In Mission Peak v. State Water Resources Control Board (2021) 72 Cal.App.5th 873, the First District Court of Appeal held that the State Water Resources Control Board’s (Board’s) registration process is ministerial and therefore exempt from CEQA.
The Water Rights Permitting Reform Act of 1988 permits eligible persons to acquire a right to appropriate up to 10 acre-feet per year of water for domestic or other specified uses by completing a registration process with the Board. Pursuant to this Act, the State Water Resources Control Board granted a small domestic use registration to two Alameda County property owners without conducting environmental review on the premise that the action was ministerial and thereby did not trigger CEQA.
Mission Peak Conservancy and Kelly Abreau (collectively, Mission Peak) sued the Board, alleging that it violated CEQA by approving the registration without conducting CEQA review. Mission Peak contended that the Board’s approval was discretionary and that it should have denied the registration because the property owners did not qualify for small domestic use and also because their registration form contained false information. The Board filed a demurrer, which the trial court sustained without leave to amend. Mission Peak appealed.
Court of Appeal’s Decision
The Court of Appeal determined that the Board’s registration process was indeed a ministerial act, not discretionary, and was therefore exempt from CEQA pursuant to Public Resources Code section 21080, subdivision (b)(1). As the court explained, “[m]inisterial projects involve ‘little or no personal judgment by the public official as to the wisdom or manner of carrying out the project.’ (Guidelines, § 15369.) . . . The test is whether the law governing the agency’s decision to approve the project gives it authority to require changes that would lessen the project’s environmental effects.”
The court determined the Board did not have such authority here. Although the Board has statutory authority to impose general conditions applicable to all registrations, it did not have authority “to place conditions on the . . . registration to lessen its environmental effects.” The Board determines whether a registration is compliant by applying a checklist of fixed criteria, and the registration is automatically deemed complete if it meets these criteria. Accordingly, there is no discretion involved in the registration, and it is therefore not subject to CEQA.
Specifically, the Court rejected Mission Peak’s argument that “a different agency, the Department of Fish and Wildlife, has discretion to impose conditions that could ameliorate the project’s environmental impacts” and therefore the the process is discretionary. Not so. As the court explained, another agency’s discretionary authority for its review cannot be imputed to the Board. Mission Peak then argued that “the project did not satisfy the requirements for a small domestic use registration because the [applicant] misrepresented facts,” and thereby the Board did have discretion in that it could deny the project or request changes to meet program requirements. But, “the test is whether the Board had the legal authority to impose environmentally beneficial changes as conditions of the project,” not whether the agency could request changes on an application or deny it. Lastly, Mission Peak argued that the Board violated CEQA because the project did not meet program requirements. The court pointed out that “this is simply an argument that the Board made an erroneous ministerial decisions.” And such an error is not the basis for a CEQA claim. Plainly stated, “CEQA does not regulate ministerial decisions—full stop.”
– Veronika S. Morrison