Protecting Our Water and Environmental etc. v. County of Stanislaus

IN THE SUPREME COURT OF
CALIFORNIA
PROTECTING OUR WATER AND ENVIRONMENTAL
RESOURCES et al.,
Plaintiffs and Appellants,
v.
COUNTY OF STANISLAUS et al.,
Defendants and Respondents.
S251709
Fifth Appellate District
F073634
Stanislaus County Superior Court
2006153
August 27, 2020
Justice Corrigan authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Liu, Cuéllar,
Kruger, and Groban concurred.
PROTECTING OUR WATER AND ENVIRONMENTAL
RESOURCES v. COUNTY OF STANISLAUS
S251709
Opinion of the Court by Corrigan, J.
The California Environmental Quality Act (CEQA or the
Act; Pub. Resources Code, § 21000 et seq.)1 regulates activities
carried out, funded, or approved by the government. Any
government action that may directly or indirectly cause a
physical change to the environment is a “project.” (§ 21065; see
§ 21060.5 [“ ‘[e]nvironment’ ” defined].) Generally, the issuance
of a permit is a project (§ 21065, subd. (c)) because it could
authorize a physical environmental change. Projects can be
either discretionary or ministerial actions. Unless exempted,
discretionary projects require some level of environmental
review; ministerial projects do not. (§ 21080, subds. (a), (b)(1).)
This case involves the distinction between discretionary and
ministerial projects.
Stanislaus County (County) issues well construction
permits under an ordinance that incorporates state well
construction standards. It categorically classifies a subset of
those projects as ministerial. Plaintiffs2 challenge that
classification practice, alleging the permit issuances are
actually discretionary projects requiring CEQA review. They
1
Unless noted, all statutory references are to the Public
Resources Code.
2
Plaintiffs are Protecting Our Water and Environmental
Resources and the California Sportfishing Protection Alliance.
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Opinion of the Court by Corrigan, J.
seek declaratory and injunctive relief to stop the classification
practice. The trial court found the permit issuances are
ministerial and the Court of Appeal reversed. We hold the
blanket classification of all these permit issuances as
ministerial is unlawful. County may be correct that many of its
decisions are ministerial. However, as we explain, under the
ordinance authorizing the issuance of these permits, some of
County’s decisions may be discretionary. Accordingly,
classifying all issuances as ministerial violates CEQA.
Plaintiffs are entitled to a declaration to that effect. But they
are not entitled to injunctive relief at this stage, because they
have not demonstrated that all permit decisions covered by the
classification practice are discretionary.
I. BACKGROUND
A. The CEQA Framework
CEQA was enacted to (1) inform the government and
public about a proposed activity’s potential environmental
impacts; (2) identify ways to reduce, or avoid, those impacts; (3)
require project changes through alternatives or mitigation
measures when feasible; and (4) disclose the government’s
rationale for approving a project. (California Building Industry
Assn. v. Bay Area Air Quality Management Dist. (2015) 62
Cal.4th 369, 382 (Building Industry).) CEQA embodies a central
state policy requiring “state and local governmental entities to
perform their duties ‘so that major consideration is given to
preventing environmental damage.’ ” (Friends of the Eel River
v. North Coast Railroad Authority (2017) 3 Cal.5th 677, 711,
quoting § 21000, subd. (g).) Accordingly, CEQA prescribes how
governmental decisions will be made whenever an agency
undertakes, approves, or funds a project. (Union of Medical
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Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th
1171, 1185 (Medical Marijuana Patients).)
Under CEQA, an agency uses “a multistep decision tree.”
(Medical Marijuana Patients, supra, 7 Cal.5th at p. 1185; see
also Cal. Code Regs., tit. 14, § 15002, subd. (k).)3 Once an
activity is determined to be a project, the next question is
whether the project is exempt. (CEQA Guidelines, §§ 15002,
subd. (k)(1), 15061, subd. (a).) Many types of projects, as well as
all ministerial ones, are exempted. (§ 21080, subd. (b)(1)
[exemption for ministerial projects]; CEQA Guidelines, § 15268,
subd. (a) [same]; see generally §§ 21080, subd. (b), 21080.01–
21080.07; CEQA Guidelines, §§ 15300–15333.)
If an agency concludes a particular project is exempt, it
may file a notice of exemption, citing legal and factual support
for its conclusion. (§ 21152, subd. (b); CEQA Guidelines,
§ 15062, subd. (a).) If the project is discretionary and does not
qualify for any other exemption, the agency must conduct an
environmental review. (Medical Marijuana Patients, supra, 7
Cal.5th at p. 1186.) A required environmental review proceeds
in stages. The agency conducts an initial study to assess
potential environmental impacts. (CEQA Guidelines, §§ 15002,
subd. (k)(2), 15063, subd. (a).) If there is no substantial evidence
that the project may significantly affect the environment, the
agency prepares a negative declaration and environmental
3
CEQA is “implemented by an extensive series of
administrative regulations promulgated by the Secretary of the
Natural Resources Agency.” (Medical Marijuana Patients,
supra, 7 Cal.5th at p. 1184.) These regulations can be found at
title 14, division 6, chapter 3 of the California Code of
Regulations, and will be referred to as the “CEQA Guidelines.”
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review ends. (§ 21080, subd. (c)(1); CEQA Guidelines, §§ 15002,
subd. (k)(2), 15063, subd. (b)(2), 15070, subd. (a).) If potentially
significant environmental effects are discovered, but the project
applicant agrees to changes that would avoid or mitigate them,
the agency prepares a mitigated negative declaration (§ 21080,
subd. (c)(2); CEQA Guidelines, § 15070, subd. (b)), which also
ends CEQA review. (Medical Marijuana Patients, at pp. 1186–
1187.) Finally, if the initial study reveals substantial evidence
that the project may have a significant environmental impact
and a mitigated negative declaration is inappropriate, the
agency must prepare and certify an environmental impact
report (EIR) before approving the project. (§ 21080, subd. (d);
CEQA Guidelines, §§ 15002, subd. (k)(3), 15063, subd. (b)(1);
Medical Marijuana Patients, at p. 1187.)
B. Rules Regarding Project Classification
A permit issuance decision can be discretionary or
ministerial depending on the circumstances. Those terms are
defined in the CEQA Guidelines. A project is discretionary
when an agency is required to exercise judgment or deliberation
in deciding whether to approve an activity. (CEQA Guidelines,
§ 15357.) It is distinguished from a ministerial project, for
which the agency merely determines whether applicable
statutes, ordinances, regulations, or other fixed standards have
been satisfied. (Ibid.) Ministerial projects are those for which
“the law requires [an] agency to act . . . in a set way without
allowing the agency to use its own judgment . . . .” (CEQA
Guidelines, § 15002, subd. (i)(1).) They involve “little or no
personal judgment by the public official as to the wisdom or
manner of carrying out the project. The public official merely
applies the law to the facts as presented but uses no special
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Opinion of the Court by Corrigan, J.
discretion or judgment in reaching a decision.” (CEQA
Guidelines, § 15369.)
The CEQA Guidelines encourage agencies to classify
ministerial projects on either a categorical or individual basis.
(CEQA Guidelines, § 15268, subds. (a), (c).) That classification
may be challenged for abuse of discretion. (Sierra Club v.
County of Sonoma (2017) 11 Cal.App.5th 11, 23 (County of
Sonoma).) As explained below, the nature and scope of judicial
review under this standard depends on whether the
determination being evaluated is factual or legal in character.
(See post, Pt. II.B.)
C. County Well Permitting Ordinances
Two chapters of the Stanislaus County Code govern well
permit issuance. Chapter 9.36 regulates the location,
construction, maintenance, abandonment, and destruction of
wells that might affect the quality and potability of
groundwater. (Stanislaus County Code, § 9.36.010.) Chapter
9.37 regulates the extraction and export of groundwater.
(Stanislaus County Code, § 9.37.040.)4
1. Chapter 9.36
Chapter 9.36, enacted in 1973, requires a permit from the
county health officer to construct, repair, or destroy a water
well. (Stanislaus County Code, § 9.36.030.) The chapter sets
standards for each activity and conditions permit approval on
compliance. (Stanislaus County Code, § 9.36.030.) Here, we
4
All designated references to Chapter 9.36 and Chapter
9.37 are to title 9 of the Stanislaus County Code.
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consider only well construction permits. Many permit
standards are incorporated by reference to a state Department
of Water Resources bulletin.5
Four of these incorporated state standards are relevant
here. Section 8.A of the bulletin (Standard 8.A) addresses the
distance between proposed wells and potential sources of
contamination. It requires that all wells “be located an adequate
horizontal distance” from those sources.6 The standard lists
5
Section 9.36.150 of the Stanislaus County Code provides
that, except as otherwise provided, standards for well
construction “shall be as set forth in Chapter II of the
Department of Water Resources Bulletin No. 74.” The bulletin
referred to in this section was first published in 1968, as
Department of Water Resources Bulletin No. 74, Water Well
Standards: State of California. (Dept. of Water Resources,
Bulletin No. 74-90, June 1991, p. 3 [detailing the publication
history of Bulletin No. 74].) In 1981, a revised version was
published as Bulletin No. 74-81. In 1991, a supplement was
issued as Bulletin No. 74-90. The bulletin and its supplement
(collectively, Bulletin No. 74) have been described as “a 90-page
document filled with technical specifications for water wells.”
(California Groundwater Assn. v. Semitropic Water Storage
Dist. (2009) 178 Cal.App.4th 1460, 1469.) Under Water Code
section 13801, subdivision (c), counties are required to adopt
well construction ordinances that meet or exceed the standards
in Bulletin No. 74. Many counties have incorporated the
bulletin’s standards for well design and construction into their
well permitting ordinances.
6
Potential contamination sources include: storm sewers;
septic tanks; sewage and industrial waste ponds; barnyards and
stable areas; feedlots; solid waste disposal sites; and pipelines
and storage tanks for petroleum and other chemicals, pesticides,
and fertilizers.
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separation distances that are generally considered adequate for
specific situations. For example, it notes that a well should be
located at least 50 feet from any sewer line; 100 feet from any
watertight septic tank or animal enclosure; and 150 feet from
any cesspool or seepage pit. However, the standard makes clear
that the distances are not intended to be rigidly applied. It notes
that: “[m]any variables are involved in determining the ‘safe’
separation distance;” “[n]o set separation distance is adequate
and reasonable for all conditions;” and “[d]etermination of the
safe separation distance for individual wells requires detailed
evaluation of existing and future site conditions.” It also
provides that “[c]onsideration should . . . be given to adequate
separation from sites or areas with known or suspected soil or
water pollution or contamination.” Significantly, it allows the
agency to increase or decrease suggested distances, depending
on attendant circumstances.
The other relevant state standards are taken from
Sections 8.B, 8.C, and 9 of Bulletin No. 74.7 Standard 8.B
provides that, “[w]here possible, a well shall be located up the
ground water gradient from potential sources of pollution or
contamination.” Under Standard 8.C, “[i]f possible, a well
should be located outside areas of flooding.” Standard 9 requires
that a well’s “annular space” be “effectively sealed” and
establishes minimum surface seal depths.
Chapter 9.36 also allows for variance permits. The county
health officer “may authorize an exception to any provision of
this chapter when, in his/her opinion, the application of such
provision is unnecessary.” (Stanislaus County Code,
7
These will be referred to as Standards 8.B, 8.C, and 9.
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§ 9.36.110.) When authorizing a variance, the health officer
may prescribe “such conditions as, in his or her judgment, are
necessary to protect the waters of the state.” (Stanislaus County
Code, § 9.36.110.)
2. Chapter 9.37
In 2014, County’s board of supervisors amended Chapter
9.37 to prohibit the unsustainable extraction and export of
groundwater. (Stanislaus County Code, § 9.37.040, subd. A.)
The amendment requires that future permit applications satisfy
both Chapter 9.36 and Chapter 9.37, unless exempt from the
latter.8 (Stanislaus County Code, § 9.37.045, subd. A.)
D. County’s Classification of Well Construction Permits
In 1983 County adopted its own CEQA regulations which
generally classified issuance of all well construction permits as
ministerial projects unless the county health officer granted a
variance. A variance permit was designated as a discretionary
project, triggering environmental review. As enacted, County’s
regulations provided that the issuance of a nonvariance well
construction permit was presumed to be ministerial “[i]n the
absence of any discretionary provision contained in the relevant
ordinance.” The parties stipulated that County’s practice has
been to treat all nonvariance permit issuances as ministerial.
This practice ignores the quoted clause, which mirrors language
in CEQA Guidelines, section 15268, subdivision (b). We address
County’s practice here.
8
Chapter 9.37 exempts, inter alia, wells that extract two
acre-feet or less per year. (Stanislaus County Code, §§ 9.37.050,
subd. A.2, 9.37.030, subd. 10.)
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Since 2014, County has evaluated permit applications as
follows. First, it determines whether an application is exempt
from Chapter 9.37. If not exempt, approval or denial is classified
as discretionary. Second, if the application is exempt from
Chapter 9.37, County determines whether it seeks a variance
under Chapter 9.36. Third, if the application is exempt from
Chapter 9.37 and does not seek a variance, its approval or denial
is classified as a ministerial project. This third classification is
challenged here. Plaintiffs argue that even if an application is
exempt from Chapter 9.37 and seeks no variance under Chapter
9.36 its approval is still a discretionary project.
E. This Litigation
In January 2014, plaintiffs filed this action alleging “a
pattern and practice” of approving well construction permits
without CEQA review. They assert that all permit issuance
decisions are discretionary projects because County can “deny
[a] permit or require changes in the project as a condition of
permit approval to address concerns relating to environmental
impacts.” For example, a permit application could be denied or
ordered modified if the distance between the proposed well and
a potential contamination source is deemed inadequate
(Standard 8.A) or if the proposed well is situated in a flooding
area when it could be located elsewhere (Standard 8.C).
Plaintiffs urge that, because determining compliance with
Chapter 9.36’s standards requires the exercise of subjective
judgment, the projects are discretionary. Plaintiffs seek a
declaration that County’s practice of approving misclassified
permits without environmental review is “unlawful,” and seek
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to enjoin County from issuing any more permits until it changes
its policy.9
The case was submitted on stipulated facts. The trial
court ruled that County’s approval of all nonvariance permits
was ministerial. The Court of Appeal reversed, concluding that
“issuance of well construction permits is a ‘discretionary’
decision.” The appellate court acknowledged that many of the
decisions County might make under Chapter 9.36 would be
ministerial. Specifically, it concluded that County’s
determinations under Standards 8.B, 8.C, and 9 were all
ministerial acts. However, it found that County’s compliance
determination under Standard 8.A involved sufficient
discretionary authority to make the issuance of all permits
under Chapter 9.36 discretionary.
We granted County’s petition for review. Plaintiffs have
asked us to also reconsider the Court of Appeal’s conclusions
regarding Standards 8.B and 8.C. We decline to do so as we
explain below.
II. DISCUSSION
Whether County’s issuance of the challenged permits is
discretionary or ministerial depends on the circumstances. As
a result, County may not categorically classify all these projects
as ministerial. For the same reason, plaintiffs have not
demonstrated that all issuance decisions are properly
designated as discretionary.
9
In a separate action, plaintiffs sought writs of mandate to
invalidate 60 individual well construction permits issued by
County without environmental review. That litigation
ultimately settled, and plaintiffs dismissed the action.
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A. Discretionary v. Ministerial Projects
Distinguishing discretionary projects from ministerial
ones turns on whether the exercise of judgment or deliberation
is required in making the decision. (CEQA Guidelines, § 15357.)
The “key question is whether the public agency can use its
subjective judgment to decide whether and how to carry out or
approve [the] project.” (Ibid.; see also CEQA Guidelines,
§ 15002, subd. (i).) “Whether an agency has discretionary or
ministerial controls over a project depends on the authority
granted by the law providing the controls over the activity.”
(CEQA Guidelines, § 15002, subd. (i)(2).)
Ministerial projects are those in which the agency merely
determines “conformity with applicable statutes, ordinances,
regulations, or other fixed standards.” (CEQA Guidelines,
§ 15357; see also CEQA Guidelines, § 15369.) If the law requires
an agency “to act on a project in a set way without allowing the
agency to use its own judgment,” the project is ministerial.
(CEQA Guidelines, § 15002, subd. (i)(1).) Under the guidelines,
certain actions, including the issuance of a building permit, are
presumed to be ministerial “[i]n the absence of any discretionary
provision contained in the local ordinance or other law
establishing the requirements for the permit, license, or other
entitlement for use.” (CEQA Guidelines, § 15268, subd. (b).) As
noted, County used this same quoted language when
articulating its own CEQA regulations in 1983.
Courts have developed a functional test to further refine
this distinction. (Friends of Juana Briones House v. City of Palo
Alto (2010) 190 Cal.App.4th 286, 302 (Friends of Juana Briones
House).) Like the CEQA Guidelines, the functional test focuses
on the scope of an agency’s discretion. The “ ‘touchstone’ ” is
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whether the relevant “approval process . . . allows the
government to shape the project in any way [by requiring
modifications] which could respond to any of the concerns which
might be identified” by environmental review. (Friends of
Westwood, Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259,
267 (Friends of Westwood); see also Mountain Lion Foundation
v. Fish & Game Com. (1997) 16 Cal.4th 105, 117.) If so, the
project is discretionary. On the other hand, a project is
ministerial “when a private party can legally compel approval
without any changes in the design of its project which might
alleviate adverse environmental consequences.” (Friends of
Westwood, at p. 267.) “The statutory distinction between
discretionary and purely ministerial projects implicitly
recognizes that unless a public agency [is authorized to] shape
the project in a way that would respond to concerns raised in an
EIR, or its functional equivalent, environmental review would
be a meaningless exercise.” (Mountain Lion, at p. 117.)
Under the functional test, a decision is ministerial if the
agency has no discretionary authority to deny or shape the
project. (Leach v. City of San Diego (1990) 220 Cal.App.3d 389,
393; see also Health First v. March Joint Powers Authority
(2009) 174 Cal.App.4th 1135, 1144–1145.) Further, even if a
statute grants an agency some discretionary authority over an
aspect of a project, the project is ministerial for CEQA purposes
if the agency lacks authority to address environmental impacts.
In McCorkle Eastside Neighborhood Group v. City of St. Helena
(2018) 31 Cal.App.5th 80, for example, the agency’s power to
conduct an aesthetic design review did not make a project
discretionary because the agency “lack[ed] . . . any discretion to
address environmental effects.” (Id. at p. 94; see also Friends of
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Juana Briones House, supra, 190 Cal.App.4th at p. 308
[discretionary authority to delay a project did not render its
approval discretionary].)
Conversely if the agency is empowered to disapprove or
condition approval of a project based on environmental concerns
that might be uncovered by CEQA review, the project is
discretionary. In a ministerial decision, the laws, regulations,
and other standards are policy decisions made by the enactors.
The agency’s role is to apply those standards as adopted. If an
agency refuses to approve a ministerial project, an affected
party may seek a writ of mandate, ordering that approval be
granted because the enacted standards have been satisfied. For
discretionary decisions, on the other hand, the policy makers
have empowered the agency to make individualized judgments
in light of the particular circumstances involved.
Friends of Westwood, supra, 191 Cal.App.3d 259 held the
issuance of a building permit for a major construction project
was discretionary. (Id. at p. 262.) Under its code the city could
require project modifications to ensure adequate ingress and
egress for public streets, and to minimize interference with
traffic flow. (Id. at p. 274.) The city also had discretion to allow
departures from certain standards established by the city
council, and exempt the project from conforming to the city’s
general plan. (Id. at pp. 274–275.) Finally, the city exercised
its discretion by treating a proposed tower as two separate
structures to satisfy area density ratios. (Id. at p. 275.)
Similarly, Miller v. City of Hermosa Beach (1993) 13
Cal.App.4th 1118 held that issuing a hotel building permit was
a discretionary project. As part of the permit approval process,
the applicant was required to obtain analyses of traffic impacts,
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soil settlement, and effects on a downstream sewer line. (Id. at
p. 1141.) The court concluded that the applicant could not have
legally compelled approval without making changes to alleviate
adverse environmental consequences revealed during the
permitting process. (Id. at p. 1142.) Thus, the project was
discretionary. (Ibid.)
These Courts of Appeal have employed the functional test
to help determine whether individual project approvals were
ministerial or discretionary. The question before us is slightly
different. It is not whether a specific decision was ministerial,
but instead whether, in at least some circumstances, Standard
8.A requires County to exercise discretion, and whether its
classification of all such permits as ministerial is permissible in
light of this possibility. Because we are not called upon to rule
on the status of any individual permit, the functional test has
no direct application here. Nevertheless, the factors set forth by
the Courts of Appeal will be helpful in evaluating the propriety
of County’s categorical classification.
B. Standard of Review
In general, judicial review of agency actions for CEQA
compliance extends to “whether there was a prejudicial abuse of
discretion.” (§ 21168.5; see Muzzy Ranch Co. v. Solano County
Airport Land Use Com. (2007) 41 Cal.4th 372, 381.) “Abuse of
discretion is established if the agency has not proceeded in a
manner required by law or if the determination or decision is
not supported by substantial evidence.” (§ 21168.5.) An
agency’s declaration of a ministerial exemption is reviewed for
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abuse of discretion. (County of Sonoma, supra, 11 Cal.App.5th
at p. 23.)
In a CEQA case, the appellate court’s review “is the same
as the trial court’s: [It] reviews the agency’s action, not the trial
court’s decision; in that sense appellate judicial review under
CEQA is de novo.” (Vineyard Area Citizens for Responsible
Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412,
427.) The reviewing court independently determines whether
the record “demonstrates any legal error” by the agency and
deferentially considers whether the record “contains substantial
evidence to support [the agency’s] factual determinations.”
(Ibid.) When an agency concludes an activity is exempt based
on factual considerations, a court reviews for substantial
evidence. If the agency’s determination “involves pure questions
of law, we review those questions de novo.” (County of Sonoma,
supra, 11 Cal.App.5th at p. 24.)
As mentioned, CEQA encourages agencies to identify
which projects are ministerial on either a categorical or case-by-
case basis. (CEQA Guidelines, § 15268, subds. (a), (c).) Here,
County categorically classifies the permits as ministerial.
Unlike a case-by-case approach, County’s categorical treatment
does not take into account whether judgment was exercised in
deciding to issue a particular permit. County’s position is that
the permits are ministerial regardless of the circumstances.
This argument rests on County’s legal interpretation of Chapter
9.36. We review that interpretation de novo.
C. Analysis
In determining whether County’s issuance of these
permits is a discretionary project, we are guided by the principle
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that CEQA must be interpreted “to afford the fullest possible
protection to the environment within the reasonable scope of the
statutory language.” (Friends of Mammoth v. Board of
Supervisors (1972) 8 Cal.3d 247, 259; see also Sierra Club v.
County of Fresno (2018) 6 Cal.5th 502, 511.) We also consider
the Legislature’s objectives: to reduce or avoid environmental
damage by requiring project changes when feasible. (Building
Industry, supra, 62 Cal.4th at p. 382.) Against this backdrop,
we conclude County’s practice of categorically classifying all the
permits as ministerial violates CEQA.
The plain language of Standard 8.A authorizes County to
exercise “judgment or deliberation when [it] decides to approve
or disapprove” a permit. (CEQA Guidelines, § 15357.) Although
the standard sets out distances that are generally considered
adequate, it makes clear that individualized judgment may be
required. It notes that an “adequate horizontal distance” may
depend on “[m]any variables” and “[n]o set separation distance
is adequate and reasonable for all conditions.” (Standard 8.A.)
The determination for each well “requires detailed evaluation of
existing and future site conditions.” (Ibid.) The standard does
provide a list of minimum suggested distances that are
“generally considered adequate,” but notes that “[l]ocal
conditions may require greater separation distances.” (Ibid.)
Where, “in the opinion of the enforcing agency adverse
conditions exist,” the standard requires that the suggested
distance be increased, or special means of protection be
provided. (Ibid.) While, under the standard, lesser distances
“may be acceptable,” approval of all lesser distances requires
agency approval “on a case-by-case basis.” (Ibid.)
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This language confers significant discretion on the county
health officer to deviate from the general standards, allowing
either relaxed or heightened requirements depending on the
circumstances. If he or she determines the distance between a
proposed well and a contamination source is inadequate, the
officer may deny a permit or condition approval on project
modifications. (Stanislaus County Code, § 9.36.030.) The
permit approval process allows County to shape a well
construction project in response to concerns that could be
identified by an environmental review. (See Friends of
Westwood, supra, 191 Cal.App.3d at p. 267.) A permit issuance
in which County is required to exercise independent judgment
under Standard 8.A cannot be classified as ministerial.
County argues against this conclusion. Acknowledging
that Standard 8.A affords some flexibility, it maintains that the
standard’s suggested minimum distances and other technical
criteria are objective guideposts constraining its discretion.
When read as a whole, it claims Standard 8.A calls for the
exercise of “little or no judgment” in reviewing separation
distances.
The argument fails. County’s position would be much
stronger if the objective minimum distances were the only
criteria the agency was authorized to consider in making the
issuance decision. But, as pointed out, that is not the case. Read
as a whole, the minimum distances are a starting point, but one
around which there is considerable latitude.
Next, County argues that, even if Standard 8.A admits of
some discretion, its “well-separation standard is only one part of
[a] much larger regulatory scheme.” County points out that
Chapter 9.36 contains numerous provisions, including
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PROTECTING OUR WATER AND ENVIRONMENTAL RESOURCES v.
COUNTY OF STANISLAUS
Opinion of the Court by Corrigan, J.
Standards 8.B, 8.C, and 9, all of which the Court of Appeal found
to involve ministerial decisions. Considering the process as a
whole, County argues that the decision to issue a permit under
Chapter 9.36 is ministerial. County urges that “CEQA is not
triggered just because the agency exercises judgment” as to one
aspect of a project and that a holding to the contrary will create
a “hair trigger” for CEQA review.
This argument is inconsistent with the CEQA Guidelines,
which provide that, when a project “involves an approval that
contains elements of both a ministerial action and a
discretionary action, the project will be deemed to be
discretionary.” (CEQA Guidelines, § 15268, subd. (d).) It cannot
be reconciled with judicial declarations that a project is
discretionary if the government can “shape the project in any
way which could respond to any of the concerns which might be
identified” during an environmental review (Friends of
Westwood, supra, 191 Cal.App.3d at p. 267, italics added), and
that any “doubt whether a project is ministerial or discretionary
should be resolved in favor of the latter characterization.”
(People v. Department of Housing & Community Dev. (1975) 45
Cal.App.3d 185, 194.)
Next, County argues that permit issuance is ministerial
because it has only limited options under Chapter 9.36 to
mitigate potential environmental damage. According to County,
all it can do under Standard 8.A is adjust the location of a well
to prevent groundwater contamination. Chapter 9.36 does not
allow County to address other environmental concerns, like
groundwater depletion, nor does it allow County to impose other
measures that might prevent contamination, such as regulating
the use of pesticides or fertilizers. County argues that, if
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PROTECTING OUR WATER AND ENVIRONMENTAL RESOURCES v.
COUNTY OF STANISLAUS
Opinion of the Court by Corrigan, J.
environmental review is required for these permits, it may have
to consider environmental impacts that it will have no authority
to minimize or mitigate.
The significance of these purported limitations is unclear.
Just because the agency is not empowered to do everything does
not mean it lacks discretion to do anything.10 County concedes
it has the authority, under some circumstances, to require a
different well location, or deny the permit. This is sufficient
latitude to make the issuance of a permit discretionary, at least
when particular circumstances require County to exercise that
authority. While Chapter 9.36 does not also empower County to
impose other mitigation measures, that circumstance does not
mean the issuance of a permit is not subject to CEQA. If a
project is neither ministerial nor exempt, the agency must
comply with the Act. (§§ 21002, 21002.1, 21081.)
The CEQA Guidelines do recommend that a public agency
identify its actions “deemed ministerial under the applicable
laws and ordinances.” (CEQA Guidelines, § 15268, subd. (c).)
The agency is encouraged to do so in “its implementing
regulations or on a case-by-case basis.” (CEQA Guidelines,
§ 15268, subd. (a).) But the CEQA Guidelines also provide that
projects should be labelled as ministerial when they are the sort
“over which the agency has only ministerial controls.” (CEQA
Guidelines, § 15022, subd. (a)(1)(B), italics added.) Read
together, the guidelines provide that an agency may
10
The question here is a narrow one: whether a decision to
issue these permits without environmental review is ministerial
or discretionary. We are not called upon here to determine the
scope of County’s authority once an environmental review
process begins. We express no view on that issue.
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PROTECTING OUR WATER AND ENVIRONMENTAL RESOURCES v.
COUNTY OF STANISLAUS
Opinion of the Court by Corrigan, J.
categorically classify approvals as ministerial only when its
conferred authority is solely ministerial. The agency may
classify other types of project approvals as ministerial on a
“case-by-case basis.” (CEQA Guidelines, § 15268, subd. (a).)
County argues that its interpretations of Chapter 9.36 and
Bulletin No. 74 are entitled to deference. It notes the CEQA
Guidelines, which provide that the “determination of what is
‘ministerial’ can most appropriately be made by the particular
public agency involved based upon its analysis of its own laws.”
(CEQA Guidelines, § 15268, subd. (a).) It also relies on Friends
of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, 1015, which
held that “an agency’s view of the meaning and scope of its own
ordinance is entitled to great weight unless it is clearly
erroneous or unauthorized.” (See also Sierra Club v. Napa
County Bd. of Supervisors (2012) 205 Cal.App.4th 162, 178.)
County’s reliance on these authorities is misplaced. In those
cases, the agencies were interpreting their own ordinances.
That is not the case here. When it enacted Chapter 9.36, County
explicitly incorporated standards from Bulletin No. 74. It is the
legal interpretation of those state standards that is at issue
here.
It is true that when reviewing a particular issuance
decision for abuse of discretion the agency’s legal conclusions are
reviewed de novo, while its factual determinations are reviewed
deferentially for substantial evidence. When an agency
determines a particular project is ministerial, it would typically
rely on one or more factual determinations. But County is not
claiming the ministerial exemption applies to a particular
permit. Instead, it claims the exemption applies to an entire
category of permits, as a matter of law.
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PROTECTING OUR WATER AND ENVIRONMENTAL RESOURCES v.
COUNTY OF STANISLAUS
Opinion of the Court by Corrigan, J.
Of course, we do not simply ignore County’s
interpretation. It is one of the several tools available to us in
determining the legal effect of the incorporated state standards.
(Yamaha Corp. of America v. State Bd. of Equalization (1998) 19
Cal.4th 1, 7.) But, as we said in Yamaha, the amount of
deference due is “situational.” (Id. at p. 12.) It depends on
factors indicating that the agency has a comparative
interpretive advantage over courts and that its interpretation is
“ ‘probably correct.’ ” (Ibid.; see also Irvin v. Contra Costa
County Employees’ Retirement Assn. (2017) 13 Cal.App.5th 162,
172–173 [warning that according deference to a local agency’s
interpretation of state law may result in the inconsistent
interpretation of that law].) County fails to establish that those
factors warrant adopting its interpretation here. It is ultimately
for the courts to determine the scope and meaning of an
ordinance as a matter of law.
D. Categorical v. Individual Classification
Based on the above analysis, we reject County’s argument
that the issuance of the permits in question is always
ministerial. Because Standard 8.A gives County sufficient
authority, at least in some cases, to render those issuances
discretionary, County’s blanket classification violates CEQA. It
enables County to approve some discretionary projects while
shielding them from CEQA review.
However, we disagree with the Court of Appeal that the
issuance of a permit under Chapter 9.36 is always a
discretionary project. The fact that an ordinance contains
provisions that allow the permitting agency to exercise
independent judgment in some instances does not mean that all
permits issued under that ordinance are discretionary. County
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PROTECTING OUR WATER AND ENVIRONMENTAL RESOURCES v.
COUNTY OF STANISLAUS
Opinion of the Court by Corrigan, J.
of Sonoma, supra, 11 Cal.App.5th 11, illustrates this principle.
There, the plaintiff argued that the issuance of a permit was
discretionary because many of the governing ordinance’s
provisions were “broad and vague and . . . allow[ed] the [county’s
Agricultural] Commissioner to exercise discretion.” (Id. at p.
18.) The Court of Appeal rejected this argument. It reasoned
that most of the provisions potentially conferring discretion did
not actually apply to the issuance of the particular challenged
permit (id. at pp. 18, 25–27), and that the few applicable
provisions did not authorize the imposition of meaningful
modifications (id. at pp. 18–19, 27–31). The relevant question
was “not whether the regulations granted the local agency some
discretion in the abstract, but whether the regulations granted
the agency discretion regarding the particular project. . . . [A]
regulation cited as conferring discretion must have been
relevant to the project.” (Id. at p. 25.) Because the discretionary
provisions were not relevant to the permit at issue, the court
held that the agency properly classified its issuance as
ministerial. (Id. at p. 32; see also Prentiss v. City of South
Pasadena (1993) 15 Cal.App.4th 85, 97.) Permits issued under
an ordinance are not necessarily discretionary simply because
the ordinance contains some discretionary provisions.
The CEQA Guidelines support this conclusion. A
discretionary project is one that “requires the exercise of
judgment or deliberation” when the agency decides to approve
or disapprove it. (CEQA Guidelines, § 15357, italics added.) If
the circumstances of a particular project do not require the
exercise of independent judgment, it is not discretionary.
Additionally, the CEQA Guidelines specifically allow “case-by-
case” classifications, indicating that projects approved under a
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PROTECTING OUR WATER AND ENVIRONMENTAL RESOURCES v.
COUNTY OF STANISLAUS
Opinion of the Court by Corrigan, J.
particular ordinance can be either discretionary or ministerial
depending on the circumstances. (CEQA Guidelines, § 15268,
subd. (a).)
Chapter 9.36 incorporates a number of standards that
may never come into play in the issuance of a particular permit.
Standard 8.A only applies when there is a contamination source
near a proposed well. If no contamination source is identified
during the permit approval process, the discretion conferred by
Standard 8.A will not be involved in that individual issuance
decision. As a result, all well construction permits are not
necessarily discretionary projects. The same principle would
apply to Standards 8.B and 8.C. We have declined to determine
whether those provisions confer discretionary authority in some
instances. We need not do so here, in light of our analysis of the
authority granted by Standard 8.A. Even if Standards 8.B and
8.C might be understood to grant discretionary authority in
some cases, we could not conclude that they would always do so.
Standard 8.B only applies when a proposed well is downhill from
a contamination source. Standard 8.C is only implicated when
a proposed well is in a flood area. In other words, like Standard
8.A, Standards 8.B and 8.C may or may not be involved in the
issuance of a particular permit.11
11
Plaintiffs have also asked us to review whether (1) any
other standards in Bulletin No. 74 are incorporated into Chapter
9.36 and (2) the inclusion of those standards makes permit
issuance discretionary. The Court of Appeal declined to address
these questions because it found that the discretion conferred by
Standard 8.A made permit issuance a discretionary project.
These questions should be answered by the Court of Appeal on
remand in the first instance.
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PROTECTING OUR WATER AND ENVIRONMENTAL RESOURCES v.
COUNTY OF STANISLAUS
Opinion of the Court by Corrigan, J.
County’s final argument is that a decision for plaintiffs
will result in increased costs and delays in the issuance of well
construction permits. But CEQA cannot be read to authorize
the categorical misclassification of well construction permits
simply for the sake of alacrity and economy. It bears repeating
that an individual permit may still be properly classified as
ministerial. Moreover, the fact that an individual project is
classified as discretionary does not mean that full
environmental review, including an EIR, will always be
required. The project may qualify for another CEQA exemption
or the agency may be able to prepare either a negative
declaration or a mitigated negative declaration after its initial
study. Any of these circumstances would obviate the need for
an EIR.
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. It may classify a
particular permit as ministerial (CEQA Guidelines, § 15268,
subd. (a)), and develop a record supporting that classification.
III. CONCLUSION
The Court of Appeal holding that all permit issuances
under Chapter 9.36 of the Stanislaus County Code are
discretionary is reversed. Plaintiffs are not entitled to a judicial
declaration to that effect nor to an injunction requiring County
to treat all such permit issuances as discretionary.
However, plaintiffs are entitled to a declaration that
County’s blanket ministerial categorization is unlawful. The
Court of Appeal holding that plaintiffs were entitled to such
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PROTECTING OUR WATER AND ENVIRONMENTAL RESOURCES v.
COUNTY OF STANISLAUS
Opinion of the Court by Corrigan, J.
relief is affirmed. The matter is remanded to the Court of
Appeal for it to evaluate the questions it declined to answer and
to reassess plaintiffs’ entitlement to relief.
CORRIGAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
25
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Protecting Our Water and Environmental Resources v. County of Stanislaus
__________________________________________________________________________________
Unpublished Opinion XXX NP opn. filed 8/24/18 – 5th Dist.
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S251709
Date Filed: August 27, 2020
__________________________________________________________________________________
Court: Superior
County: Stanislaus
Judge: Roger M. Beauchesne
__________________________________________________________________________________
Counsel:
Law Offices of Thomas N. Lippe and Thomas N. Lippe for Plaintiffs and Appellants.
Law Offices of Stephan C. Volker, Stephan C. Volker, Alexis E. Krieg, Stephanie L. Clarke and Jamey
M.B. Volker for North Coast Rivers Alliance as Amicus Curiae on behalf of Plaintiffs and Appellants.
Law Office of Babak Naficy, Babak Naficy; M. R. Wolfe & Associates and Mark R. Wolfe for California
Water Impact Network, California Wildlife Foundation and Landwatch Monterey County as Amici Curiae
on behalf of Plaintiffs and Appellants.
Shute, Mihaly & Weinberger, Matthew D. Zinn, Sarah H. Sigman, Lauren M. Tarpey, Peter J. Broderick;
John P. Doering and Thomas E. Boze, County Counsel, and Robert J. Taro, Assistant County Counsel, for
Defendants and Respondents.
Dennis Bunting, County Counsel (Solano), Peter R. Miljanich, Deputy County Counsel; Jennifer Henning;
and Laura E. Hirahara for the California State Association of Counties as Amicus Curiae on behalf of
Defendants and Respondents.
Herum\Crabtree\Suntag, Steven A. Herum and Jeanne M. Zolezzi for Association of California Water
Agencies and California Special Districts Association as Amici Curiae on behalf of Defendants and
Respondents.
Holland & Knight, Jennifer L. Hernandez, Daniel R. Golub and Emily Lieban for California Building
Industry Association as Amicus Curiae on behalf of Defendants and Respondents.
June Babiracki Barlow and Jenny Li for California Association of Realtors as Amicus Curiae on behalf of
Defendants and Respondents.
Miller Starr Regalia, Arthur F. Coon and Matthew C. Henderson for League of California Cities as Amicus
Curiae on behalf of Defendants and Respondents.
Rita L. Neal, County Counsel (San Luis Obispo), Erica A. Stuckey, Deputy County Counsel; Roll Law
Group, Courtney Vaudreuil; Stoel Rives, Timothy M. Taylor, Allison C. Smith; Adamski Moroski Madden
Cumberland & Green, Thomas D. Greene and Michelle L. Gearhart for County of San Luis Obispo,
JUSTIN Vineyards and Winery LLC, Lapis Land Company, LLC, Paso Robles Vineyards, Inc., and
Moondance Partners, LP, as Amici Curiae on behalf of Defendants and Respondents.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Matthew D. Zinn
Shute, Mihaly & Weinberger LLP
396 Hayes Street
San Francisco, CA 94102
(415) 552-7272
Thomas N. Lippe
Law Offices of Thomas N. Lippe, APC
201 Mission Street, 12th Floor
San Francisco, CA 94105
(415) 777-5604