California Supreme Court Decision Expands CEQA to Groundwater Well Construction Permits

On August 27, 2020, in Protecting Our Water and Environmental Resources v. County of Stanislaus (“Protecting Our Water”), the California Supreme Court held that the county under its existing ordinance could not categorically classify the issuance of groundwater well construction permits as ministerial actions exempt from environmental review under the California Environmental Quality Act (“CEQA”).

At issue in this case is Stanislaus County’s (County) process for approving well construction applications under its local ordinance, which incorporates state well construction standards. The state standards prescribe minimum distances between proposed wells and potential sources of contamination, and also include language indicating that the distances are not intended to be rigidly applied. Under the state standards, the County has the ability to increase or decrease suggested distances between a new well and a contamination source, depending on attendant circumstances. In practice, the County classified all well construction approvals under the ordinance as a ministerial action unless the applicant requested a variance. The environmental group who challenged this practice argued that the well construction standards at issue required the County to exercise its own judgment in setting distances between proposed wells and potential sources of contamination to avoid local environmental impacts, which is then a discretionary action that triggers environmental review under CEQA.

In its decision, the Court looked at the language of the state standard to determine if it authorized the County to exercise its own judgment in deciding whether to issue a well construction permit. Although the state standard listed minimum distances that are generally considered adequate, it includes language noting that local conditions may require greater distances. The Court determined that the state standard authorized the County to approve alternative distances on a case-by-case basis. Accordingly, the Court found that language conferred significant discretion on the County to deviate from the general standards. Because the County was afforded considerable latitude under this state standard, the Court held that the County could not simply label all well construction approvals as ministerial.

However, contrary to the argument put forward by the environmental group, the Court did not find that the issuance of a well construction permit under the County’s local ordinance was always discretionary thereby triggering CEQA review. The Court found that if the circumstances of a particular project do not require the exercise of independent judgment, it is not discretionary. For example, the exercise of discretion under the local ordinance was only triggered when there was a contamination source near a proposed well. If no contamination sources were identified during the permit approval process, the discretion in the local ordinance through its incorporation of the state standard would not be relevant to the County’s action and may be ministerial.

The Court summarized its ultimate holding as follows: “In summary, when an ordinance contains standards which, if applicable, give an agency the required degree of independent judgment, the agency may not categorically classify the issuance of permits as ministerial.” (Protecting Our Water and Environmental Resources v. County of Stanislaus (Cal. Aug. 27, 2020, No. S251709) 2020 Cal. Lexis 5541.) The broader implication of this decision is that it may call into question existing local ordinances that rely on the ministerial label to avoid CEQA review but nonetheless contain some discretionary aspects. Counties and other local agencies may need to look at existing ordinances and local practices to determine if they are improperly categorically classifying decisions as ministerial and therefore not subject to environmental review under CEQA. View Update

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