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Second District Court of Appeal Finds County Well Permit Approval is “Ministerial,” Exempt from CEQA Review Absent Showing of Discretion, SGMA Absent Agency Law Incorporation

An agricultural groundwater well is inspected in California (Kelly Grow/CADFW)

The approval of groundwater well permits to a handful of farmers in San Luis Obispo County (County) was within the permissions of CEQA where such issuances are ministerial and therefore exempt so long as no discretion was allowed by laws guiding the issuance. Cal. Water Impact Network v. County of San Luis Obispo (2018) Cal. App. LEXIS 662.

The County issued groundwater well permits to four agricultural enterprises for well depths ranging from 500 to 1000 feet. The County found that the permit applications were complete and complied with county and state standards. Specifically, the wells met the standards outlined in the San Luis Obispo County Code Chapter 8.40, incorporating the state well standards set by the Department of Water Resources. Finding as such, the County approved the wells without additional consideration.

California Water Impact Network (Network) appealed the well issuances claiming that the County improperly failed to conduct CEQA review and in doing so “bypassed public disclosure of potentially significant impacts to groundwater resources.” The trial court agreed with the County, no review was necessary, and dismissed Network’s petition on demurrer.

Reviewing de novo, the Court agreed with the trial court and County, no CEQA review was required where such actions are specifically exempt by Public Resources Code section 21080(b)(1) “ministerial projects.” The Court examined where a ministerial project does and does not exist and chided Network for trying to judicially alter the County Code to incorporate the then-recent Sustainable Groundwater Management Act, a task for the County’s elected officials.

The Court quoted a ministerial act is where “little or no personal judgement” is used by the public official, they merely apply the law and give no individualized or special consideration. This is contrasted to a discretionary project where such judgement or deliberation is required. Reading the legislative intent, the Court reminded that in ministerial acts, agencies, in this case the County, have no ability to influence the project therefore it makes sense they would be excluded. The Court found well permits are a type of building permits which are “presumed to be ministerial.”

Citing rules on judicial statutory interpretation, the Court refused appellant’s argument that County had some discretionary powers under Chapter 8.40 to impose additional conditions on well permits. The Chapter was clear; a well permit “shall be issued” so long as the listed conditions are met. Similarly, the Court excused any indication that the County had a responsibility to impose groundwater preservation measures as such goals are properly addressed by the County’s elected officials.

Though appellants did not contend that the applicants failed to satisfy the well specifications, the Court found all conditions were met in this ministerial action therefore the well permits were kept intact.

Key Point:

The issuance of groundwater well permits are ministerial duties exempt from CEQA review. Therein, SGMA considerations need not be addressed in agency decisions unless the guiding agency law specifically incorporates it.

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dateJuly 27th, 2018byby

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