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More California Cities Eliminate Parking Minimums to Promote Low Carbon Transportation and Affordable Housing

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Cities in California are eliminating parking minimum requirements and beginning to implement parking maximums for new construction projects. The hope is that these changes will promote low carbon modes of transportation, such as public transit, biking, and walking and increase affordable housing.

Parking minimums are deeply rooted in planning regulations and city codes. Proponents of eliminating these requirements emphasize that parking minimums can contribute to an overreliance on automobiles, which stunts progress toward more walkable and public transit-oriented development and planning. There is also concern that parking minimums contribute to urban sprawl because the physical space required for parking forces new developments farther from city centers, and that parking minimums encourage less dense development. These concerns have prompted numerous cities throughout the state to revisit their parking policies.

For example, in January 2021, the Sacramento City Council voted to approve citywide zoning reforms in its General Plan, including abolishing parking minimums. Sacramento also pledged to begin studies on parking maximums. These changes will still need to be codified in the city’s zoning code, which will likely be voted on later this year. The city’s shift is designed to reduce car trips, allow more efficient use of land, and provide the density and ridership necessary to support more transit services, which will reduce vehicle miles travelled (VMT) and GHG emissions. Sacramento also hopes that reducing parking in the city will create more space for pedestrian, bicycle, and transit infrastructure, which will help incentivize those modes of travel over single-occupancy vehicles. Public comments at the City Council meeting included some criticism of increasing density, but most comments were supportive of the city’s decision.

Also in January 2021, City of Berkeley officials voted to eliminate off-street parking requirements for new developments. The city determined that parking minimum requirements often thwart the construction of new housing. The city’s changes include exceptions for neighborhoods at risk for fire danger and streets that are narrower than 26 feet. The city also implemented parking maximums in transit-rich areas. Off-street residential parking cannot be offered at a rate of more than 0.5 spaces per unit for projects located within 0.25 miles of a high-quality transit corridor.

In 2018, San Francisco passed an ordinance that eliminated parking minimums citywide, for all uses. Parking is no longer required for any new developments anywhere in San Francisco. Most use types are also prohibited from providing more than 0.5–1.5 spaces, depending on the zoning of the district.

Critics of the elimination of parking minimums are concerned about areas that lack public transit options. This concern is one of the reasons that some cities have not eliminated minimums. In Los Angeles, for example, the public transit system lacks service in many areas and provides much longer travel times than single-occupancy vehicles. Parking minimums in the city require most apartments to provide one or two parking spots per unit and commercial properties are required to have one space for every 100 to 200 square feet, which often amounts to more space for parking than the business itself. Los Angeles’ lack of public transit and sprawling landscape, however, make it more difficult for the city to implement city-wide changes to its parking requirements.

The current housing crisis is another reason some cities are revisiting their parking policies. The elimination of parking minimums for new developments can promote construction of affordable housing. Parking minimums are costly for developers and limit design options. Parking also takes up a substantial amount of space, which reduces the number of housing units that can be built for a given project. Fewer parking spaces could mean more units built per project, with more of those units being designated as affordable. Urban landscapes in California may become more affordable and less polluted as these trends continue to unfold throughout the state.

Supreme Court of the U.S. Holds that Draft Biological Opinions that are Pre-decisional and Deliberative Are Protected from Disclosure Under FOIA By the Deliberative Process Privilege

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On March 4, 2021, the Supreme Court of the United States in United States Fish and Wildlife Service v. Sierra Club, Inc. (2021) 141 S.Ct. 777, in an opinion written by newly appointed Justice Barrett and joined by Justices Roberts, Thomas, Alito, Kagan, Gorsuch, and Kavanaugh, reversed in part the Ninth Circuit Court of Appeals’ decision in holding that the deliberative process privilege protects Draft Biological Opinions (B.O.s) from disclosure under the Freedom of Information Act (FOIA) if the Draft B.O.s are pre-decisional and deliberative, even if they represent an agency’s last views on a proposed action.

BACKGROUND

In 2011, the U.S. Environmental Protection Agency (EPA) proposed a rule on the design and operation of cooling water intake structures intended for use in industrial facilities, to make use of technology to minimize adverse environmental impacts. (See 79 Fe. Reg. 22174 (2001).) Even still, these cooling structures would kill a certain amount of fish and other aquatic species, some of which might be federally protected (threatened or endangered). Accordingly, under Section 7 of the Endangered Species Act (ESA), the EPA consulted with the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS), both of which began preparation of Draft B.O.s in order to make their jeopardy determinations, i.e., whether or not the EPA’s proposal would jeopardize the continued existence of a protected species. Informal consultation with these agencies began in 2012 and formal consultation began in 2013. Multiple documents were exchanged between agencies during this time.

In November 2013, the EPA revised its proposed rule in response to consultation, and USFWS/NMFS tentatively agreed to provide the EPA with their Draft B.O.s by December 6th and Final documents by December 20th. Both Draft B.O.s concluded that the proposed rule likely would jeopardize protected species. Neither agency formally approved their Draft B.O. or presented them to the EPA by the deadline and, instead, both agencies concluded that more work needed to be done. As well, the EPA was still internally debating its rule, therefore all parties agreed to extend the period of consultation.

By March 2014, the EPA had revised its proposed rule again from the 2013 version, in a manner that allowed USFWS/NMFS to issue a joint no-jeopardy determination, after which the EPA issued its final rule that same day. Sierra Club made FOIA requests to USFWS/NMFS regarding their consultation on this rule, and both agencies invoked the deliberative process privilege for the Draft B.O.s of EPA’s 2013 proposed rule. Sierra Club sued in the Northern District of California, and won on this issue. The Ninth Circuit affirmed the trial court’s decision on this issue. The Supreme Court grant certiorari.

ANALYSIS

FOIA mandates the disclosure of documents held by federal agencies upon request unless one of nine exemptions apply. One such exemption is the deliberative process privilege, which protects documents from FOIA requests if they reflect an agency’s preliminary thinking about an issue, as opposed to its final opinion. The deliberative process privilege exists to encourage agency candor so as to improve decisionmaking and avoid the “chilling effect” that can occur when an agency believes its internal discussion may be made public. Pre-decisional, deliberative documents are exempt from disclosure under this privilege, whereas documents indicating final agency opinion must be disclosed. This does not mean, however, that the last document prepared by the agency is necessarily a final document.  As Justice Barrett put it, sometimes a document does not present a final opinion upon which an agency has settled and is only considered final at all because nothing else follows it, because the proposed action upon which it is based “dies on the vine.” Further, whether or not the agency producing the document treats it as final is a primary determining factor.

Here, the Sierra Club contended that the 2013 Draft B.O.s, with their jeopardy determinations, must be considered final under prior precedent because they forced the EPA to change its rule in response. According to Justice Barrett, however,  the precedent cited by Sierra Club was inapposite and the Draft B.O.s prepared in response to the EPA’s 2013 proposed rule were simply draft documents that “died on the vine” when the EPA changed its rule in 2014, and did not represent final agency opinions. She reasoned that, because the 2013 Draft B.O.s were not made available to the EPA, they were still “subject to change.” Even if they had been made available to the EPA, existing regulations would still allow them to be revised. Justice Barrett further found that the gap in time between due dates for the 2013 Draft B.O.s and their Final counterparts indicated their deliberative nature, for why would there be a two-week gap between draft and final unless revisions were anticipated? Mostly though, the court relied on the fact that neither the USFWS nor NMFS had finalized their 2013 Draft B.O.s—they were unapproved by agency decisionmakers and not forwarded to the EPA—as evidence showing that the agencies did not view them as final and thereby proving their lack of finality. These documents then were not really Draft B.O.s but instead were “drafts of draft[s].” They may have contained the last words on the 2013 proposed rule but were not intended to be final.

DISSENT

Justice Breyer penned a dissent, joined by Justice Sotomayor, in which he questioned the majority’s position that the documents were “drafts of drafts,” and asserted that Draft B.O.s do not normally “enjoy” the deliberative process privilege. The dissent preferred a more in-depth factual analysis to determine finality of the documents, and would have liked the question remanded to allow the Ninth Circuit to determine exactly how much more work needed to be done on the draft documents to establish whether they were closer to draft or final documents. Justice Breyer also noted the long agency history of disclosing Draft B.O.s to the public.

– Casey Shorrock

First District Holds that Deficiencies in Notice Did Not Excuse CEQA Litigants from Exhausting Available Administrative Remedies

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The First District Court of Appeal in Schmid v. City and County of San Francisco (Feb. 1, 2021) 60 Cal.App.5th 470, held that Appellants’ CEQA claims were barred by their failure to exhaust available administrative remedies, even where deficiencies in the notice excused the litigants from satisfying the exhaustion requirements under Public Resources Code section 21177.

BACKGROUND

The “Early Days” statue, located in San Francisco’s Civic Center, is part of the “Pioneer Monument”—a series of five bronze sculptures memorializing the pioneer era when California was founded. The statue depicts three figures, including a reclining Native American over whom bends a Catholic priest. Public criticism has surrounded the statue since its installation in 1894.  

In 2018, after charges of the statue’s racial insensitivity resurfaced, the San Francisco Arts Commission and the San Francisco Historic Preservation Commission (HPC) granted a Certificate of Appropriateness (COA) to remove the statue and place it in storage. In granting that approval, the HPC determined the removal of the statue was categorically exempt from CEQA. There were no issues raised at the HPC hearing about a perceived need for environmental review. Nor were there any appeals of HPC’s CEQA determination to the San Francisco Board of Supervisors. 

Appellants, two opponents of the statue’s removal, appealed the HPC’s adoption of the COA to the San Francisco Board of Appeals. The Board of Appeals initially voted to overturn the COA, but later had it reinstated. After the Board of Appeals approved the COA, the City immediately removed the statue the following morning. 

Appellants filed suit seeking to overturn the Board of Appeals’ order authorizing removal of the statue. They alleged violations of constitutional and statutory law, including CEQA. The trial court sustained a demurrer without leave to amend. On the CEQA claims, the trial court found Appellants failed to exhaust available administrative remedies. Appellants appealed.

COURT OF APPEAL’S DECISION

Exhaustion of Administrative Remedies
The Court of Appeal explained that CEQA litigants must comply with two exhaustion requirements. First, Public Resources Code section 21177 requires that a would-be CEQA petitioner must object during the administrative process and that all allegations raised in the litigation must have been presented to the agency before the challenged decision is made. Second, a would-be CEQA petitioner must exhaust all remedies that are available at the administrative level, including any available administrative appeals. Under Public Resources Code section 21151, a CEQA determination made by a nonelected decision-making body of a local agency may be appealed to the agency’s elected decision-making body, if any. The CEQA Guidelines encourage local agencies to establish procedures for such appeals. As relevant here, the San Francisco Administrative Code requires that appeals of CEQA determinations must be made to the Board of Supervisors, as the body of elected officials responsible for making final CEQA determinations.

The Court of Appeal found Appellants failed to comply with both exhaustion requirements. They did not object to the HCP’s determination that the project was categorically exempt from CEQA during the administrative process and they did exhaust administrative appeals available under the San Francisco Administrative Code. Specifically, on the second point, although Appellants appealed the HPC’s decision to the Board of Appeals, they failed to exhaust available remedies because they did not separately appeal the HPC’s CEQA determination to the Board of Supervisors, as required under the City’s Code.

Appellants argued they were excused from both exhaustion requirements because the City failed to provide adequate notice. The court agreed with Appellants in part, finding that Appellants were not required to comply with the statutory exhaustion requirements in section 21177 because there was no notice in advance of the HPC meeting that a categorical exemption might be on the agenda. But, the court explained, the inadequate CEQA notice did not excuse Appellants from complying with the requirement in the City’s Code that CEQA determinations must be appealed to the Board of Supervisors. The court also noted that Appellants had notice of the HPC’s CEQA determination because they appealed it, improperly, to the Board of Appeals. Because Appellants failed to appeal the CEQA determination to the appropriate body, they forfeited their right to bring a CEQA action.

Futility Argument
Appellants also argued they should be excused from exhausting their administrative remedies because doing so would have been futile. Citing a Board of Supervisors resolution that was not in the record, Appellants argued that an appeal to the proper board would have been futile because the Board of Supervisors already adopted a definitive position that the statue should be taken down. The court rejected this argument, stating that even if the Board of Supervisors held this view as a policy matter, it still could have disagreed with the process of removal and opted for an EIR. In addition, the Court concluded that the Board of Supervisors was never presented with any arguments concerning the appropriateness of a categorical exemption, and thus any argument regarding how the Board of Supervisors would have responded was pure speculation.

– Veronika Morrison 

Sixth District Holds City’s Failure to Send Notice of Determination Did Not Excuse Plaintiff’s Failure to Name Indispensable Party Within Limitations Period

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The Sixth District Court of Appeal in Organizacion Comunidad de Alviso v. City of San Jose (Feb. 9, 2021) 60 Cal.App.5th 783, held that the City of San Jose’s failure to send a Notice of Determination to a member of the petitioner organization, in violation of Public Resources Code section 21167, subdivision (f), did not excuse the petitioner’s failure to name an indispensable party in a CEQA action before the statute of limitations expired.

BACKGROUND

A light industrial center project was planned for construction on a primarily fallow farmland site in San Jose. Mark Espinoza, a member of the petitioner organization, Organizacion Comunidad de Alviso, requested that the City’s environmental project manager place him on the list to receive the Notice of Determination (NOD) for the Project.
Later that month, Microsoft Corporation purchased land from the original owner and took over as the project applicant. The San Jose City Council initially approved the project and associated EIR at an October 2017 meeting. The meeting agenda incorrectly referenced the previous landowner instead of Microsoft. Microsoft was, however, correctly referred to as the project applicant at the hearing. A second meeting was held to reconsider the project approval and EIR in December 2017. The notice for that hearing correctly identified Microsoft as the property owner, but the resolution approving the project incorrectly referenced the previous owners.

The City filed two NODs for the project. The first NOD, which was sent to Espinoza, listed the wrong project applicant. The City later realized the mistake and issued a second NOD that correctly listed Microsoft as the applicant. The City did not send Espinoza the second NOD.

The petitioner filed a petition for writ of mandate within 30 days of the first NOD, alleging violations of CEQA and the Planning and Zoning Law. The petition named the previous property owners as real party in interest, based on the information in the first NOD. Two weeks after the 30-day statute of limitations for the CEQA cause of action expired, the previous owners’ attorney notified the petitioner’s counsel that Microsoft had acquired the property and was named as the applicant in the second NOD. A month after receiving this notice—and well after the 30-day limitations period had run—the petitioner filed an amended petition naming Microsoft as a real party in interest.

Microsoft and the City demurred to the CEQA action in the amended petition, arguing that it was time-barred because petitioner failed to name Microsoft as the real party in interest before the limitations period expired. The trial court determined that the initial petition was defective for failing to join Microsoft, and consequently dismissed the CEQA cause of action as untimely.

COURT OF APPEAL’S DECISION

Failure to Name Applicant in NOD as Real Party in Interest
Under Public Resources Code section 21167.6.5, subdivision (a), in addition to naming as a defendant the agency that approved the project, a petitioner must name as a real party in interest the “person or persons identified by the public agency” in the NOD. Here, the petitioner did not dispute that Microsoft was a necessary and indispensable party under CEQA because it was named as the applicant in the NOD. Instead, the petitioner argued that its failure to name Microsoft should be excused because the NOD sent by the City named the wrong party and the City did not resend the new NOD after the error was corrected. The court disagreed.

Although the court acknowledged the City violated Public Resources Code section 21167, subdivision (f), by failing to send the second, corrected NOD to Espinoza, it concluded that CEQA contains no relief for the City’s violation. The court ruled that the City’s violation could not excuse or cure the amended petition’s untimeliness because Public Resources Code section 21167, subdivision (f), itself provides that the “date upon which [the NOD] is mailed shall not affect” the statute of limitations. The court also cited the Supreme Court’s emphasis that potential CEQA litigants must pay close attention to NOD filings before initiating litigation.

Additionally, the court reasoned that the second NOD was properly filed with the county clerk, posted at the county clerk’s office, and made available for review by all potential litigants—thereby providing constructive notice of the correct parties to name in a potential action. The court further noted that petitioner had actual notice of Microsoft’s status as the applicant because it had participated in the public hearings at which Microsoft was identified and the public notice for the City’s re-approval hearing listed Microsoft as the owner.

Because the petitioner failed to name Microsoft within the 30-day statute of limitation period after the corrected NOD was filed, the court held that the trial court’s dismissal was appropriate.

Material Defect
The petitioner also argued that the 30-day statute of limitations was not triggered because the NOD was materially defective, and therefore, the 180-day limitations period should apply. The court easily rejected this argument because the petitioner did not claim that the second NOD was insufficient or incorrect. The petitioner only claimed that the posting of two contradictory NODs essentially amounted to an NOD defect. The court disagreed, determining that the second NOD contained all required information and was therefore not defective.

Relation-Back Doctrine
The court also disagreed with the petitioner’s argument that the relation back doctrine under Code of Civil Procedure section 474 should apply. The court determined the petitioner’s ignorance of Microsoft’s status as the project applicant was unreasonable because the second NOD was correct and provided constructive notice of Microsoft’s identity. Additionally, the petitioner had received actual notice of the second NOD from the former owners’ attorney and still proceeded to wait two months to file its amended petition—a delay, which the court pointed out, was longer than even the initial limitations period.

Estoppel
Finally, the court rejected the petitioner’s argument that the City and Microsoft should have been equitably estopped from asserting the statute of limitations defense. It concluded that even if the City’s failure to send Espinoza the second NOD was intentional, the petitioner’s reliance on that failure would be unreasonable. Again, the City’s timely filing of the second NOD with the county clerk’s office gave all potential litigants constructive notice of the correct parties to name in a CEQA action.

– Veronika Morrison

First District Holds Regional Water Quality Control Board’s Failure to Impose Mitigation Requirements Through CEQA Process Did Not Preclude it from Later Imposing Those Requirements Pursuant to Its Authority Under the Porter-Cologne Act

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The First District Court of Appeal in Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board (2020) 59 Cal.App.5th 199, held that CEQA did not preclude the San Francisco Bay Regional Water Quality Control Board, acting as a responsible agency under CEQA, from imposing additional waste discharge requirements via the Porter-Cologne Water Quality Control Act, beyond the mitigation measures imposed during the CEQA process.

Background

Every 10-20 years, the Upper Berryessa Creek—which drains from the Diablo Range Hills to the Coyote Creek tributary, and ultimately into the San Francisco Bay—floods the nearby areas of Milpitas and San Jose. In the 1980s, the U.S. Army Corps of Engineers began working on plans to build a flood control project on the creek, but the project did not move forward until 2013, when construction of a nearby BART station that could be impacted by flooding was proposed.

In 2015, the Santa Clara Valley Water District (District), acting as the lead agency under CEQA, issued a Draft EIR for the project. That same month, the Corps applied to the San Francisco Bay Regional Water Quality Control Board (RWQCB) for a section 401 Clean Water Act certification for the project.

The District later issued the Final EIR for the project, and the RWQCB’s executive officer issued the section 401 certification. As a CEQA responsible agency, the RWQCB found that all impacts within its jurisdiction would be mitigated to less-than-significant levels but clarified that it would later consider waste discharge requirements (WDRs) pursuant to its authority under the Porter-Cologne Act to address impacts to waters and wetlands that were not handled by the section 401 certificate.

In 2017, when project construction was nearly complete, the RWQCB issued a WDR order that required the Corps and the District to provide addition mitigation for the project’s impacts to waters and wetlands. The order stated that it suspended and replaced the prior 401 certification.

The District filed a petition for writ of mandate against the RWQCB, challenging the WDR order under CEQA, as well as section 401 of the Clean Water Act, the Porter-Cologne Act, and other state laws. The trial court denied the petition. The District appealed.

Court of Appeal’s Decision

On appeal, the District argued the RWQCB violated CEQA because: (1) the RWQCB’s failure to impose mitigation requirements as part of the RWQCB’s CEQA review barred it from imposing mitigation via the WDR order; and (2) the RWQCB prejudicially abused its discretion by failing to support the mitigation requirements with substantial evidence. The Court of Appeal rejected both arguments.

Relying on CEQA Guidelines section 15096, the District argued that the RWQCB’s only opportunity to impose mitigation was through the CEQA process. CEQA Guidelines section 15096 provides that a responsible agency that disagrees with the adequacy of a lead agency’s EIR must either sue the lead agency within 30 days, be deemed to have waived any objections to the EIR, prepare a subsequent EIR if legitimate grounds exist, or, assume the role of a lead agency as provided by Guidelines section 15052, subdivision (a)(3). Because the RWQCB did not challenge the District’s certification of the EIR or find that a subsequent EIR was required, the District argued that the EIR was deemed adequate and no additional mitigation measure could be imposed. As explained by the court, however, Public Resources section 21174 includes a savings clause that makes clear that CEQA does not prevent an agency from exercising it independent authority under statutes other than CEQA. The court determined, therefore, that the RWQCB did not violate CEQA by issuing the WDRs because it did so pursuant to its duties under the Porter-Cologne Act. Although the District, acting as lead agency, had not imposed CEQA mitigation measures requiring WDRs, the RWQCB, as a responsible agency, was not precluded from separately discharging its authority under the Porter-Cologne Act. Although the appellate court noted that unified CEQA review and other environmental regulation should be the norm, there may be times when an agency’s own environmental regulation can take place after CEQA review, as recognized by Public Resources Code section 21174.

The court also rejected the District’s claim that the RWQCB’s WDR order imposed “excessive” mitigation that was not supported by substantial evidence. The court concluded that the District failed to engage in sufficient analysis of the evidence supporting the RWQCB’s conclusions, and therefore, failed to carry its burden. The court also concluded that the District’s arguments lacked merit even if they had been properly briefed because the RWQCB’s determinations were supported by substantial evidence.

– Bridget McDonald

Fifth District Court of Appeal Upholds Trial Court’s Refusal to Order Partial Decertification of EIR, Noting Conflict With Other Districts

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In Sierra Club v. County of Fresno (2020) 57 Cal.App.5th 979, a partially published opinion, the Fifth District Court of Appeal upheld the trial court’s refusal to issue a narrow writ following the California Supreme Court’s ruling in Sierra Club v. County of Fresno (2018) 6 Cal.5th 502 (Friant Ranch). Rejecting the concept that an EIR can be partially decertified, the court determined that the trial court properly directed the County to decertify the entire EIR and vacate the project approvals. In the alternative, the court held that, even if the partial decertification of an EIR can sometimes be an available remedy, that remedy was not available in this case.

The underlying Friant Ranch case involved a CEQA action challenging a proposed master-planned community in Fresno County (“the project”). In 2018, the Supreme Court ruled that the EIR for the project violated CEQA because it failed to include an adequate discussion of public health impacts from air pollutants generated by the project, and ordered the Court of Appeal to “remand the matter for additional proceedings consistent” with its opinion. On remand, the trial court issued a writ of mandate ordering the County to “[v]acate or set aside” the project approvals, “and not approve the project before preparing a revised EIR.” Real Party in Interest, Friant Ranch L.P., and the County filed a motion to vacate and reconsider the judgment and writ, arguing that the trial court drafted an overbroad writ, and should have only partially decertified the EIR, leaving most of the project’s approvals in place. The trial court denied the motion and this appeal followed.

The Court of Appeal upheld the trial court’s judgment and writ on two alternative grounds. First, the court held that an EIR cannot be partially decertified under Public Resources Code section 21168.9, subdivision (a), and the County therefore was required to decertify the entire EIR and vacate the project approvals. That section gives courts the authority to direct an agency “to void, in whole or in part, a determination, finding or decision made in violation of CEQA” (emphasis added).  But, the court reasoned, Public Resources Code sections 21100, subdivision (a) and 21151, subdivision (a), and Guidelines section 15090, subdivision (a)(2), require public agencies to certify “the completion of the EIR” in compliance with CEQA. Thus, the court found that an EIR cannot be partially certified; it is either complete or not.

The court cited its opinion in LandValue 77, LLC v. Board of Trustees of California State University (2011) 193 Cal.App.4th 675 (LandValue 77), where it previously held that partial certification of an EIR is not consistent with CEQA. The court conceded that other courts of appeal have since disagreed with the holding in LandValue 77. For example, in Center for Biological Diversity v. Department of Fish & Wildlife (2017) 17 Cal.App.5th 1245 (CBD III), the Second District Court of Appeal held that partial decertification is permissible under section 21168.9, subdivision (a). And, in Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, the Fourth District criticized LandValue 77’s rejection of partial certification in dicta. The Fifth District Court of Appeal concluded that those opinions did not explain how an agency can certify an EIR “in part” under sections 21100(a) or 21151(a), and therefore, the court found those cases unconvincing.

The court went on to find, in the alternative, that even if partial certification is allowed under CEQA, it was inappropriate in this case. In CBD III, the Second District Court of Appeal stated that partial certification is permissible “so long as a court makes a severance finding under [Public Resources Code] section 21168.9(b).” Here, the court determined that severance was not proper, for reasons explained only in the unpublished portion of the decision. Finally, the court determined that its decision in this case would not result in unfair new challenges to the EIR because most of the components of the EIR had already been litigated and resolved. Any arguments on those issues would therefore be barred by res judicata, collateral estoppel, and CEQA’s exhaustion of administrative remedies requirement.

As the court acknowledged in this case, the Courts of Appeal are divided over whether partial decertification of an EIR is permissible under CEQA. While the Fifth District believes it is an “oxymoron” to conclude an agency can partially “certify the completion of” an EIR, other districts disagree.

California Supreme Court Denies Review of Golden Door Case, Appellate Opinion Stands

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California Supreme Court Denies Review of Golden Door Case, Appellate Opinion Stands

On November 10, 2020, the California Supreme Court denied review of Golden Door Properties, LLC v. S.C. (County of San Diego) (Nov. 10, 2020, No. S264324), allowing the appellate court’s opinion to stand.  The Court of Appeal for the Fourth District held that Public Resources Code section 21167.6 requires the lead agency to retain “‘all written evidence or correspondence submitted to, or transferred from’ the public agency with respect to the project . . . .” This includes “‘all internal agency communications, including staff notes and memoranda’ related to the project.” Agencies shall not destroy such “official records” encompassed within section 21167.6, subdivision (e), even if permitted to under its own policies. (Read the in-depth summary of the Court of Appeal’s opinion here: https://www.rmmenvirolaw.com/fourth-district-holds-that-agencies-may-not-destroy-but-rather-must-retain-all-writings-required-by-ceqas-administrative-record-statute/).

Trump Administration Promulgates New NEPA Regulations

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Trump Administration Promulgates New NEPA Regulations

On July 15, 2020, the Council on Environmental Quality (CEQ) released the final rule to update its regulations of the National Environmental Policy Act (NEPA), marking the first update in over 40 years. These changes, promulgated by the Trump administration, purport to clarify existing regulations, and streamline the NEPA review process by facilitating inter-agency cooperation. In an effort to speed up agency action, the new regulations emphasize the use of categorical exemptions (CEs) and findings of no significant impact (FONSIs) wherever possible, in part by requiring agencies to amend their policies to create new CEs. These efficiency gains come at the expense of public participation in the environmental review process and the scope and depth of required environmental impact analyses. The final rule became effective September 14, 2020.

Page Limits and Timeline Requirements

The new rules set specific time frames for document completion. Environmental impact statements (EIS) must be completed, and the record of decision signed, within two years from the date of the issuance of the notice of intent. Environmental assessments (EAs) must be completed and published, or the agency must make a finding of no significant impact, within one year from the date of the agency’s decision to prepare an EA. There are also now page limits for EISs of 150-300 pages, depending on their complexity. (40 C.F.R. § 1502.7 (2020).) These limits do not include graphical information and can be waived via written authorization by a senior official of the lead agency. (§§ 1502.7, 1508.1(v).) EAs are restricted to a maximum of 75 pages, not including appendices, without written approval by a senior agency official. (§ 1501.5(f).) The new regulations also no longer require agencies to engage in new studies or research for environmental analyses, further indicating an intent to simplify the environmental review process. (§ 1502.23).

Lead agencies are now required to “develop a schedule, setting milestones for all environmental reviews and authorizations required for implementation of the action . . . .” (40 C.F.R. § 1501.7(i).) If a milestone might be missed, responsible agencies are required to report the issue to the appropriate officials for a timely resolution. (§ 1501.7(j).) CEQ has not specified any procedural requirements for implementing a “timely resolution.” These limitations are intended to simplify environmental analyses and shorten the time required to complete the NEPA review process.

“Direct and Indirect Effects” and “Cumulative Impacts” Eliminated

The new regulations eliminate the distinction between “direct” and “indirect” effects, and replace these classifications with a general definition of “effects or impacts” as “changes to the human environment    . . . that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives . . . .” (40 C.F.R. § 1508.1(g).) “Reasonably foreseeable” is defined as “sufficiently likely to occur such that a person of ordinary prudence would take it into account in reaching a decision.” (§ 1508.1(aa).) Therefore, there must be more than “[a] ‘but for’ causal relationship . . . to make an agency responsible for a particular effect . . .” and trigger environmental review under NEPA. (§ 1508.1 (g)(2).) “Cumulative impacts” have also been eliminated from NEPA regulations, which means that analyses of project impacts in the context of other actions are no longer required. These classification changes indicate that federal agencies would not be compelled to consider global impacts of projects, such as potential effects on climate change. This sentiment is further evidenced by the requirement that agencies should consider only “the affected area (national, regional, or local) and its resources,” and, “in the case of site-specific action, significance would usually depend only upon the effects in the local area” and a change in the definition of “Human environment” to replace “people” with “Americans.” (§§ 1501.3(b)(1), 1508.1(m), italics added.)

NEPA Exemptions

Agencies are required to update their NEPA procedures to make them consistent with the new regulations, primarily by making the procedures more efficient. (40 C.F.R. § 1507.3(c).) CEQ has set a timeline for agencies to make their procedures consistent with the regulations. (§ 1507.3(b).) Updated agency procedures shall prioritize efficiency and include procedural requirements to satisfy these timelines. (§ 1507.3(c).)

To ensure the efficiency of these procedures, CEQ has codified several actions that are explicitly not subject to NEPA, including (1) actions expressly exempt under another statute; (2) where compliance with NEPA would clearly and fundamentally conflict with another statutory requirement; (3) where compliance would be inconsistent with the Congressional intent of another statute; (4) non-major federal actions; (5) non-discretionary actions, in whole or in part; and (6) where the agency has determined another statute’s requirements serve functions of agency compliance. (40 C.F.R. § 1507.3(d).) Agency procedures must be updated to identify certain exempt activities, such as the examples CEQ has provided. (§ 1507.3(d).) Agencies will also need to identify which additional actions are exempt. Where agency procedures conflict with the regulations, the regulations control. (§ 1507.3(a).)

NEPA Thresholds

CEQ has added new NEPA thresholds that direct agencies to consider reasons why NEPA review might be unnecessary for a given action. These thresholds require consideration of (1) whether the proposed action is expressly exempt from NEPA under another statute; (2) whether compliance with NEPA would clearly and fundamentally conflict with the requirements of another statute; (3) whether compliance with NEPA would be inconsistent with Congressional intent expressed in another statute; (4) whether the proposed action is a major Federal action; (5) whether the proposed action, in whole or in part, is a non-discretionary action for which the agency lacks authority to consider environmental effects as part of its decision-making process; and (6) whether the proposed action is an action for which another statue’s requirements serve the function of agency compliance with the Act. (40 C.F.R. § 1501.1(a).) Federal agencies are permitted to make determinations based on these considerations in their agency procedures or on an individual basis. (§ 1501.1(b).)

“Major Federal Action” Redefined

NEPA is triggered when a federal agency engages in a “major federal action.” The new regulations define a “major federal action” as “an activity or decision subject to federal control and responsibility,” rather than actions subject to federal control with effects that might be significant. (40 C.F.R. § 1508.1(q), italics added.) This change means that whether environmental review is required depends on the extent of an agency’s actions or role in the project, rather than the magnitude of the potential environmental impacts posed by the project. Consequently, agencies will likely be afforded greater discretion in deciding what actions are considered “major,” and whether their involvement is limited enough to avoid NEPA review.

CEQ has also included a new list of activities that are not considered major federal actions, which gives agencies broad discretion to avoid NEPA. These exemptions include (1) extraterritorial activities with effects entirely outside the United States; (2) non-discretionary actions; (3) non-final agency actions; (4) judicial or administrative civil or criminal enforcement actions; (5) general revenue sharing funding assistance with no federal agency control over the use of funds; (6) certain loans or guarantees; and (7) non-federal projects with minimal federal funding or involvement. (40 C.F.R. § 1508.1(q).) “Minimal federal funding or involvement” is to be further defined by federal agencies in their NEPA procedures, but a specific monetary limit has not been established by CEQ.

Categorical Exclusions and Findings of No Significant Impact

The new regulations emphasize the issuance of categorical exclusions (CEs) and findings of no significance (FONSIs) wherever possible to increase efficiency and reduce excessive paperwork. (§ 1500.4.) FONSIs are issued when an action that is not otherwise categorically excluded will not have a significant impact on the environment and therefore does not require the preparation of an EIS. (§ 1508.1(k)(1).) CEQ clarified that an agency must prepare a FONSI if the agency determines a proposed action will not have significant effects. (§1501.6(a).)

CEQ has also broadened the definition of categorical exclusion to encourage agencies to issue exclusions. Actions that fall within a CE do not require an EIS or EA. CEs were historically granted for actions that do not individually or cumulatively have a significant effect on the human environment. Federal agencies are now required to update their procedures to identify CEs for actions that “normally do not have a significant effect on the human environment . . . .” (40 C.F.R. §§ 1501.4(a),1508.1(d), italics added.) Even if an activity involves extraordinary circumstances that would result in a significant impact, the new regulations allow agencies to rely on a CE if the effects can be mitigated. (§ 1501.4(b)(1).)

Additionally, an agency may adopt another agency’s decision to grant a CE to a proposed action if both agencies’ actions are substantially the same. (40 C.F.R. § 1506.3.) The regulations also now permit the adoption of prior EISs and EAs, rather than only EISs as previously drafted. Such adoption is permitted after a documented consultation between the agencies to ensure the use of the CE is appropriate, as well as disclosure to the public of the CE being used. (§ 1507.3 (e)(5).) These changes create more opportunities for a project to obtain a CE and consequently avoid in-depth environmental review.

Public Participation

While CEQ claims the new regulations facilitate public participation, the updated regulations diminish noticing requirements and increase substantive requirements for commenters. The new regulations eliminate the “Policy” provision that required agencies to encourage and facilitate public involvement in decisions that affect the quality of the human environment. (See 40 C.F.R. § 1500.2 (1978).) Further, CEQ has removed the provision stating that “NEPA procedures must [e]nsure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA.” (40 C.F.R. § 1500.1(a) (1978).) The scaling back of these requirements reflects a deemphasis on public participation in the environmental review process.

CEQ also removed the requirement that agencies give “notice by mail to national organizations reasonably expected to be interested in the matter and may include listing in the 102 Monitor” and now permits such notice through publication in the Federal Register only. (40 C.F.R. § 1506.6 (b)(2) (2020).) While EISs, comments, and underlying documents are still available via the provisions of the Freedom of Information Act, the new regulations eliminate the requirement to make these materials publicly available without charge to the extent practicable. (§ 1506.6 (f).) CEQ also added a definition of “publish and publication,” which gives broad authority to agencies to determine which methods “efficiently and effectively make environmental documents and information available for review by interested persons   . . . .” (§ 1508.1(y).) Further, when deciding whether to hold public hearings and meetings, agencies no longer need to consider whether there is “[s]ubstantial environmental controversy concerning the proposed action or substantial interest” or requests “for a hearing by another agency with jurisdiction over the action . . . .” (40 C.F.R. § 1506.6(c) (1978).)

The time frame for making public comments has also been restricted. Under the new regulations, federal agencies may set a deadline for providing public comments on an EIS, rather than being required to allow comments for a specific number of days. Federal agencies are also not permitted to grant additional time to comment beyond the deadline. (40 C.F.R. §1503.1(b) (2020).)

Public commenters are required to “provide as much detail as necessary to meaningfully participate and fully inform the agency of the commenter’s position. Comments should explain why the issues raised are important to the consideration of potential environmental impacts and alternatives to the proposed action, as well as economic and employment impacts, and other impacts affecting the quality of the human environment. Comments should reference the corresponding section or page number of the draft environmental impact statement, propose scientific changes to those parts of the statement, where possible, and include or describe the data sources and methodologies supporting the proposed changes.” (40 C.F.R. § 1503.3(a).) Comments should also “be as specific as possible.” (§ 1503.3(b).).

Additionally, CEQ has made participation more burdensome by formalizing and arguably expanding the NEPA exhaustion requirement, including a requirement that commenters identify “any relevant information, studies, or analyses of any kind concerning impacts affecting the quality of the human environment” during the comment period. Comments, information, or objections not submitted by the comment deadline shall be forfeited as not exhausted. (40 C.F.R. § 1500.3(b)(3).) Timely comments will be included in a “summary of submitted alternatives, information, and analyses” section for the lead and cooperating agencies to consider in preparing the draft EIS, as well as published in the final EIS. (§ 1502.17.) An exhaustion requirement makes participation more burdensome, as it obligates commenters to identify all possible environmental issues at the outset of the review process or risk forfeiting those claims. These additional timing and substantive requirements will likely reduce the number of public comments received, as compliance with them requires greater expertise on the part of commenters.

Remedies

CEQ has emphasized that the new regulations do not expand a potential litigant’s options for suing an agency for NEPA violations. The new regulations “create no presumption that a violation of NEPA is a basis for injunctive relief or for a finding of irreparable harm.” (40 C.F.R. § 1500.3(d).) Additionally, the regulations “do not create a cause of action or right of action for violation of NEPA, which contains no such cause of action or right of action.” (Ibid.) Further, “minor, nonsubstantive errors that have no effect on agency decision making shall be considered harmless and shall not invalidate an agency action.” (Ibid.) This last addition opens the door for agencies to argue that an identified error is minor because it would not have affected their decision.

Project Alternatives

The new regulations diminish consideration of project alternatives. The definition of “reasonable alternatives” no longer requires a detailed consideration of alternatives and much of the regulatory language has been softened. (40 C.F.R. §§ 1508.1(z), 1502.14.) The regulations also do not require a rigorous exploration of all reasonable alternatives to proposed actions, but instead encourage agencies to focus on a narrow range of alternatives based on the goals of the applicant and the agency’s authority. (§§ 1502.14, 1502.13.) For example, federal agencies do not need to consider reasonable alternatives outside of that agency’s jurisdiction. (§ 1502.14(c).) Finally, CEQ requires agencies to specifically limit the consideration of alternatives to a “reasonable number,” although CEQ has not set a maximum. (§ 150.2.14(f).) CEQ has therefore reduced federal agencies’ obligation to consider project alternatives that may reduce environmental impacts.

Weakened Oversight of Contractors and Applicants

CEQ has also relaxed oversight of non-agency contractors in EIS and EA preparation. Contractors no longer need to be approved or selected by a lead or cooperating agency before preparing the EIS or EA. Contractors and applicants also do not need to include privileged or confidential trade secrets or other confidential business information in their disclosure statements accompanying an EA or EIS, nor do they need to specify that they have no financial or other interest in the outcome of the project. (40 C.F.R. § 1506.5(b)(4).)

Interagency Collaboration

The new regulations promote interagency collaboration with federal, state, tribal, and local procedures, as well as joint documents to streamline the NEPA review process. In general, agencies are required “[t]o the maximum extent practicable, jointly issue environmental documents with the lead agency. (40 C.F.R. § 1501.8(b)(8).) “Engaging in interagency cooperation” while an EIS or EA is being prepared is now required, instead of just emphasized. (§ 1500.5(d).) Federal agencies are also required to coordinate “their environmental program websites, including use of shared databases or application programming interface . . . .” (§ 1507.4(b).) Federal, state, tribal, and local agencies are permitted to “jointly prepare or adopt environmental documents . . . .” (§§ 1500.4(p), 1500.5(j), 1501.7(b).) Where a proposal will require action by multiple federal agencies, the agencies must prepare a single EIS and issue a joint record of decision, or prepare a single EA and issue a joint finding of no significant impact, depending on the agencies’ determination. (§ 1501.7(g).)

General Language and Definition Changes

CEQ has included various definition changes that reflect a general relaxing of the regulations. For example, CEQ removed the definition of “significantly,” which required considerations of both context and intensity of potential environmental effects. This elimination diminishes the depth of environmental analysis required under NEPA. The new regulations also include subtle language modifications from “shall” to “should” or “may,” and “possible” to “practicable,” resulting in an overall weakening of NEPA requirements.

Additionally, CEQ has placed a greater emphasis on economic considerations in the NEPA review process. For example, the revised “[p]urpose and policy” section requires consideration of economic requirements of present and future generations. (40 C.F.R. § 1500.1.) Additionally, the environmental consequence section of an EIS must now include “economic and technical considerations, including the economic benefits of the proposed action.” (§ 1502.16.) While economic effects were always a factor in the NEPA review process, they are now a stricter and more prevalent requirement. For example, public comments are must now include an explanation of why the issues raised therein are important to economic and employment impacts. (§ 1503.3.) Economic impacts are also a required consideration for agencies when deciding whether to refer environmental objections on a matter to CEQ. (§ 1504.2(g).) Additionally, economic feasibility is mandatory for an alternative to be considered “reasonable,” where it was previously just one factor agencies could consider when comparing alternatives. (§§ 1505.2(a)(2), 1508.1(z).)

Implications

As a result of these new regulations, federal agencies will be required to develop or revise proposed NEPA procedures to implement the changes within a year of the effective date. (40 C.F.R. § 1507.3(b).) These procedures should have an emphasis on “efficiency.” (§ 1507.3(c).) Agencies’ proposed procedures will be subject to review by the public and by CEQ for conformity with NEPA and the new regulations. (§ 1507.3(a)(2).) Federal agencies are prohibited from imposing additional procedures or requirements beyond those delineated in the new regulations. (Ibid.) Agencies are also barred from relying on previous guidance that conflicts with the new regulations, except for existing agency CEs, which have been deemed by CEQ to be consistent with the regulations. (§§ 1506.7, 1507.3(a).) Ongoing activities and environmental documents that began before the effective date are permitted to rely on either the old or new regulations. (§ 1506.13.)

Veronika Morrison

California Supreme Court Holds that Stanislaus County Well Permits Are Not Categorically Ministerial

General Posted by   

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 (2020) 10 Cal.5th 479, 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.

Legal Background

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.)

Factual Background

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.

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