Protecting Our Water and Environmental Resources v. County of Stanislaus

The California Environmental Quality Act (CEQA or the

Act; Pub. Resources Code, § 21000 et seq.) 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.

PROTECTING OUR WATER AND ENVIRONMENTAL RESOURCES v.

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2

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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3

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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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-bycase 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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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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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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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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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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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-bycase” classifications, indicating that projects approved under a

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Opinion of the Court by Corrigan, J.

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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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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.

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 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.