Small, Domestic Water Permit Deemed Ministerial, Exempt From CEQA

January 12th, 2022

By: Dustin Peterson



In Mission Peak Conservancy v. State Water Resources Control Bd. (2021) 72 Cal.App.5th 873, the First District Court of Appeal held that the State Water Resources Control Board’s (SWRCB) streamlined permitting process for small, domestic water appropriations was ministerial, reiterating that “CEQA does not regulate ministerial decisions—full stop.”

Mission Peak Conservancy and an individual (collectively, MPC) brought suit against SWRCB alleging a CEQA violation for issuing a small domestic use registration to Christopher and Theresa George. MPC accused the Georges of making a number of false statements to SWRCB during the permitting process and alleged that SWCRB forwarded some of this reportedly inaccurate information to the California Department of Fish and Wildlife (CDFW) who then declined to impose any conditions on the CDFW project. At trial, the court sustained a demurrer in favor of SWRCB. MPC appealed.

On appeal, MPC argued that SWRCB’s registration process was discretionary, not ministerial, and required CEQA review. MPC first argued that the permit was discretionary because CDFW had the power to impose conditions that could ameliorate environmental impacts. But the Court found that SWRCB had no authority to modify or shape the conditions that CDFW imposed – SWRCB simply applied a checklist of fixed criteria, and was required to accept any of CDFW’s conditions. Imposing CDFW’s conditions merely “checked a box” but did not create any discretion in the SWRCB permitting process.

Second, MPC argued that the project did not satisfy permitting requirements because of the Georges’ misrepresentations. The Court observed that the test is whether the agency had legal authority to impose environmentally beneficial conditions and implied in a footnote that other remedies existed if an applicant actually misrepresented facts. An applicant’s alleged misrepresentations does not render the approval discretionary.

Lastly, MPC argued that the project did not meet the definition of a small domestic water facility. The Court concluded that this was not a CEQA claim and any alleged factual misrepresentations did not convert a ministerial permit into a discretionary act. As such, the Court found the trial court properly granted the demurrer without leave to amend.

Key Point:

  • CEQA only applies to discretionary projects. Whether a project is discretionary depends on whether an agency has the power to address the project’s environmental effects.