Upholding the decision of the lower court, the Second District Court of Appeal held that the County of San Luis Obispo’s approval of permits to construct wells was a ministerial act under the county’s code of ordinances, and thus, exempt from the California Environmental Quality Act (CEQA). [California Water Impact Network v. County of San Luis Obispo, ___Cal.App.5th___, Case No. B283846 (2nd Dist. June 28, 2018).]
Factual and Procedural Background
In 2016, the County San Luis Obispo issued permits to construct wells on land belonging to four agricultural enterprises, most of which was vineyards. The county authorized the wells without conducting a CEQA review based on its determination that the approvals were ministerial acts.
The petitioner filed a petition for writ of mandate alleging that the decision was a discretionary action, and review under CEQA was required in order to analyze direct and cumulative impacts to groundwater supply. The county prevailed on demurrer and the petitioners appealed.
The Court of Appeal’s Decision:
Issuing the Well Permits was a Ministerial Act
After noting that CEQA expressly applies only to projects subject to discretionary approval, and thus, does not apply to ministerial acts, the court explained the difference between “discretionary” and ““ministerial” approvals. As stated in the CEQA Guidelines, discretionary actions are those that require the exercise of judgment or deliberation, and not situations where the agency merely determines whether there has been conformity with applicable statutes, ordinances, or regulations. A ministerial action, in contrast, is one involving little or no personal judgment by the public official as to the wisdom or manner of carrying out the project; the public official merely applies the law to the facts as presented, but uses no special discretion or judgment in reaching a decision. Even if environmental review would reveal environmental consequences, a ministerial approval is not subject to CEQA because the agency lacks the legal authority to shape the project to respond to environmental concerns.
The court then reviewed the county’s approvals to determine whether they were ministerial or discretionary. The court explained that local agencies generally determine whether acts are ministerial or discretionary by analyzing their own laws and their view of the scope and meaning of their ordinances is entitled to great weight, unless that view is clearly erroneous or unauthorized. Here, under the county’s well construction ordinance, well permits “shall be issued” if they are consistent with the Department of Water Resource’s (DWR) minimum, statewide well construction standards and meet other specified requirements. Based on its review of the ordinance, the court found that as long as the technical standards and objective measurements are met, the county must issue a well permit to any applicant. Because this process leaves scant room for the county to impose its personal judgment and discretion, the issuance of the permits was a ministerial act.
In reaching this determination, the court rejected a myriad of arguments that there was room for the county to exercise discretion under its ordinance. First, the court rejected the petitioner’s argument that the Department of Water Resource’s standards granted the county discretion, finding that the standards relate to preserving groundwater quality, not depletion from overuse. The court also rejected the petitioner’s contention that the county could impose additional conditions, such as pump limits and subsidence monitoring, because the ordinance does not authorize the county to do so. Additionally, the court determined that an instruction to applicants to include all necessary information to ensure that groundwater resources are protected did not transform the inquiry into a discretionary decision. The sub-context of this provision is whether groundwater will be protected from contamination or pollution during well construction, not from depletion by overuse, and was therefore not part of the county’s decision.
The court concluded that no aspect of the county’s well ordinance, or the DWR standards it incorporates, supported an interpretation that well permits are discretionary. Instead, the statutory scheme imposed fixed technical requirements and, when those requirements are met, issuance of a well permit is a ministerial act. Accordingly, the petitioners had not and could not plead a cause of action requiring county to comply with CEQA before issuing the permits.
Conclusion and Implications
The decision reiterates principles of CEQA jurisprudence concerning ministerial and discretionary approvals. When a local ordinance requires that a permit be issued if the applicant satisfies specified criteria, and does not provide the agency discretion to shape or deny the application if those criteria are met, the approval the permit will be ministerial and exempt from CEQA. The court’s original decision was ordered not to be published, but later ordered to be published verbatim. See, https://scholar.google.com/scholar_case?case=12629905843828386573&q=California+Water+Impact+Network+v.+County+of+San+Luis+Obispo&hl=en&as_sdt=2006&as_vis=1
(Sara Dudley, Chris Stiles)
