Legal Alerts Sep 01, 2020

California Supreme Court Clarifies Ministerial vs. Discretionary Actions Under CEQA for Well Construction Permits

Decision in Protecting Our Water and Environmental Resources v. County of Stanislaus Case

In a long-awaited decision, the California Supreme Court addressed the circumstances under which a public agency may characterize the issuance of well construction permits as “ministerial,” and hence not subject to California Environmental Quality Act, versus “discretionary,” in which case CEQA applies.

Under CEQA, ministerial approvals are those that involve little or no discretion, merely apply a checklist or clear requirements to the facts as presented and are often issued over-the-counter by county staff. In contrast, discretionary approvals are those that involve judgment or deliberation, allow a county to use discretion to decide whether to issue the approvals and how best to shape or condition those approvals to avoid environmental issues and are often issued by an appointed or elected decision-making body. CEQA review only applies to discretionary approvals.

In Protecting Our Water and Environmental Resources v. County of Stanislaus, the Supreme Court found last week that there was not a bright-line answer to the question of whether well construction permits are ministerial or discretionary. Instead, whether such a permit is discretionary, and hence subject to CEQA, must be determined based on the specific language of the ordinance governing the permit’s issuance. In other words, the wording of each jurisdiction’s well construction ordinance will determine whether the permit’s issuance is discretionary and subject to CEQA review.

In the POWER matter, the County of Stanislaus asserted that a certain subset of its well construction permits were issued ministerially and were not subject to CEQA. The ordinance governing the County’s issuance of the permits incorporated certain state standards for well construction. Those standards required a safe separation distance between proposed wells and potential sources of contamination, and they authorized the County to exercise “judgment or deliberation when [it] decides to approve or disapprove” a permit. Those standards also provided the County with discretion to determine what qualifies as a “safe separation distance.” The high Court held that, because this language gave the County discretion to identify environmental issues and to condition the wells’ construction to avoid those issues, the County’s issuance of well permits was, at least in some circumstances, discretionary. As such, the Court found that the County violated CEQA by categorically classifying the issuance of all such permits as ministerial.

In so ruling, the Court recognized that many well construction permits may be ministerial in nature, and that a public agency does not necessarily violate CEQA when it categorically classifies well construction permits as ministerial via a clear ordinance. However, to ensure that counties do not run afoul of CEQA, those ordinances must make the ministerial nature of the permit clear, and the issuing agency cannot retain discretionary authority to deny or shape the permit in response to environmental issues.

The POWER decision suggests that many counties may be revisiting the language of the ordinances and policies that govern the issuance of well construction permits to confirm whether those governing provisions contain discretionary elements that may trigger CEQA review. In addition, this decision may also have implications for groundwater sustainability agencies established under the Sustainable Groundwater Management Act with respect to their interaction with counties. On the one hand, GSAs lack authority to issue permits for construction, modification or abandonment of groundwater wells. On the other hand, a GSA is authorized under SGMA to request “that the county forward permit requests for the construction of new groundwater wells... to the groundwater sustainability agency before permit approval,” and GSAs further have the authority to require registration of all wells. As a result of these circumstances, and if CEQA is implicated when issuing well construction permits, counties and GSAs may wish to confirm their potential roles as either a CEQA lead or responsible agency.

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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.

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