Friday, August 28, 2020
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County Can’t Classify All Actions on Well Permits as Ministerial—S.C.
Some Determinations Entail Exercise of Discretion, Corrigan Writes, Requiring CEQA Review
By a MetNews Staff Writer
The California Supreme Court held yesterday that a county’s characterization of the issuance of all well permits as ministerial, and thus not subject to review under the California Environmental Quality Act, is unlawful, handing a partial win to environmental and water-conservation groups that have called for stricter well-drilling scrutiny.
While a Stanislaus Superior Court judge declared all such permit decisions to be ministerial, and the Fifth District Court of Appeal reversed, pronouncing all determinations of that sort to be discretionary—requiring CEQA review—the high court avoided an absolutist approach. Justice Carol A. Corrigan wrote for a unanimous court:
“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.”
County Has Latitude
She explained:
“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.”
Corrigan said that because a state standard “gives County sufficient authority, at least in some cases, to render [well-permit] issuances discretionary, County’s blanket classification violates CEQA,” but that does not mean, contrary to the Fifth District’s holding, that the issuance of a permit “is always a discretionary project,” she added, elaborating:
“Permits issued under an ordinance are not necessarily discretionary simply because the ordinance contains some discretionary provisions….
“If the circumstances of a particular project do not require the exercise of independent judgment, it is not discretionary.”
Declaratory, Injunctive Relief
The plaintiffs are Protecting Our Water and Environmental Resources and the California Sportfishing Protection Alliance. They seek declaratory and injunctive relief.
They are entitled to a declaration that “classifying all issuances as ministerial violates CEQA,” Corrigan said, but “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.”
The opinion remands the case to the Fifth District “for it to evaluate the questions it declined to answer and to reassess plaintiffs’ entitlement to relief.”
The case is Protecting Our Water and Environmental Resources v. County of Stanislaus, 2020 S.O.S. 4182.
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