such as delaying destruction of existing wells after replacement wells are constructed and allowing for six months of joint use, whereas the prior ordinance required immediate destruction.
  
• The Court rejected County’s argument that its intent to protect the environment supported the exemptions, noting the general policy of narrowly construing exemptions and the irrelevance of such intent under both the case law and CEQA’s definition of “substantial evidence” as excluding “unsubstantiated opinion.”  (Citing CEQA Guidelines, § 15384(a) and Save Our Big Trees, at 710.)
  
• While the Court of Appeal concluded that the trial court erred in considering the environmental baseline to be County’s October 2022 “moratorium on all new wells except for emergency permits,” it also held that that baseline error was irrelevant to the Class 7 and 8 exemptions because, per the Court, “the concept of a baseline is not applicable to the Class 7 and Class 8 categorical exemptions.”  (Citing Save Our Big Trees, at 711.)
  
• Elaborating on its reasoning that the Class 7 and 8 exemptions were unsupported, the Court noted and found significant that 95% of well permit applications would remain subject to ministerial review under the amended ordinance, and that the remaining five percent could, even if denied, be approved on appeal to the County’s Board based on overriding considerations; thus, it found it “speculative to assume that the amendments to Chapter 25B would result in any permit denials or fewer wells.”  Further, it held the record lacked substantial evidence showing the amended ordinance’s required conservation measures would actually decrease groundwater use over time as County “anticipated” and “expected.”
  
• With respect to the “common sense” exception, it applies only “ ‘[w]here . . . there is no possibility that the activity in question may have a significant effect on the environment’ ” (quoting Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 380; CEQA Guidelines, § 15061(b)(3)), and does not apply “if there is a reasonable possibility that a proposed project will have a significant [environmental] effect. . . .”  (Quoting California Farm Bureau Federation v. California Wildlife Conservation Bd. (2006) 143 Cal.App.4th 173, 194.)  “Remote” or “outlandish” possibilities don’t disqualify the exemption, but “legitimate, reasonable questions” about the project’s potential significant impacts do, and the “exemption is reserved for those ‘obviously exempt’ projects, where its absolute and precise language clearly applies.”  (Ibid. (cleaned up).)
  
• The Court observed that, unlike the Class 7 and 8 exemptions, courts have considered the relevant environmental baseline in analyzing whether the common sense exemption applies.  (Citing, e.g., CREED-21 v. City of San Diego (2015) 234 Cal.App.4th 488, 504-507, 510-513.)  Citing case law authorities from the EIR context and CEQA Guidelines § 15125(a) (pertaining to an EIR’s environmental setting description), the Court recited some familiar baseline principles; these include that the baseline is the actually (not hypothetically) existing physical conditions when environmental review commences, that agencies enjoy discretion in measuring the “existing conditions baseline,” and that while applicable regulations may inform the measurement, the predominant factor is “ ‘recent history of actual’ use.”  (Quoting North County Advocates v. City of Carlsbad (2015) 241 Cal.App.4th 94, 105, my 10/13/15 post on which case can be found here.)
  
• Per the Court of Appeal, the trial court erred in finding the moratorium on well permits was the baseline since “not only did Sonoma’s amendment process begin before the moratorium was adopted, but the moratorium represents the then-current regulatory scheme, not “the actually existing physical conditions,” making the number of well permits issued during the moratorium an improper baseline.”  (Citing Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 448, 450, my 8/9/13 post on which case can be found here; Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 336-340.)  The Court accepted plaintiffs’ “suggest[ion]” that the “more appropriate[ ]” baseline would be existing conditions prior to the moratorium, “measured by the number of [then] existing wells . . . [with] their annual water usage, and the resulting groundwater and streamflow conditions.”
  
• The Court rejected plaintiffs’ suggestion that the existing conditions baseline cannot include conditions resulting from “prior illegal conduct” such as County’s alleged past failure to comply with the Public Trust Doctrine.  Noting that the case law cited by plaintiffs – Riverwatch v. County of San Diego (1999) 76 Cal.App.4th 1428, 1453 and Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1120, 1188, 1197 – actually undermined their position, it declined to “pass on the validity of the pre-amendment Chapter 25B in concluding the moratorium is the incorrect baseline.”
  
• Ultimately, the Court held that “regardless of the baseline, Sonoma offers no substantial evidence in support of the common sense exemption” because any assumption that the amended ordinance will result in fewer wells or decrease water use was not supported by substantial evidence, and it could thus not be said “with certainty” that the amendments have “no possibility” of causing a significant environmental impact.

Conclusion and Implications

One might think that a local agency’s comprehensive amendment of a purely ministerial well permitting ordinance to convert it into a partly discretionary one in order to bring more permit applications under a discretionary review process, so as to better protect public trust resources, would qualify as an action taken to assure the maintenance, restoration or enhancement of the environment.  Or, perhaps, at least as one that can be said with certainty not to have any significant adverse environmental effect.

But the Court of Appeal didn’t see it that way.  Maybe the devil is in the details.  The Court narrowly construed the Class 7 and 8 categorical exemptions and strictly applied the requirement that qualifying agency actions cannot relax any existing environmental regulations; it further discounted the County’s extensive technical and policy studies as not providing substantial evidence of any actual environmental improvements being “assured” by the amendments.  Given the opinion’s footnoted observation that the Chapter 25B amendments somewhat relaxed environmentally protective well destruction requirements, its analysis here seems technically correct.

But the Court’s analysis of what constitutes the existing conditions environmental baseline for purposes of the common sense exemption seems lacking to me.  I question its apparent assumption that subjecting some permits to discretionary review, whereas none previously were under the former purely ministerial permitting ordinance, is not an environmental improvement as compared to the prior status quo.  Setting aside the aforementioned well destruction timing nit, it seems to me that a regulatory change of that nature clearly can’t have an adverse environmental impact even if its future benefits can’t be clearly or precisely quantified.

The Court was, of course, absolutely correct to reject plaintiffs’ argument that CEQA’s existing conditions baseline doesn’t encompass conditions caused by illegal activities – a meritless argument often made by CEQA plaintiffs, but one which is clearly inconsistent with the applicable case law.  It also properly rejected the trial court’s determination that the baseline was the moratorium, which caused a temporary lull in permit issuance during which only emergency permits were issued.  More complicated than determining what the baseline wasn’t in this case, however, was the task of determining what it actually was.

County argued on appeal that the baseline “should have been the well permitting in effect prior to the moratorium,” and that argument has legal and logical appeal, but the opinion did not elaborate on how such a baseline would be measured in quantifiable terms.  The Court of Appeal’s acceptance of plaintiffs’ suggestion that the proper baseline was the existing wells and their extractions and impacts just prior to the start of County’s amendment process comes closer to the mark of a correct baseline analysis in my view, but is still wanting in key respects.  If the well permitting ordinance amendments were analyzed like amendments to land use planning documents are analyzed under CEQA, the agency would be required to compare impacts under the amended ordinance to both existing conditions and to the conditions that would have occurred had the former ordinance remained in place; given County’s consistent receipt of over 300 well permit applications year after year, it seems to me the latter comparison would be the most meaningful one for purposes of analyzing the true impacts of the land use ordinance amendments at issue here as County presumably could have chosen to leave its purely ministerial ordinance in the place rather than amending it to better protect public trust resources.  Thus, any meaningful baseline measurement should account for the facts that, prior to the moratorium, County was ministerially issuing water well permits meeting objective requirements at a rate of 320 per year, and that such a rate of permit issuance would presumably continue even absent the adoption of the Chapter 25B amendments; clearly, the amended ordinance did not cause additional permit applications or additional permit issuances or related impacts that would not otherwise have occurred.

All other things being equal, it seems to me that replacing a purely ministerial permitting ordinance with one that requires discretionary review and additional environmental scrutiny, at least for those permit applications deemed most likely to adversely affect the environmental resources of greatest concern, is an action that protects and enhances the environment – and one that can be said with certainty not to adversely affect it.  The Court of Appeal here seemed to stretch a bit to reach a contrary conclusion – with the perverse effect of invalidating what was apparently an environmentally superior permitting ordinance.

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 sixty 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