In California Water Impact Network v. County of San Luis Obispo (2018) 25 Cal.App.5th 666, the Second Appellate District upheld the decision of the lower court, finding that issuing a permit to construct a well is a ministerial act under the county’s code and thus exempt from CEQA.
Real parties in interest are vineyards who received permits in 2016 to dig irrigation wells on their property, drawing from the underlying Arroyo Grande Basin. The county did not conduct environmental review prior to issuing the permits. Petitioner filed a 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 argued that the ordinance only regulates water quality issues as they relate to well construction, that depletion of groundwater supply is not covered by the code, and that the permit process is exempt as a ministerial act. The county prevailed on demurrer and this appeal followed.
The court reviewed the county’s actions de novo. Under general state water policy principles, water resources must be used reasonably and put to beneficial use, which includes domestic consumption and irrigation. Groundwater use is subject to local control, based on a permit system.
CEQA expressly applies only to projects subject to discretionary approval; it does not apply to ministerial acts. As the CEQA Guidelines state, 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 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 an EIR would reveal environmental consequences, a ministerial approval is not subject to CEQA review because the agency lacks the legal authority to shape the project to respond to any environmental concerns raised in an EIR. The issuance of a building permit is presumed ministerial. A well-building permit is a type of building permit.
The local agency determines which acts are ministerial by analyzing its own laws. Its view of the scope and meaning of its own ordinances are 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 minimum, statewide well construction standards. The purpose of these standards is to protect groundwater quality when constructing, repairing, or closing wells. For example, wells must be dug by licensed engineers at specified distances from potential sources of contamination.
Petitioner cited no case law where a landowner who sought to construct a well was subject to any environmental review. Here, 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. This process leaves scant room for the public agency to impose its personal judgment and discretion.
Petitioner’s argument that DWR standards grant the county discretion were unavailing, as those standards relate to preserving groundwater quality, not depletion from overuse. By its very terms, DWR standards are not designed for conservation purposes. Petitioner did not contend that the applicants failed to satisfy the ordinance’s technical requirements, nor that the county enacted any standards in addition to those imposed by DWR.
The court also rejected 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 review. The subcontext of this provision is whether groundwater will be protected from contamination or pollution during well construction, not from depletion by overuse.
The court noted that the Sustainable Groundwater Management Act does regulate groundwater supply and seeks to prevent groundwater depletion. However, SGMA is not incorporated into the county’s well construction ordinance. The petitioner could address their environmental goals regarding groundwater depletion as the county implements SGMA.
Conclusion
In its succinct decision (not originally certified for publication) the court reiterated basic principles of CEQA jurisprudence concerning ministerial and discretionary projects. The court relied on CEQA’s express terms and key cases, including Friends of Westwood v. City of Los Angeles (1987) 191 Cal.App.3d 259. The opinion builds on this foundation, and is also consistent with the recent previous decision in Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11, where the First District found that issuing an erosion-control permit was a ministerial act under Sonoma County’s applicable ordinance. This line of cases certainly strengthens the presumption that building permits, if issued under carefully crafted ordinances that do not vest discretion with the agency, will be determined exempt from CEQA review.
(Sara Dudley)