Filed 6/28/18; pub. order 7/27/18 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
CALIFORNIA WATER IMPACT 2d Civil No. B283846
NETWORK, (Super. Ct. No. 16CVP-0195)
(San Luis Obispo County)
Petitioner and Appellant,
v.
COUNTY OF SAN LUIS
OBISPO et al,
Respondents,
JUSTIN VINEYARDS AND
WINERY, LLC et al.
Real Parties in Interest and
Respondents.
The County of San Luis Obispo (County) issues well
permits without conducting a California Environmental Quality
Act (CEQA) review. Appellant California Water Impact Network
petitioned for a writ of mandate to compel County to comply with
CEQA. County asserted that well permits are ministerial actions
exempt from CEQA. The trial court agreed with County and
dismissed appellant’s petition on demurrer.
Appellant relies on Chapter 8.40 of the San Luis Obispo
County Code, which is intended to prevent groundwater pollution
or contamination during well construction. We conclude that
issuance of a well permit is a ministerial action under the
ordinance. If an applicant meets fixed standards, County must
issue a well permit. The ordinance does not require use of
personal or subjective judgment by County officials. There is no
discretion to be exercised. CEQA does not apply. We affirm.
FACTS AND PROCEDURAL HISTORY
In 2016, County issued permits to construct wells on land
belonging to four agricultural enterprises, who are the real
parties in interest (RPIs).1 RPIs’ operations, mostly vineyards,
are 160 acres to over 400 acres in size. The well depths range
from 500 to 1000 feet. County authorized the wells without
conducting a CEQA review.
Appellant petitioned for a writ of mandate, challenging
RPIs’ well permits. As amended, the petition alleges that County
made a discretionary decision to issue permits allowing RPIs to
extract groundwater; this requires environmental review under
CEQA. The petition states, “As a result of its de facto policy of
processing all well permit applications as ministerial, the County
has conducted no analysis whatsoever of the cumulative impacts
associated with its ongoing approval of several dozen, if not
hundreds, of well construction permits over the past several
years.”
1RPIs are Lapis Land Company, LLC; Justin Vineyards
and Winery, LLC; Paso Robles Vineyards, Inc.; and Moondance
Partners, LP.
2
Appellant alleges that County “prejudicially abused its
discretion by approving the well permits without first evaluating
whether it may have significant individual or cumulative impacts
on the environment, in violation of CEQA.” The petition requests
an order directing County to set aside its actions in issuing well
permits and comply with CEQA before approving or denying the
well applications.
County and RPIs demurred. They argued that CEQA does
not apply to the issuance of well construction permits, a purely
ministerial function under County ordinance. County asserted
that the only issue with respect to well construction relates to
water quality, to prevent contamination of groundwater;
depletion of groundwater supply quantity is not an issue. In
County’s view, a permit must be approved once it determines that
the applicant is a licensed drilling contractor who will comply
with the technical requirements specified by ordinance.
Appellant countered that County bypassed public
disclosure of potentially significant impacts to groundwater
resources by characterizing its review of well applications as
purely ministerial, failing to evaluate the severity of the impacts
and identify mitigation measures with the benefit of public
review and comment. Appellant asserted that County has broad
discretion to impose environmental conditions on well permits,
beyond the objective requirements specified in state Department
of Water Resources (DWR) Bulletins.
The trial court concluded that the standards for issuing a
well drilling permit are ministerial, with no discretion to shape a
project to address environmental concerns. Accordingly, CEQA
did not apply. The court sustained the demurrers and entered
judgment for respondents.
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DISCUSSION
1. Review
Review is de novo. (Committee for Green Foothills v. Santa
Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) We
examine the petition and the governing ordinance to determine
whether County had a duty to conduct a CEQA review, or
whether issuing a permit is a ministerial act exempt from CEQA.
(San Bernardino Associated Governments v. Superior Court
(2006) 135 Cal.App.4th 1106, 1113-1114 [demurrer was properly
sustained as a matter of law because an agency’s action was
ministerial].)
2. Overview: State Water Policy Principles
State policy requires that water resources be put to
beneficial use. Our Constitution declares that “the general
welfare requires that the water resources of the State be put to
beneficial use to the fullest extent of which they are capable, and
that the waste or unreasonable use or unreasonable method of
use of water be prevented, and that the conservation of such
waters is to be exercised with a view to the reasonable and
beneficial use thereof in the interest of the people and for the
public welfare.” (Cal. Const., art. X, § 2.) Use of water for
domestic purposes and irrigation is considered beneficial. (Wat.
Code, § 106.)
Groundwater belongs to the state, “but may be extracted by
those with the right to do so, including those whose land overlies
the groundwater source.” (Delaware Tetra Technologies, Inc. v.
County of San Bernardino (2016) 247 Cal.App.4th 352, 358.)
Local agencies manage the appropriation of groundwater through
a permitting system. (City of Santa Maria v. Adam (2012)
211 Cal.App.4th 266, 278.)
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3. Discretionary vs. Ministerial Acts
CEQA applies to projects subject to discretionary approval
by the government; it does not apply to ministerial acts. (Pub.
Res. Code, § 21080, subds. (a), (b)(1).) A project is an activity that
may cause either a direct physical change in the environment, or
a reasonably foreseeable indirect change (Id., § 21065) with
“tangible physical manifestations that are perceptible by the
senses.” (Martin v. City and County of San Francisco (2005)
135 Cal.App.4th 392, 403.)
A discretionary project “requires the exercise of judgment
or deliberation”; it does not encompass situations where the
agency “merely has to determine whether there has been
conformity with applicable statutes, ordinances, or regulations.”
(Cal. Code Regs., tit. 14, § 15357.)
A ministerial action is one “involving 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 discretion or
judgment in reaching a decision. A ministerial decision involves
only the use of fixed standards or objective measurements, and
the public official cannot use personal, subjective judgment in
deciding whether or how the project should be carried out.”
(Cal. Code Regs., tit. 14, § 15369.)
The legislative rationale for excluding purely ministerial
projects from CEQA “implicitly recognizes that unless a public
agency can shape the project in a way that would respond to
concerns raised in an EIR [Environmental Impact Report] . . .
environmental review would be a meaningless exercise.”
(Mountain Lion Foundation v. Fish & Game Com. (1997) 16
Cal.4th 105, 117.) Absent discretion to deny a permit, an agency
has no duty to conduct a CEQA review, no matter what “terrible
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environmental consequences” an EIR might reveal. (Leach v.
City of San Diego (1990) 220 Cal.App.3d 389, 394.)
The law administered by an agency is “the litmus for
differentiating between its discretionary and ministerial
functions.” (People v. Department of Housing & Community Dev.
(1975) 45 Cal.App.3d 185, 192.) The agency may determine what
acts are ministerial by analyzing its own laws (Cal. Code Regs.,
tit. 14, § 15268(a)), and its view of the scope and meaning of its
own ordinance is entitled to great weight unless that view is
clearly erroneous or unauthorized. (Friends of Davis v. City of
Davis (2000) 83 Cal.App.4th 1004, 1015.) Here, the law being
administered by County is Chapter 8.40 of the County Code.
4. The County Well Construction Ordinance
Chapter 8.40 of the County Code addresses wells. This
includes wells to extract water for irrigation. (Id., § 8.40.020.)2
The purpose of the chapter is to ensure that wells are
constructed, repaired, modified or destroyed “in such a manner
that the ground water of this county will not be contaminated or
polluted and that water obtained from wells will be suitable for
beneficial use and will not jeopardize the health, safety or welfare
of the people of this county.” (§ 8.40.010.)
Well permit applications submitted to the County must list
the proposed well location, depth and use, and describe nearby
property lines, sewage disposal systems, water courses or bodies,
drainage patterns, existing wells, and access roads. Only
licensed well drilling contractors may obtain permits.
(§ 8.40.040(a), (c).)
2Unlabeled section references are to the San Luis Obispo
County Code.
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Well permits “shall be issued” if they comply with County
and state standards. (§ 8.40.040(e).) County standards require
specified well seal depths, which appellant concedes are
ministerial. (§ 8.040.060(b).) Though groundwater extraction is
limited in “the coastal zone” to satisfy the state Coastal Act
(§ 8.040.065), appellant concedes that RPIs’ wells are not within
“the coastal zone.” This leaves open only the question of whether
state standards, set forth in DWR bulletins, require County to
exercise discretion before issuing a well permit. (§ 8.040.060(a).)
5. State DWR Standards Incorporated Into County Code
Chapter 8.40
County Code Chapter 8.40 incorporates DWR well
standards. (§ 8.40.060(a).) DWR sets “minimum standards of
well construction” (Wat. Code, § 231) to “protect the quality of
water used or that may be used for any beneficial use.” (Id.,
§ 13800.) Local agencies are required to adopt a well
construction ordinance “that meets or exceeds the standards
contained in [DWR] Bulletin 74.81.” (Id., § 13801, subd. (c).)
DWR Bulletin No. 74-81, entitled “Water Well Standards:
State of California,” reads: “To ensure the continued utility of
our underground resources, they must be protected. Standards
for both the construction of water wells and the destruction of
abandoned wells can help protect ground water quality.” It gives
specifications for well construction, including the required
distance between wells and sources of contamination (sewers,
sewage leech fields, cesspools, animal enclosures); well seals;
surface features; casing material, etc.
Bulletin No. 74-81 notes that careless well construction can
create a physical connection between pollution (unsanitary and
inferior-quality water) and usable water, citing “water-borne
disease outbreaks,” “undesirable chemicals, both toxic and
nontoxic,” and “seawater intrusion” as adverse effects on
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groundwater. The bulletin’s construction standards aim to
prevent “contamination and pollution” and ensure sanitary water
quality.3
DWR Bulletin No. 74-7, from 1971, specifically addresses
County. It lists “high nitrate concentrations” in County
groundwater—from waste disposal and use of fertilizers—as a
source of public and private concern, and refers to a 1964 typhoid
epidemic in Nipomo caused by the pollution of well water with
septic tank wastes. The Bulletin adopts standards for the Arroyo
Grande Basin “to prevent impairment of water quality” from
improperly constructed, abandoned or defective wells.
6. County Code Chapter 8.40 Is Ministerial and Does Not
Purport to Give County Any Discretion
Section 8.40.040 (e) states that well permits “shall be
issued” if state and County standards are met. Appellant cites no
case in which a landowner who wished to construct a well was
subject to a full CEQA review requiring an environmental impact
report. Issuance of building permits “shall be presumed to be
ministerial” under CEQA absent any discretionary provision in
the ordinance. (Cal. Code Regs., tit. 14, § 15268(b); Friends of
Juana Briones House v. City of Palo Alto (2010) 190 Cal.App.4th
286, 302-303.) A well building permit is a type of building
3 Section 8.40.060(a) does not list DWR Bulletin No. 74-90,
a supplement to Bulletin No. 74-81. However, County admittedly
uses Bulletin No. 74-90. The supplement pursues the theme that
“Improperly constructed . . . wells are a potential pathway for
introducing poor quality water, pollutants, and contaminants to
good-quality ground water” by allowing them to enter the well
bore or pass into an aquifer. While recommending “minimum
statewide standards for the protection of ground water quality,”
Bulletin No. 74-90 notes that local agencies “may need to adopt
more stringent standards for local conditions to ensure ground
water quality protection.”
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permit. So long as technical standards and objective
measurements are met, County must issue a well permit to
licensed contractors. “To the extent that grant or denial of the
construction permit is governed by fixed design and construction
specifications in statute or regulation, the official decision of
conformity or nonconformity leaves scant room for the play of
personal judgment.” (People v. Department of Housing &
Community Dev., supra, 45 Cal.App.3d at p. 193.)
Appellant concedes that County standards (relating to well
seal depths) are ministerial, but argued below that state
standards give County discretion to deny permits based on the
cumulative depletion of groundwater.4 However, state DWR
standards incorporated into the County Code relate to ground
water quality. The effect of RPIs’ wells on ground water quality
is not at issue here, and nothing in the DWR Bulletins gives
County discretion to impose limitations on water usage. Indeed,
DWR Bulletin No. 74-81 states that it is designed to protect
groundwater utility; it is not designed to ensure “the effective use
of these resources” through conservation. DWR Bulletin passages
cited in appellant’s brief expressly allude to “protection of
groundwater quality,” not depletion from overuse. (Italics
added.)
The DWR Bulletins contain technical specifications.
Appellant does not contend that the applicants here failed to
satisfy the specifications. County did not impose extra conditions
4 In its reply brief, appellant disclaims a goal of preserving
water supplies. This contradicts appellant’s argument to the trial
court that the purpose of the ordinance “is to protect groundwater
resources . . . not just quality, but . . . also supply.” Counsel
stated, “I think the intent of the standards is to protect the
resources, to protect the groundwater supply both in terms of
quality and sustainable use in the future.”
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beyond the standards imposed by the DWR Bulletins. (See Day
v. City of Glendale (1975) 51 Cal.App.3d 817, 822-824 [city
imposed discretionary safety conditions on a grading permit it
issued to put landfill in 70 acres of canyon]; Friends of Westwood
v. City of Los Angeles (1987) 191 Cal.App.3d 259, 274 [city
imposed discretionary conditions on a high-rise building permit
because the project affected public streets outside the building].)
DWR Bulletin No. 74-81 allows localities to deviate from
state standards and enact different standards for “unusual
conditions.” County did not deviate from DWR standards in
adopting section 8.40.060(a): it reads, “Standards for the
construction, repair, modification or destruction of wells shall be
as set forth” in DWR Bulletins. The standards set forth in the
Bulletins are technical requirements that do not call for the
exercise of subjective judgment.
Appellant suggested in the trial court that County could
impose additional conditions, for example, pump limits and
subsidence monitoring. These are not authorized by Chapter
8.40, nor can we imply the possibility of imposing such
conditions. Rules of statutory interpretation prevent us from
rewriting laws. Our job “is simply to ascertain and declare what
the statute contains, not to change its scope by reading into it
language it does not contain . . . . [Courts] may not rewrite the
statute to conform to an assumed intention that does not appear
in its language.” (Vasquez v. State of California (2008) 45 Cal.4th
243, 253.)
The purpose of Chapter 8.40 is to prevent contamination or
pollution of groundwater during well construction, repair,
modification or destruction. Only an impermissible rewriting of
the ordinance would allow us to infer a legislative intent to
condition well permits on pump limits or subsidence monitoring,
which have nothing to do with groundwater pollution. The
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County has no discretion to impose water usage conditions on
permits issued under Chapter 8.40.
Appellant’s claim that County has some discretion in
issuing well permits does not affect our analysis. “‘CEQA does
not apply to an agency decision simply because the agency may
exercise some discretion in approving the project or undertaking.
Instead to trigger CEQA compliance, the discretion must be of a
certain kind; it must provide the agency with the ability and
authority to “mitigate . . . environmental damage” to some
degree.’” (San Diego Navy Broadway Complex Coalition v. City of
San Diego (2010) 185 Cal.App.4th 924, 934.)
The well permitting ordinance does not become
discretionary merely because it states that an applicant must
include any “information as may be necessary to determine if
underground waters will be protected.” (§ 8.40.040(a)(6).) The
subcontext of this provision is whether underground waters will
be protected from contamination or pollution. (§ 8.40.010.) The
ordinance does not give County discretion to shape a well permit
to mitigate potential environmental damage arising from
groundwater overuse. The instruction to applicants to include all
necessary information does not transform the inquiry into a
discretionary review.
A new state law addresses groundwater depletion. The
Legislature enacted the Sustainable Groundwater Management
Act (SGMA) in 2014, empowering local agencies to adopt
groundwater management plans tailored to community resources
and needs. (Wat. Code, § 10720 et seq.) In 2015, County began
implementing groundwater preservation measures. (E.g., County
Ord. No. 3307 [requiring groundwater conservation in specified
areas] and County Resolution No. 2015-288 [regarding a
countywide water conservation program].) SGMA is not
addressed in County Code Chapter 8.40, the law at issue here.
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Appellant’s concerns about groundwater sustainability do not
empower the courts to rewrite County Code Chapter 8.40 to
hasten appellant’s legislative goals. Those goals must be
addressed to County’s elected officials as they implement SGMA.
Appellant did not and cannot plead a cause of action
requiring County to comply with CEQA before issuing well
permits under County Code Chapter 8.40. No aspect of that
ordinance, or the DWR standards it incorporates, supports an
interpretation that well permits are discretionary. Instead, the
statutory scheme imposes fixed technical requirements. When
those requirements are met—and appellant does not allege
otherwise—issuance of a well permit is a ministerial act. CEQA
does not apply to the ministerial act of issuing a well permit.
DISPOSITION
The judgment is affirmed. Costs are awarded to
respondents, as the prevailing parties on appeal. (Cal. Rules of
Court, rule 8.278(a)(1).)
PERREN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
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Barry L. LaBarbera, Judge
Superior Court County of San Luis Obispo
______________________________
M.R. Wolfe & Associates and Mark R. Wolfe; Law Offices of
Babak Naficy and Babak Naficy, for Petitioner and Appellant.
Rita L. Neal, Timothy McNulty and Erica A. Stuckey,
County Counsel, for Respondents County of San Luis Obispo, et
al.
Roll Law Group, Courtney Vaudreuil, Johnny Traboulsi,
Sophie-Nic Froelich and Robert Donnelly Thornton, for Real
Party in Interest and Respondent Justin Vineyards and Winery,
LLC.
Stoel Rives, Timothy M. Taylor, Carissa M. Beecham,
Wesley A. Miliband and Eric R. Skanchy, for Real Party in
Interest and Respondent Lapis Land Company, LLC.
Adamski Moroski Madden Cumberland & Green, Thomas
D. Green and Michelle L. Gearhart, for Real Parties in Interest
and Respondents Paso Robles Vineyards, Inc. and Moondance
Partners, LP.
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Filed 7/27/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
CALIFORNIA WATER IMPACT 2d Civil No. B283846
NETWORK,
(Super. Ct. No. 16CVP-0195)
Petitioner and Appellant,
(San Luis Obispo County)
v.
ORDER CERTIFYING OPINION
COUNTY OF SAN LUIS OBISPO et al, FOR PUBLICATION
Respondents, [NO CHANGE IN JUDGMENT]
JUSTIN VINEYARDS AND WINERY,
LLC et al.
Real Parties in Interest and
Respondents.
THE COURT:
The opinion in the above-entitled matter filed on June 28, 2018, was
not certified for publication in the Official Reports. For good cause it now
appears that the opinion should be published in the Official Reports and it is
so ordered.
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