Well construction permits in Stanislaus County are issued under an ordinance that incorporates the California Department of Water Resources’ (DWR’s) well construction standards. Prior to the Supreme Court’s recent decision in Protecting Our Water and Environmental Resources v. County of Stanislaus (Aug. 27, 2020, S251709)__Cal.5th__, the County categorically classified well construction projects that did not require a variance as ministerial, rather than discretionary. Ministerial projects—i.e., projects that involve no agency discretion—are exempt from CEQA. The plaintiffs, challenged the County’s categorization, alleging that all County well construction permits are discretionary projects requiring CEQA review. The Supreme Court held that the County’s “blanket classification” that all nonvariance permits are ministerial violated CEQA. Rather, CEQA requires the County to determine whether the issuance of a well permit is ministerial on a case-by-case basis.
CEQA does not apply to “[m]insterial projects proposed to be carried out or approved by public agencies.” (Pub. Resources Code, § 21080, subd. (b)(1).) “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.” (14 Cal. Code Regs. (“CEQA Guidelines”), § 15369, italics added.) Rather than exercise judgment, for ministerial approvals, “[t]he public official merely applies the laws to the facts as presented but uses no special discretion or judgment in reaching a decision.” (Ibid.)
A a project is discretionary, in contrast, if the approval requires exercise of judgment or deliberation. “The key question is whether the public agency can use its subjective judgment to decide whether and how to carry out or approve [the] project.” (CEQA Guidelines, § 15357.)
DWR has issued Water Resources Bulletin No. 74, Water Well Standards: State of California, described as “‘a 90-page document filled with technical specifications for water wells.’” The California Water Code requires counties 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.
Stanislaus County’s groundwater ordinance, which regulates the location, construction, maintenance, abandonment, and destruction of wells, incorporates many of the standards set forth in Bulletin No. 74, including:
- Standard 8.A (re well distance from contamination sources): All wells must “‘be located an adequate horizontal distance’” from potential sources of contamination. For example, a well should be located at least 50 feet from any sewer line, and 150 feet from any cesspool or seepage pit. Agencies may increase or decrease the suggested distances, however, depending on circumstances. Determining “‘the safe separate distance for individual wells requires detailed evaluation of existing and future site conditions.’”
- Standard 8.B: “‘[W]here possible, a well shall be located up the ground water gradient from potential sources of pollution or contamination.’”
- Standard 8.C: “‘[I]f possible, a well should be located outside areas of flooding.’”
- Standard 9: A well’s “annular space” must be “‘effectively sealed’” and the well must be located at established minimum surface seal depths.
The County’s ordinance also allowed the county health officer to waive these and other requirements when, in his or her opinion, the provisions were unnecessary. When authorizing such a variance, the health officer could prescribe additional conditions that the health officer deemed necessary to protect water resources.
In 1983, the County adopted CEQA regulations which, broadly-speaking, classified well construction permits as ministerial projects, except for well construction projects that required a variance. Permits requiring a variance were designated discretionary, and thus triggered environmental review. In practice, the County treated all nonvariance permits as ministerial.
Plaintiffs sued the County, alleging “a pattern and practice” of approving well permits without CEQA review. Plaintiffs asserted that all well permits issued under the County’s groundwater ordinance are discretionary because the County may “deny [a] permit or require changes to the project as a condition of permit approval to address concerns relating to the environmental impacts.”
The Supreme Court’s Decision
The Court explained that in determining whether the County’s issuance of well permits is discretionary, it is guided by the principle that CEQA must be interpreted “‘to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.’” Additionally, the Court observed, one purpose of CEQA is to reduce or avoid environmental damage by requiring project’s changes when feasible. Against this backdrop, the Court held the County violated CEQA by categorically classifying nonvariance well permits as ministerial. Instead, held the Court, the County must decide whether a well permit is ministerial on a case-by-case basis.
The Court reasoned that the plain language of Bulletin No. 74’s standards incorporated into the County’s groundwater ordinance required the exercise of judgment. For instance, Standard 8.A requires the health officer to determine the “‘adequate horizontal distance,’”—a judgment that may depend on “‘[m]any variables.’” Further, Standard 8.A states that “‘[n]o separation distance is adequate and reasonable for all conditions.’” And, although the standard provides a list of minimum suggested distances, the standard also states that ‘[l]ocal conditions may require greater distances.’” Moreover, the standard allows for lesser distances which may be approved “‘on a case-by-case-basis.’”
The Court found Standard 8.A “confers significant discretion on the county health officer to deviate from the general standards,” depending on the proposed permit’s unique circumstances. It is clear from the County’s ordinance, which incorporates Bulletin 74’s standards, that the County “may shape a construction project in response to concerns that could be identified by an environmental review.” Thus, held the Court, a permit that required the County to exercise its independent judgment under Standard 8.A. is not properly classified as ministerial.
The County argued that Standard 8.A is part of a much larger regulatory scheme, which, when read as a whole, allows little or no judgment in determining whether a well permit may be issued. The Court rejected this argument as inconsistent with the CEQA Guidelines, which provide 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.’ (CEQA Guidelines, § 15268, subd. (d).)” Further, noted the Court, when there is doubt, an approval should be treated as discretionary, in service to CEQA’s environmental protection goals.
The County further argued that the issuance of well permits is ministerial because the County’s ability to mitigate potential environmental damage under the ordinance is highly constrained. The County posited, for instance, that Standard 8.A only allows the health officer to adjust the location of the well to prevent groundwater contamination. The ordinance does not allow the County to address other environmental concerns, such as groundwater depletion, or to impose other measures to prevent contamination, such as regulating the use of pesticides or fertilizers. Unpersuaded, the Court explained that “[j]ust because the agency is not empowered to do everything does not mean it lacks discretion to do anything.” Although the groundwater ordinance does not authorize the County to impose other mitigation measures, that does not mean the permit is ministerial.
The Court also rejected the County’s argument that the Court should hold the permits are ministerial in deference to the County’s determination. The Court explained that although case law suggests a local agency’s interpretation of its own ordinance may be entitled to deference, here, the relevant standards come from DWR’s Bulletin No. 74, not just a local ordinance. Furthermore, although the courts will defer to an agency’s factual determinations supporting a conclusion that a given approval is ministerial, the County’s determination in this case was based solely on the County’s legal interpretation of Bulletin No. 74’s requirements. The Court need not defer to a local agency’s interpretation of state law.
The Court was also unpersuaded by the County’s argument that a decision in plaintiffs’ favor will increase costs and delays in the issuance of well permits. The Court explained that “CEQA cannot be read to authorize the categorical misclassification of well construction permits simply for the sake of alacrity and economy.” Furthermore, observed the Court, even though CEQA review may be required for some well permits, this does not mean that an EIR would necessarily be required. Rather, the County may be able to approve a well permit by relying on another categorical exemption or preparing a negative declaration or mitigated negative declaration.
Lastly, although the Court disagreed that the County’s well permits are categorically ministerial, the Court also rejected plaintiffs’ claim that the permits are always discretionary. In some circumstances, the Court reasoned, the County’s issuance of a well permit might not require the exercise of judgment. For example, Standard 8.A only applies when there is nearby contamination. If no contamination source is identified during the permit approval process, the discretion conferred by Standard 8.A would not come into play. This, in turn, would mean that the permit may be ministerial.