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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
