By Christina Berglund
The California Supreme Court in Protecting Our Water and Environmental Resources v. County of Stanislaus found that the County of Stanislaus (County) had violated the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) by making a “blanket classification” that all permits issued under Chapter 9.36 of its groundwater well permitting ordinance, other than those requiring a variance, were “ministerial.” The Court found the practice unlawful under CEQA because, “. . . while many of its decisions are ministerial. . . some of County’s decisions may be discretionary.” [Protecting Our Water and Environmental Resources v. County of Stanislaus, ___Cal.5th___, Case No. S. 251709 (Cal. Aug. 27, 2020).]
Factual and Procedural Background
In 1968, the California Department of Water Resources (DWR) issued Water Resources Bulletin No. 74, Water Well Standards: State of California. As revised and supplemented, Bulletin No. 74 has been described as a “90-page document filled with technical specifications for water wells.”
Under Water Code § 13801, subdivision (c), counties are required to adopt well construction ordinances that meet or exceed the standards in Bulletin No. 74. Many counties have incorporated the bulletin’s standards into their well permitting ordinances.
In 1973, the County of Stanislaus enacted Chapter 9.36 of its County Code regulating the location, construction, maintenance, abandonment, and destruction of wells that might affect the quality and potability of groundwater. Many of the permit standards in Chapter 9.36 incorporate by references standard set forth in Bulletin No. 74, including Standards 8.A, 8.B, and 8.C.
Standard 8.A addresses the distance between proposed wells and potential sources of contamination such as storm sewers, septic tanks, feedlots, etc. It requires that all wells “be located an adequate horizontal distance” from those sources and provides specific separation distances that are “generally” considered to be adequate—but allows an agency to increase or decrease suggested distances, depending on circumstances.
Standard 8.B provides that “[w]here possible, a well shall be located up the ground water gradient from potential sources of pollution or contamination.” Under Standard 8.C, “[i]f possible, a well should be located outside areas of flooding.”
Chapter 9.36 of the County Code also allows for variance permits to be issued by the County Health Officer authorizing an exception to any provision of Chapter 9.36 “when, in his/her opinion, the application of such provision is unnecessary.” When authorizing a variance, the health officer may prescribe “such conditions as, in his or her judgment, are necessary to protect the waters of the state.”
In 1983, the County adopted its CEQA regulations generally classifying all well construction permits as ministerial projects absent a variance permit. In 2014, the County amended Chapter 9.37 of the County Code to prohibit the unsustainable extraction and export of groundwater. Chapter 9.37 requires that permit applications also satisfy Chapter 9.36.
Since 2014, the County has had a practice of treating all non-variance permit approvals as ministerial. Plaintiffs sued the County, alleging “a pattern and practice” of approving well permits without CEQA review. Plaintiffs asserted that all permit issuance decisions under Chapter 9.36 are discretionary because the County can:
. . .deny [a] permit or require changes in the project as a condition of permit approval to address concerns relating to environmental impacts.
The trial court ruled that the County’s approval of all non-variance permits was ministerial. The Court of Appeal reversed, concluding that issuance of well construction permits is a discretionary decision, but acknowledged that many of the decisions the County may make under Chapter 9.36 would be ministerial. Nevertheless, the appellate court found that the County’s compliance determination under Standard 8.A involved sufficient discretionary authority to make the issuance of all permits under Chapter 9.36 discretionary—which would trigger CEQA compliance.
The Supreme Court granted the County’s petition for review.
The Supreme Court’s Decision
The Supreme Court began its inquiry by distinguishing discretionary projects from ministerial projects. A project is discretionary if the government can shape the project in any way which could respond to any of the concerns which might be identified” during an environmental review. The Court noted that when a project involves an approval that contains elements of both a ministerial action and a discretionary action, the project will be deemed to be discretionary.
De Novo Review
In setting forth the standard of review, the Supreme Court articulated that because the County’s position that the permits were regardless of the circumstances is based on the County’s legal interpretation of Chapter 9.36, the Court reviews that interpretation de novo.
Standard 8.A Confers County Discretion to Deviate from General Standards
The Court concluded that the plain language of Standard 8.A authorizes the County to exercise judgment or deliberation when it decides to approve or disapprove a permit. Although the standard sets out distances generally considered adequate, individualized judgments may be required. For example, Standard 8.A notes that an:
. . .adequate horizontal distance may depend on ‘[m]any variables’ and ‘[n]o set separation distance is adequate and reasonable for all conditions.
The Court acknowledged that the standard does provide a list of minimum suggested distances, but notes that Standard 8.A expressly provides that “[l]ocal conditions may require greater separation distances.” Moreover, if, in the opinion of the enforcing agency adverse conditions exist, Standard 8.A requires that the suggested distance be increased, or special means of protection be provided. Finally, approval of lesser distances may be allowable by the enforcing agency on a “case-by-case basis.” The Supreme Court concluded that the language in Standard 8.A confers significant discretion on the County to deviate from these general standards depending on the circumstances. Such permit issuance cannot therefore be classified as ministerial.
Limited Discretion is Not the Same Thing as Lacking Discretion
The Supreme Court rejected the County’s argument that permit issuance is ministerial because under Standard 8.A the County may only adjust the location of a well to prevent groundwater contamination. Chapter 9.36 does not allow the County to address other environmental concerns or impose other measures that might prevent groundwater contamination, such as regulating pesticides or fertilizers. In response, the Court stated that “[j]ust because the agency is not empowered to do everything does not mean it lacks discretion to do anything.” That the County has the authority to require a different well location, or deny the permit, is sufficient to make the issuance of the permit discretionary.
The Appropriate Remedy
The Supreme Court, however, disagreed with the appellate court that permits issued under Chapter 9.36 are always a discretionary project. The fact that an ordinance contains provisions that allow an agency to exercise independent judgment in some instances does not mean that all permits are discretionary. The Court observed that sometimes the discretionary provisions are not relevant to a particular permit. For example, Standard 8.A only applies when there is contamination source near a proposed well.
The Supreme Court concluded by reversing the Court of Appeal holding that all permit issuances under Chapter 9.36 are discretionary but finding that plaintiffs were not entitled to a declaration to that effect nor an injunction requiring the County to treat all permit issuances as discretionary. Rather, the Court held that plaintiffs were entitled to a declaration that the County’s blanket ministerial categorization is unlawful:
Accordingly, classifying all issuances as ministerial violates CEQA. Plaintiffs are entitled to a declaration to that effect. But they are not entitled to injunctive relief at this stage, because they have not demonstrated that all permit decisions covered by the classification practice are discretionary.
Conclusion and Implications
In light of this decision, a local agency that categorically classifies the issuance of a particular permit as ministerial may want to review its permitting ordinance to ensure that it complies with the Supreme Court’s holdings. When an ordinance contains standards which, if applicable, give an agency the required degree of independent judgment, the agency may not categorically classify the issuance of permits as ministerial. But the agency may classify a particular permit as ministerial and develop a record in support of that classification. The Court’s opinion is available online at:
https://www.courts.ca.gov/opinions/documents/S251709.PDF
